Armstrong and Oates

FAMILY COURT OF AUSTRALIA

ARMSTRONG & OATES

[2016] FamCA 611

FAMILY LAW – DOMESTIC RELATIONSHIP – meaning – comparison with de facto relationship where dispute about when domestic relationship finished – significance (if any) thereof – contributions – nature of relationship – effect on contributions – s 19(2) factors.

Domestic Relationships Act 1994 (ACT) – ss 3, 13, 15, 19

Family Law Act 1975 (Cth)
Jurisdiction of Courts (Cross-Vesting) Act 1993 (ACT)

Stanford v Stanford [2012] HCA 52

APPLICANT:

Ms Armstrong

RESPONDENT:

Mr Oates

FILE NUMBER:

CAC

917

2011

DATE DELIVERED:

18 July 2016

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Faulks DCJ

HEARING DATE:

24 and 26 April 2012 and 10 February 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Farrar

SOLICITOR FOR THE APPLICANT:

Farrar Gesini Dunn

COUNSEL FOR THE RESPONDENT:

Ms Haughton

SOLICITOR FOR THE RESPONDENT:

Mazengarb Family Lawyers

Orders

Within 60 days the applicant pay to the respondent the sum of $100,000.
Within 60 days or contemporaneously with the payment referred to above the respondent transfer to the applicant all of his right, title and interest in the property known as B Street, Suburb A in the Australian Capital Territory, being the residue unexpired of a crown lease for 99 years recorded as Certificate of Title Volume …, Folio 82 in the Land Titles Registry at Canberra being Block …, Section … Suburb A. The applicant will bear the costs of the preparation of the transfer.
Subject to the collection by the respondent of any items of personality still in the Suburb A property which are agreed to be his, and subject to the agreement of the parties, and these orders, all real or personal in the possession or control of either party is, as against the other party, his or her property both at law and in equity.
Each of the parties indemnify and keep the other indemnified against any liability in respect of any property in his or her name, or to which he or she is entitled at law. In the case of the applicant this includes the property in Suburb A and in the case of the respondent the property C Street, Suburb C purchased by him subsequent to the parties’ separation.
All material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.
Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it. Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.
The matter be removed from the Pending Cases Inventory.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Armstrong & Oates has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 917 of 2011

Ms Armstrong

Applicant

And

Mr Oates

Respondent

REASONS FOR JUDGMENT

Foreword

At the outset may I express my sincere apologies for the time it has taken to deliver this judgment. I am sorry for the pain the delay must have caused the applicant and the respondent. I hope my decision hereafter expressed enables both parties to finally get on with their lives.

Introduction

The parties in this matter were in dispute about the division of property between them as a consequence of the finalisation of their relationship. The proceedings were commenced in the Supreme Court of the Australian Capital Territory with an application on the part of the applicant, Ms Armstrong, who sought leave from the Court to institute proceedings after the expiration of the limitation period prescribed by the Domestic Relationships Act 1994 (ACT) (the “DRA”).
Section 13 of the Domestic Relationships Act provides as follows:
(1) An application for an order under this part by a party to a domestic relationship that has ended must not be made more than 2 years after the day on which the relationship ended.
(2)A court may grant leave to a person to apply for an order under this part after the end of the period referred to in subsection (1) if it is satisfied that greater hardship would be caused to the applicant if leave were refused than would be caused to the respondent if leave were granted.
The respondent in this matter consented to an order granting such leave.
Accordingly, there was no procedural consequence as to the date on which the relationship ended. That date was however a matter of some controversy between the parties. The respondent asserted that the relationship ended in 2003 whereas the applicant maintains that she informed the respondent that the relationship between them was finished in April 2007. She suffered a stroke with significant consequences to her health about two months later.
It was common ground between the parties that the respondent had vacated the bedroom that they had previously shared and moved into the study in 2003. Although it was news to the applicant, it was also not contested that the respondent had commenced a romantic relationship with another person in or about August 2004.
There was some initial dispute between the parties as to whether or not a “domestic relationship” existed from the time that they both agreed that it commenced which was in or about the end of 1992 or the beginning of 1993 when the applicant moved to Canberra and they began to live together until its finalisation in either 2003 or 2007.
As it was commented upon, and agreed during the course of the trial, it could not be said that the parties were in a de facto relationship as that term is understood in some State legislation and also under the Family Law Act 1975 (“the FLA”) for the whole of that period. It would be reasonable to say also perhaps, that they were not in a marriage-like relationship from 2003 until 2007.
Nevertheless, as the respondent declined to consent to the matter being dealt with under the FLA, (and no criticism is directed to him in relation to what was undoubtedly an option open to him) the nature of the relationship fell to be determined under the terms of the DRA.
The matter was transferred to this Court on 3 June 2011 by the Supreme Court of the Australian Capital Territory pursuant to the provisions of the Jurisdiction of Courts (Cross-Vesting) Act 1993 (ACT).
The DRA provides in s 3 as follows
domestic relationship" means a personal relationship between 2 adults in which one provides personal or financial commitment and support of a domestic nature for the material benefit of the other and includes a domestic partnership but does not include a legal marriage.
A number of things might be noted about the definition.
The reference to a domestic partnership refers to the Legislation Act and for all practical purposes is not relevant in this matter.
The relationship as between two adults, the sex of either is irrelevant.
The requirement is that one, not necessarily both, provides personal or (the word used is not conjunctive but alternative) financial commitment and support of a domestic nature for the material benefit of the other.
In this matter there was in the end no serious dispute that what existed between the parties at least until 2003 was a domestic relationship within the terms of the Act set out above.
From 2003 until 2007 the parties continued to meet expenses on an equal basis. They holidayed together and they shared alternate Christmases with each other’s families. It appears that they did not have a sexual relationship. During this period also the respondent had an intimate relationship with another person. It was also agreed that the respondent left the house early in the morning and returned quite late at night.
Some or all of those matters might seriously militate against the relationship being regarded as a de facto relationship. However, given the terms of the definition set out above and the agreed continuation of mutual contributions to the running of the household including very significantly the renovation of the household even after the relationship had terminated in 2007 I have no difficulty in finding that the parties were in a domestic relationship between about the end of 1992 (and the precise date of the commencement of the relationship is irrelevant for these purposes) and April 2007.
There was an issue in that the respondent asserted that he had delivered a letter to the applicant in 2003 indicating that the relationship had finished. He said that at that time he said to the applicant that he should buy a unit. He did not buy that unit until 2007. A letter was produced in the proceedings and became Exhibit A3 which the respondent initially acknowledged was the letter that he had given to the applicant but which the applicant asserted she had only come across and received in one form or another in 2007.
The respondent’s evidence about this letter was by any measure unsatisfactory. The story changed a number of times about the author of the letter and when it was given, (if it was) to the applicant. This issue was canvassed by me at some length during the course of submissions from each counsel and in particular with counsel for the respondent. My reasons for concluding as I do that the respondent was the author of the letter and that it was provided to the applicant in 2007 are adequately, in my opinion, set out during the exchange between counsel and me at that point. I have nothing to add to the comments I then made.
However, nothing much turns on this issue because in my opinion even if the respondent had in fact delivered a letter to the applicant in 2003 and if in fact he intended to bring to an end some form of the relationship between him and the applicant, the relationship which persisted between them from that time up until 2007 was in fact within the terms of the Act a domestic relationship. The width and attenuated nature of such relationships was a matter contemplated by the Legislative Assembly at the time the legislation was enacted.

What the parties sought

The orders sought by each of the parties are set out in Annexures 1 and 2 to these Reasons for Judgment.
In essence the respondent seeks that the applicant pay to him one half of the value (as at the date of trial) of the house in Suburb A which they bought together. The applicant seeks that she retain the house and not pay him any money by way of adjustment.
The property of the parties was the subject of agreement and the final balance sheet as between the parties is Annexure 3 to these reasons.
The respondent asserted somewhat inconsistently throughout his documents, in his evidence, and through his counsel, that contributions were made as to 60 per cent by him and 40 per cent by the applicant to 2003 and 50 per cent each, thereafter.
Counsel for the respondent argued that the funds accumulated by the respondent (as appearing in the Balance Sheet) and amounting to some $107,000 were accumulated post-separation and in some way be either reflected as an additional contribution from him post separation or alternatively should be quarantined.
The differences between the respondent’s counsel’s submissions and the respondent’s evidence about this matter are possibly explicable by the confusion demonstrated by the respondent in significant parts of his evidence.
Fortunately for him there were few issues in which credit was a significant matter. For an educated man who prided himself on his retention of relevant records and who had significant financial background (although his principle qualifications related mainly to psychology it appears) his recollection of financial matters and his uncertainty about what had happened and his apparent willingness to give sworn evidence by affidavit or orally which was contradictory to earlier evidence did not inspire a great confidence about what he said happened or about what he did or contributed.
I should add that this is not to suggest that he was deliberately setting out to be untruthful. I do not believe that he was. His confusion however was so evident that the reliability of his recollections and consequently of his evidence is seriously in doubt about most matters. However, for reasons that I will set out hereafter, little turns upon the differences between the parties.

The relevant law

The DRA provides in s 15 as follows
(1)On application by a party to a domestic relationship, a court may make an order adjusting the interests in the property of either or both of the parties that seems just and equitable to it having regard to—
(a) the nature and duration of the relationship; and
(b)the financial or non-financial contributions made directly or indirectly by or on behalf of either or both of the parties to the acquisition, conservation or improvement of any of the property or financial resources of either or both of them; and
(c)the contributions (including any in the capacity of homemaker or parent) made by either of the parties to the welfare of the other or any child of the parties; and
(d)the matters referred to in section 19 (2), as far as they are relevant; and
(e)such other matters (if any) as the court considers relevant.
(2)A court may make an order under subsection (1) whether or not it has declared the title or rights of a party in respect of the property.
It will be noted that the conditions are similar to, but not precisely the same as, the provisions under s 79 of the FLA relating to the division of property under that Act.
There are also, incorporated by reference, the provisions of s 19(2) of the DRA to the extent that they are relevant. They are as follows
(2)In exercising a power under subsection (1), a court must have regard to—
(a)the income, property and financial resources of each party; and
(b)the physical and mental capacity of each party for appropriate gainful employment; and
(c)the financial needs and obligations of each party; and
(d)the responsibilities of either party to support any other person; and
(e)the terms of any order made or proposed to be made under section 15 with respect to the property of either or both of the parties; and
(f)any payments made to the applicant, under an order of a court or otherwise, in respect of the maintenance of a child or children.
It should be noted initially that there is a distinction between the DRA and the FLA in that under s 79(2) of the FLA
The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
Whereas, s 15(1) of the DRA provides
… a court may make an order adjusting the interests in the property of either or both of the parties that seems just and equitable to it having regard to …
Section 79(2) of the FLA was the subject of consideration by the High Court of Australia in Stanford v Stanford[1] and it would be fair to say that as a consequence of that decision it is necessary for a Court exercising jurisdiction under the FLA to determine first that it would be just and equitable to make an order altering the interests of the parties.
[1][2012] HCA 52
In my opinion, a proper construction of the DRA does not require that as a pre-condition to jurisdiction under that Act. Indeed s 15(1) allows and permits the Court to make such order “as seems just and equitable”.
In this matter nothing turns on this distinction although it may in some other matters.
Each of the parties seeks an alteration in the interests of the other’s property. The applicant seeks (as appears from Annexure 1) that the respondent transfer to the applicant his (now) interest as a tenant-in-common in equal shares.[2]
[2] The applicant severed the joint tenancy subsequent to separation
The respondent seeks that the applicant transfer money to him by way of adjustment of the interests of the two of them. Each party is seeking an adjustment of his or her interests and on the narrowest construction of Stanford v Stanford that would be enough in itself to ground a judicial intervention.

Contributions of the parties

Each of the parties provided through their counsel very useful chronologies and with few exceptions there are not many facts in dispute.
It is common ground that prior to the commencement of the relationship the applicant had an unencumbered 50 per cent interest in a house in Melbourne which she subsequently sold in 1997 for $65,000. She had some furniture and a motor vehicle and savings of some $18,370. I accept that those were her initial assets at the time of the commencement of the relationship.
She also had some superannuation entitlements which have found their way into her current superannuation. The value of those superannuation entitlements was not determined in accordance with the regulations under the FLA (for obvious reasons) but was, in effect, agreed as being worth about $16,720 at the time.
For his part, the respondent had a Subaru motor vehicle, a block of land at E Town, New South Wales which he says was sold for $8,500 in 1993. He claimed in his affidavit and initially in his evidence that he had savings of about $6,600 but as commented by Mr Farrar, on behalf of the applicant, in cross-examination he agreed that the purchase of a motor vehicle had wiped out his savings.
During the course of the hearing further evidence came to light from other documents which suggested he had a number of term deposits. The evidence about these matters is one issue upon which the credibility of the respondent bears. It was difficult to determine from the evidence, as it finally emerged, what, if any, money he did have prior to the commencement of the relationship and I can make no finding on the evidence before me that would satisfactorily determine that issue. It was for him to establish the relevant facts and he failed to do so satisfactorily.
The respondent also had some miscellaneous tools and furniture and some superannuation worth about $5,739. Again, these are not precise or actuarial figures but seem to be about right for these purposes.
The applicant asserted through her counsel that her pre-relationship assets were worth or realised about $91,000 plus superannuation whereas the respondent had assets which realised about $35,000 plus superannuation.
The difficulties associated with the respondent’s evidence about what he had, mean that it is difficult for me to accept unequivocally his assertion about what he had. It may well be that the respondent had more money than the $35,000 set out above at that point, but on the evidence I am prepared to accept, there was a discrepancy between his initial “contributions” and those of the applicant which favoured the applicant.
Shortly after they began cohabitation the parties bought a 4WD. They agreed that they contributed equally to the purchase of that vehicle. The evidence again was somewhat uncertain at some points but in the end there is agreement that their contributions were equal.
They subsequently bought the major asset that is in contention between them - namely the Suburb A property. The applicant paid $10,000 from her bank account and the parties borrowed $98,000. The provenance of the balance of about $25,000 is not certain. In the circumstances, it is probable that the sum came from the parties own resources and should be regarded as contributed equally. The respondent was unable to demonstrate that he provided that money himself.

Thereafter, during the course of their relationship, the parties kept separate accounts and separate funds and (with almost a fervour) divided purchases, at least of the capital nature, between them on an equal basis.
In 1997, when the applicant sold her share in the property in Melbourne, she paid one half of the amount then outstanding off the mortgage.
The respondent continued to meet the mortgage payments and in that way contributed to the payment of the other half of the mortgage. While there is no evidence which suggests with precision what amounts the respondent contributed, given the nature of the relationship between the parties it seems reasonable to say that his periodic contributions for all practical purposes might be said to have equalised the lump sum contribution made by the applicant.
There were other purchases which were not within the ordinary pattern of the parties activities. In 1996 they bought a motorcycle for $5,000 and the respondent paid $3,500 and the applicant $1,500.
In November 2000 the applicant bought a motor vehicle for $21,000. This was eventually sold for $5,000 in 2007.
It seems to be agreed that most of the expenses of the holidays that the parties had overseas together were paid for by the respondent. These trips appeared to coincide with conferences that he undertook as part of his work but it was not contested that the additional expenses associated with the applicant’s accompanying him, in whole or in part, for the time he was away, were paid for by him.
During the whole of this period the respondent earned significantly more than the applicant. Nothing in my opinion in this matter turns on that fact. Each of the parties appeared in the circumstances to be working to an implicit, if not explicit, arrangement where each contributed in accordance with his or capacity to do so and I do not detect that either of them regarded their respective contributions as anything other than equal during this period. This in fact was a concession made by the respondent - except for a slight adjustment at least for part of the time.
I have no difficulty in finding that during the period of the relationship from 1993 until 2007 the parties contributed equally.
I add as a post-script in relation to that finding that the respondent’s contribution to the mortgage repayments should not be regarded exclusively as his contribution. The benefit to the parties in the lump sum contribution from the applicant offsets any additional claim the applicant may have to have contributed more to the paying off of the money due on the house.
In 2007 after the applicant had her stroke, the house was renovated to suit her needs, at a cost of $85,000. The respondent to his considerable credit contributed one half of that sum on the basis that the cash amount contributed by the applicant was matched by the sale proceeds of the two family cars together with additional funds from the respondent.
The renovations may or may not have increased the value of the property. To the extent that they did the respondent benefits from that increase in value in the figure agreed upon by the parties as the value of the property. The evidence touched at least laterally on the proposition that many of the improvements or renovations would not necessarily be specifically associated with the disabilities of the applicant.
I take note also of the fact that in her affidavit in paragraph 27 the applicant asserted that she paid for furniture, blinds and roof repairs. The respondent paid for most of the holidays and that the applicant paid for the bills that came in through the mail. In coming to the conclusion I did above, that their contributions to the date of the termination of their relationship were equal I have allowed for the fact that the parties entered into some form of “arrangement” which they regarded as satisfactory and which I will not interfere with.
Under s 15(1)(c) of the DRA contributions made (including any in the capacity of homemaker or parent) by either of the parties to the welfare of the other are to be taken into account.
The applicant asserts that this should be regarded as a further contribution from her and that she maintains that she did more housework then the respondent did.[3] I do not regard this as a matter which would alter the conclusions I have reached above and regard the arrangements that they entered into about the sharing of household activities for the benefit of each other or for their mutual benefit.
[3] [48] of her affidavit
What sort of order might be made in justice and equity is prescribed under the DRA s 15(1)(a) to include a consideration of the “nature and duration” of the relationship? This seemingly general prescription reflects the fact that the DRA contemplates that there could be some “carer relationships” included under the definition of a domestic relationship for example of an aging parent, or in some cases, an attenuated relationship involving no living together at all.[4]
[4] Section 3 DRA does not provide that the parties must live together
The nature of the relationship between the parties in this matter was at least akin to, if not the same as, a de facto relationship for the period of the relationship up to 2003. Thereafter, their degree of intimacy and mutual physical and emotional and psychological support may have been significantly diminished. However, they were still living under the one roof. Even if, as is suggested by the respondent, he regarded the relationship was over, he chose to remain living in the house and did so for some four years after his asserted decision.
The parties continued to meet expenses for their mutual advantage. The parties in fact went on holidays and slept in the same bed together when they were on holidays. This was certainly not a relationship which was one of service, or more particularly, paid service of one to the other (such as a carer arrangement).
Moreover, it persisted for a lengthy period and incorporated as appears from some of the comments made above, arrangements between the parties which it appeared at least for the period of the relationship to devolve for the benefit of each of the parties.

Section 19 factors

As with s 75(2) of the Family Law Act 1975, so with s 19 of the DRA, certain broader financial characteristics of the parties’ present relationship and future financial characteristics of the parties are to be taken into account in determining the sort of order to be made. The list provided under s 19(2) DRA does not contain a broad general provision akin to s 75(2)(o) of the FLA
any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.
However, under s 15 of the DRA in determining what order might seem just and equitable, the Court can have regard to (1)(e)
such other matters (if any) as the court considers relevant.
Taking however the specified grounds under s 19(2) of the DRA I make the following comments and findings.

(2)(a) The income, property and financial resources of each party

Particularly since her stroke the applicant’s financial capacity into the future is necessarily diminished. At the time of the hearing, she was working three days a week. It was suggested to her that she would be entitled to some form of partial financial support by way of pension.
The applicant appeared to be genuinely surprised that this might be suggested and indicated that she was determined in any event to pay her own way so far as she could. This was the subject of a submission from the respondent’s counsel who indicated that if the applicant did not choose to benefit from resources which might be available to her, then she could not complain about the discrepancy between her income and her outgoings and those of the respondent.
This argument however is without foundation. There was no evidence that the applicant was entitled to a pension. It may be that if she were so entitled, that her refusal to take advantage of it might have had the consequence suggested by counsel for the respondent. However, the evidence did not establish this point.
For his part the respondent was somewhat less than either certain or perhaps honest about what his income might be. I accept the fact that his income at the time of the trial was about $140,000 a year. This was some multiples of the income of the applicant. Moreover, he expected on his own evidence to work for another 20 years and to accumulate more superannuation. The discrepancy between his superannuation entitlements and those of the applicant was already considerable (over $100,000 based on the estimates given and agreed between the parties) and that discrepancy could only grow in the future.
Subsequent to separation the respondent bought another house which has a mortgage of more than $200,000 at the time of the trial. He had also accumulated savings - although they may have been the residue of what he had originally before the relationship - if indeed he had savings originally.
By contrast the applicant’s financial future was considerably more bleak.
The relationship between the respondent and the woman with whom he began a relationship in 2004 appeared to be one of intermittent coalescence rather than continuous mutual support and it seemed clear that there was no interdependence between the parties. To the extent that the relationship exists it is a benefit rather than a detriment to the respondent. The consequences of the relationship were not financially significant.
The financial needs of the applicant will continue to be significant although she was coping with her income at the time of trial and she indicated that she could borrow, at the time of the trial, about $123,000 if it were necessary to make a payment to the respondent for her to retain the house.
She was adamant that she wished to retain the house even though it was suggested in cross-examination that there were deficiencies (such as stairs) that may have rendered the house something less than useful to her.
This line of cross-examination did not impress me. The applicant had chosen to live in the house; had renovated it with her continuing needs in mind. She should not be forced into a ground storey flat as was somewhat insensitively suggested to her.
It is reasonable that given the discrepancy between the income and the financial futures of each of the parties that if she is able to do so, she should be able to retain the house. That of course does not mean that the interests of the respondent should be disregarded or that what he has contributed over the period should be disregarded either. However, the respondent himself does not seek that the house should be taken away from the applicant but only that she should be obliged to make a financial contribution to him in respect thereof.
There are no children of the relationship and neither party appears to have any responsibility for any other person.
Each of the parties has superannuation which cannot be divided under the DRA (in contra-distinction to the superannuation of parties in a de facto relationship under the FLA). The discrepancy between their respective superannuation entitlements and the prospect that the superannuation of the respondent will be significantly enhanced over the continuing years of his employment mean that this is a considerable factor to be taken into account in determining what is just and equitable between them.
It was commented during the course of submissions that the factors under s 15 are factors to the extent that they rely upon facts being found but being found over a period so that their precise dollar figure might not be accurately determined, taking account of such factors as inflation and the varying value of funds over the relevant period. On the other hand, the factors under s 19(2) are relative factors and the adjustment to be made between the parties by reference to them is not necessarily one to be calculated precisely by percentage.
What division should therefore be made?
Accepting as I do that the assets of the parties for the purposes of this division amount to some $757,964 I do not accept the $108,835 should be excluded. The applicant retains some $556,976. There should be some adjustment made under s 19(2) and s 15(1)(e) in favour of the respondent.
The sum of $108,835 is about 14 per cent of the total pool (excluding superannuation).
The difference between the superannuation entitlements of the parties as at trial was $141,285. That figure represented some 19 per cent of the total property pool excluding superannuation.

Summary

In accordance with the agreement of the parties the total property pool is $757,964. This sum by agreement excludes any alleged “add-back” for legal fees.
The property retained by the applicant includes the house at B Street, Suburb A (not just her half share) and the items referred to in the joint balance sheet.
I have found that the contributions up to the parties’ final separation in 2007 were equal for the reasons indicated above. I have also noted that there is at least a reasonable possibility that the $108,835 in savings or bank accounts in the position of the respondent at trial were accumulated post-separation. I have examined the significance of that in relation to the total property pool above.
The difference between the parties accumulated superannuation is $141,285 which figure is about 19 per cent of the total of the non-superannuation property. Given that the initial superannuation interests of the parties were both relatively small this gap between the entitlements of each of the parties is a significant factor to be adjusted for in favour of the applicant.
For the reasons indicated above, I am satisfied that the financial future of the respondent is significantly more favourable then is that of the applicant. That is a factor which should bring about an adjustment in favour of the applicant.
Overall, taking account of the nature of the relationship (which was unusual no matter how it might be construed) and the duration of some 13 years it seems to me that it is appropriate that there should be an adjustment in favour of the applicant overall of 10 per cent. This would mean that she receives 60 per cent of the total.
Of the items in the balance sheet allocated to the applicant she would receive $556,976 less the $100,000 I will order that she pays to the respondent. This means she will receive approximately 60 per cent of the total of the non-superannuation property pool.
In my opinion, such a division in the circumstances of the parties, taking account of the matters that I have indicated above, and in particular the nature and duration of the relationship is just and equitable.

I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 18 July 2016.

Associate:

Date:

Annexure 1

Minute of Orders Sought by the Applicant - 26 March 2012

That within 42 days, the Respondent transfer to the Applicant all of his interest in the property contained in Block …, Section … [Suburb A], described in Certificate of Title Volume … Folio … and otherwise known as [B Street, Suburb A] in the Australian Capital Territory.
That within 42 days, the Respondent collect (or as otherwise agreed) from the Applicant, at his own expenses, all of the Respondent’s chattels and personal effects situated at the [Suburb A] property.
That otherwise, each of the Applicant and the Respondent be, as against the other, the sole owner of any money standing in any bank account held by either of them, and any other good, chattel, motor vehicle or property, in their respective possession, or superannuation interest in each of their names respectively, at the date of these Orders.
That the Applicant and Respondent each indemnify each other against any liability in each of their names respectively, or encumbering or associated with property retained by each of them respectively.
That the Respondent pay the Applicant’s costs.

Annexure 2

Minute of Orders Sought by the Respondent – filed 24 April 2012

That within 42 days, the Applicant pays the Respondent the sum of $237,500.
That within 42 days, the Respondent transfer to the Applicant all of his interest in the property contained in Block …, Section … Suburb A, described in Certificate of Title Volume … Folio … and otherwise known as [B Street, Suburb A] in the Australian Capital Territory.
That within 42 days, the Respondent collects (or as otherwise agreed) from the Applicant, at his own expenses, all of the Respondent’s chattels and personal effects situated at the [Suburb A] property.
That otherwise, each of the Applicant and the Respondent be, as against the other, the sole owner of any money standing in any bank account held by either of them, and any other good, chattel, motor vehicle or property, in their respective possession, or superannuation interest in each of their names respectively, at the date of these Orders.
That the Applicant and Respondent each indemnify each other against any liability in each of their names respectively, or encumbering or associated with property retained by each of them respectively.

Annexure 3

Joint Balance Sheet

Asset	Ownership		Applicant		Respondent		Comments
[B Street, Suburb A]		Joint		$475,000 (50/50)		Agreed
[C Street, Suburb D]	Respondent		$320,000		Agreed
Less mortgage to CBA	$253,295		Agreed
Equity	$66,705
*Cars*
Motor vehicle 1	Applicant		$6,200		Agreed
Motor vehicle 2	Respondent		$2,000		Agreed
4WD	Respondent		$9,500		Agreed
Trailer, boat, tools	Respondent		$5,000		Agreed
*Bank accounts*
Cash management account	Applicant		$9,537		Agreed
MasterCard	Applicant		-$510
Term deposit (…)	Applicant		$26,914		Agreed
Term deposit (…)	Applicant		$34,835		Agreed
Streamline account	Respondent		$11,802		Agreed
NetBank saver	Respondent		$86,701		Agreed
Business transaction acc	Respondent		$10,332		Agreed
*Other*
Telstra shares	Respondent		$3,948		Agreed
Household contents	Applicant		$5,000		Agreed
Household contents	Respondent		$5,000		Agreed
Total:	$556,976		$200,988
$757,964
Superannuation
PSS	Applicant		$403,021.18		Agreed
UniSuper	Respondent		$544,306		Agreed
Total superannuation	$403,021.18		$544,306

[2016] FamCA 611

18 July 2016

Key Legal Topics

Areas of Law

Family Law

Property Law

Equity & Trusts

Legal Concepts

Remedies

Costs

Fiduciary Duty

Constructive Trust

Statutory Construction