BANCROFT and GARDENER

[2013] FCWAM 122

JURISDICTION : MAGISTRATES COURT OF WESTERN AUSTRALIA - 150 TERRACE ROAD

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: BANCROFT and GARDENER [2013] FCWAM 122

CORAM: MORONI M

HEARD: 22 OCTOBER 2013

DELIVERED : 7 NOVEMBER 2013

FILE NO/S: PTW 324 of 2012

BETWEEN: MR BANCROFT

Applicant

AND

MS GARDENER
Respondent

Catchwords:

FAMILY LAW - Jurisdiction - De facto relationship - Whether relationship "marriage-like" - Evaluation of factors indicating a de facto relationship - Relationship less than two years - Substantial contributions - Serious injustice

Legislation:

Family Court Act 1997 (WA)
Interpretation Act 1984 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant: Self represented litigant

Respondent: Mr M Kavanagh

Solicitors:

Applicant: Not Applicable

Respondent: Kavanagh Lawyers

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

Tristan & Olifient [2007] FCWA 43

Truman & Clifton [2010] FCWA 91

Van Jole v Cole (2000) 26 Fam LR 228

Varga & Kelty [2005] FCWA 80

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL
JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN

CHANGED

1The proceedings for determination by the Court comprise the Form 1 application of [Mr Bancroft] (“the Applicant”) filed on 19 January 2012 and the Form 1A response of [Ms Gardener] (“the Respondent”) filed on 15 June 2012.

2The Applicant seeks orders pursuant to certain provisions of Part 5A of the Family Court Act 1997 (WA) (“the Act”).

3Briefly put, the Applicant’s case is that the parties lived in a de facto relationship extending over a period of some 20 months, that he has made substantial contributions of the type caught by s 205ZG(4)(a), (b) and (c) of the Act and that failure to make the order he seeks would result in serious injustice to him.

4The Respondent’s case is, firstly, that there was no de facto relationship between the parties. In the alternative, the Respondent’s case is that the Applicant has not made substantial contributions of the type referred to above, and, further and in the alternative, there would be no serious injustice to the Applicant if the Court was to make no order under Part 5A of the Act.

Composition of the evidence

5The Applicant’s evidence-in-chief was comprised of his trial affidavit and Form 13 financial statement both filed on 24 July 2013.

6The Applicant did not call any witnesses.

7The Respondent’s evidence-in-chief was comprised of her trial affidavit and Form 13 financial statement both filed on 15 August 2013.

8The Respondent did not call any witnesses.

Relevant statutory provisions

9The first statutory provision of relevance is s 205Z of the Act, which provides as follows:

205Z. Where court may make order under this Division

(1)A court may make an order in relation to a de facto relationship only if satisfied —

(a)there has been a de facto relationship between the partners for at least 2 years;

(b)there is a child of the de facto relationship who has not yet attained the age of 18 years and failure to make the order would result in serious injustice to the partner caring or responsible for the child; or

(c)the de facto partner who applies for the order made substantial contributions of a kind mentioned in section 205ZG(4)(a), (b) or (c) and failure to make the order would result in serious injustice to the partner.

(2)In deciding whether there has been a de facto relationship between the partners for at least 2 years, the court must consider whether there was any break in the continuity of the relationship and, if so, the length of the break and the extent of the breakdown in the relationship.

(3)Subsection (2) does not limit the matters the court may consider.

10The expression “de facto relationship” is defined in s 13A of the Interpretation Act 1984 (WA) (“the Interpretation Act”) as follows:

13A. De facto relationship and de facto partner, references to

(1)A reference in a written law to a de facto relationship shall be construed as a reference to a relationship (other than a legal marriage) between 2 persons who live together in a marriage‑like relationship.

(2)The following factors are indicators of whether or not a de facto relationship exists between 2 persons, but are not essential —

(a)the length of the relationship between them;

(b)whether the 2 persons have resided together;

(c)the nature and extent of common residence;

(d)whether there is, or has been, a sexual relationship between them;

(e)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

(f)the ownership, use and acquisition of their property (including property they own individually);

(g)the degree of mutual commitment by them to a shared life;

(h)whether they care for and support children;

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

(3)It does not matter whether —

(a)the persons are different sexes or the same sex; or

(b)either of the persons is legally married to someone else or in another de facto relationship.

(4)A reference in a written law to a de facto partner shall be construed as a reference to a person who lives, or where the context requires, has lived, in a de facto relationship.

(5)The de facto partner of a person (the first person) is the person who lives, or lived, in the de facto relationship with the first person.

11In the event that the Applicant is able to satisfy the Court that the parties were in a de facto relationship extending over the period of 20 months alleged, or close thereto, and if the Court is satisfied that the Applicant has made substantial contributions of the type referred to in s 205Z(1)(c) of the Act and if the Court is satisfied that a failure to make an order would result in serious injustice to the Applicant, then the Court must turn its attention to s 205ZG of the Act.

12Section 205ZG provides, relevantly, as follows:

205ZG. Alteration of property interests

(1)In proceedings with respect to the property of de facto partners, or either of them, the court may make such order as it considers appropriate altering the interests of the parties in the property, including an order for a settlement of property in substitution for any interest in the property and including an order requiring either or both of the partners to make, for the benefit of either or both of the partners or a child of the de facto relationship, such settlement or transfer of property as the court determines.

(2)…

(3)The court must 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.

(4)In considering what order (if any) should be made under this section in proceedings with respect to any property of de facto partners, or either of them, the court must take into account —

(a)the financial contribution made directly or indirectly by or on behalf of a de facto partner to the de facto relationship or a child of the de facto relationship to the acquisition, conservation or improvement of any of the property of the de facto partners, or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the de facto partners or either of them;

(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a de facto partner or a child of the de facto relationship to the acquisition, conservation or improvement of any of the property of the de facto partners or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the de facto partners or either of them;

(c)the contribution made by a de facto partner to the welfare of the family constituted by the de facto partners and any children of the de facto partners, including any contribution made in the capacity of homemaker or parent;

(d)the effect of any proposed order upon the earning capacity of either de facto partner;

(e)the matters referred to in section 205ZD(3) so far as they are relevant;

(f)any other order made under this Act affecting a de facto partner or a child of the de facto relationship; and

(g)any child support under the Child Support (Assessment) Act that a de facto partner has provided, is to provide, or might be liable to provide in the future, for a child of the de facto relationship.

(5)…

(6)…

(7)…

(8)…

(9)…

13As will be seen from the text immediately above, s 205ZG(4)(e) of the Act imports the relevant matters referred to in s 205ZD(3) of the Act.

14Section 205ZD(3) of the Act provides as follows:

205ZD. Maintenance orders

(1)…

(2)…

(3)The matters to be taken into account are —

(a)the age and state of health of each of the de facto partners;

(b)the income, property and financial resources of each of the de facto partners and the physical and mental capacity of each of them for appropriate gainful employment;

(c)whether either de facto partner has the care or control of a child of the de facto relationship who has not attained the age of 18 years;

(d)commitments of each of the de facto partners that are necessary to enable the partner to support —

(i)himself or herself; and

(ii)a child or another person that the party has a duty to maintain;

(e)the responsibilities of either party to support any other person;

(f)subject to subsection (4), the eligibility of either party for a pension, allowance or benefit under —

(i)any law of the Commonwealth, of a State or Territory or of another country; or

(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia,

and the rate of any such pension, allowance or benefit being paid to either party;

(g)a standard of living that in all the circumstances is reasonable;

(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;

(i)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;

(j)the duration of the de facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;

(k)the need to protect a party who wishes to continue that party’s role as a parent;

(l)if either party is cohabiting with another person, the financial circumstances relating to the cohabitation;

(m)the terms of any order made or proposed to be made under section 205ZG in relation to the property of the parties;

(n)any child support under the Child Support (Assessment) Act that a de facto partner has provided, is to provide, or might be liable to provide in the future, for a child of the de facto relationship;

(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and

(p)the terms of any financial agreement or former financial agreement that is binding on the parties.

(4)…

Brief background

15The Applicant is presently 57 years of age being born [in] 1956 and he has casual employment as a [tradesman].

16The Applicant is living in rental accommodation in [Suburb A].

17The Respondent is presently 58 years of age being born [in] 1955 and she is employed on a full-time basis as a [manager].

18The Respondent lives in the property owned by her situated [in Suburb B] (“[Property A]”).

19The parties commenced a relationship in March of 2009, having met each other via recourse to a popular online dating website.

20According to the Respondent, the parties began to live together in May of 2009 when the Applicant took up residence at Property A.

21Although the Applicant has said that the parties were in a marriage-like relationship from March of 2009, it would appear to the Court that the parties only began living together in May of 2009.

22It is common ground that the relationship ended on 11 November 2010.

23Thus, the parties lived together for a period of about 18 months.

24There are no children of the relationship between the parties.

25During the relationship, the parties slept in the same bedroom and there was a sexual relationship between them, although the extent of that relationship was a matter of some dispute in the trial.

26When the parties first began to live together, the Applicant was self employed, generating income as a road pilot.

27As for the Respondent, it is common ground that she was employed continuously during the relationship, albeit that she changed employment several times.

28The Respondent asserts that in July of 2010 the Applicant gave up work altogether as a road pilot and did not work from that time until the date of separation.

29Unfortunately, neither party provided any evidence of his/her taxable income figures over the relevant period.

30The length of the relationship spans some three consecutive financial years, being the years ended 30 June 2009, 2010 and 2011.

31It would have been extremely helpful to the Court had such evidence been provided, particularly in respect of the year ended 30 June 2010.

32There is a dispute between the parties concerning the precise details of the management of their financial relationship whilst they lived together. What is clear though is that the parties did not acquire any property in their joint names, nor did they have any joint bank accounts, nor did they have any joint credit cards or other joint liability.

33The parties went away together on a number of holidays during the course of their relationship.

34Otherwise, there was one quite unusual feature of the relevant chronology and that relates to a decision the parties made in 2010 to host what they have described in the papers as a “commitment ceremony”. The relevant ceremony and celebration involved the parties meeting the cost of a fully catered party for family and friends. The evidence would suggest that it was a very expensive exercise for the parties.

35At some point in the latter half of 2010, the Respondent’s granddaughter made complaints of indecent dealings on the part of the Applicant.

36In the result, the Applicant was charged by police and faced trial in or about January of 2012.

37The Applicant was subsequently convicted of the offences and sentenced to 15 months imprisonment. The Applicant was released from prison after about seven or eight months and served the balance of his sentence on parole.

38The Applicant made it clear to this Court that he does not accept the verdict of the Court which convicted him and that he steadfastly maintains his innocence of the relevant charges.

39It would appear that the complaints made against the Applicant were the cause, or the substantial cause, of the parties separating on or about 11 November 2010 and remaining separated thereafter.

40At this point, it should be noted that at paragraph 129 of her trial affidavit, the Respondent asserts that her granddaughter made the relevant complaints in November of 2011, however, presumably that is a typographical error and the correct time is November 2010.

41Otherwise, there was one other significant event which occurred not long prior to the date of separation and it concerns the acquisition of a certain [Subaru] motor vehicle.

42In about September of 2010, the Respondent traded her [Mitsubishi] motor vehicle to purchase a near new Subaru motor vehicle.

43The cost of the Subaru vehicle was some $39,100. The Applicant contributed $31,350 towards the purchase price, with the Respondent receiving a $4,000 allowance for her Mitsubishi vehicle. The shortfall on the purchase cost was otherwise met by the Respondent.

44The Respondent is still in possession of the Subaru motor vehicle.

45According to her Form 13 financial statement, the Subaru motor vehicle is presently worth $19,620.

46Neither party led any expert evidence to establish the present value of the Subaru motor vehicle and the Applicant in the trial did not appear to take issue with the Respondent’s estimate of the present value of the vehicle.

47Otherwise, the relevant history of events is fairly unremarkable.

48Perhaps the only other matter to add is that following the breakdown of the relationship the Applicant received an inheritance of some $50,000 from the estate of his late step-mother. However, it would appear that most of that money was spent by the Applicant to cover his legal costs in respect of the criminal proceedings.

Relief sought by each of the parties

49As for the Applicant, he has never amended his Form 1 application filed on 19 January 2012 in which he sought an order that the Respondent pay to him the sum of $60,000.

50Otherwise, the Applicant proposed that there be no other orders made either altering interests in property or requiring a settlement of property in his favour in lieu of any order altering interests in property.

51As for the Respondent, she simply sought an order that the Applicant’s application be dismissed and that he pay her costs of the proceedings.

Was there a de facto relationship between the parties?

52The Court is bound to say that it was a little surprised to hear the Respondent’s counsel confirm at the commencement of the trial that the Respondent was not conceding that the parties were in a de facto relationship between May of 2009 and November of 2010.

53The Court has little difficulty in finding that there was a de facto relationship between the parties extending from May of 2009 until November of 2010.

54In the particular circumstances of this case, it is unnecessary for the Court to make very detailed findings of fact in respect of each and every of the relevant statutory indicators.

55In considering each of the relevant statutory indicators set out in s 13A(2) of the Interpretation Act, it needs to be borne in mind that not each and every single factor needs to be established by the Applicant in order to prove that there was a de facto relationship. All of the indicators are important but none of them individually is “essential”.

56Firstly, the length of the relationship is, on either view of the evidence, 20 months or so, the parties first forming their relationship in about March of 2009.

57Secondly, it is common ground that the parties have resided together over the whole of the period from May of 2009 until November of 2010, a period of 18 months or so. It is also significant that there were no other persons in residence at Property A during this period.

58Thirdly, as for the nature and extent of the common residence, the evidence provided to the Court would suggest that there was nothing particularly significant or unusual about the way in which the parties shared the occupation of Property A.

59That is to say, each of the parties appears to have played relatively traditional roles, with the Respondent accepting the responsibility for more of the work inside of the home, and the Applicant, being a relatively handy person, attending to management of maintenance items outside of the home, and the like.

60Neither party was involved in any other relationship whilst they shared a common residence and the way in which the parties actually managed their common residence was unremarkable.

61Fourthly, the Court needs to consider whether there has been a sexual relationship between the parties.

62On either view of the evidence, there was certainly a sexual relationship between the parties. This is hardly surprising given their individual circumstances and given the fact that they actually met having each had recourse to an online dating service.

63It seems to the Court to be undeniable that generally people would not be having recourse to an online dating service unless they were interested in a romantic relationship with another person. This would have certainly appeared to have been what has happened in the case of these parties.

64The parties met, obviously got on well, and within a very short time of meeting each other, decided to share a common residence.

65The Respondent confirms that the parties slept together in the master bedroom, presumably in the same bed. The Respondent admits that there was sexual intercourse, but says that it occurred rarely.

66The Applicant did not concede that sexual intercourse occurred as infrequently as the Respondent suggested, and, quite correctly, he said that there are many different ways people in relationships might express themselves sexually, short of actual intercourse.

67It is generally accepted that the expression “sexual relations” can mean different things to different people.

68For present purposes, it is unnecessary for the Court to be making detailed findings about the extent of the sexual relationship between the parties. Suffice it to say that there was a sexual relationship and that it is highly likely that the parties began to live together in the expectation that there would be an ongoing sexual relationship between them.

69Enough said on that topic.

70Fifthly, there is the issue of the degree of financial dependence or independence, in any arrangements for financial support between the parties.

71The Court is satisfied that, by and large, there was a significant degree of financial independence between the parties. This is not uncommon in de facto relationships entered into by people who might fairly be described as of relatively mature age.

72That is to say, it needs to be borne in mind that both parties were well over the age of 50 when they first began to live together. No doubt, each party had been involved in other romantic relationships long before meeting each other.

73Both parties were working at the time of commencing to live together. Each party owned property before beginning to live together.

74The relationship did not produce any children.

75In all of those circumstances, it is hardly surprising that there was a degree of financial independence between the parties.

76There was a financial benefit to both parties in sharing the same accommodation. Whilst it is not entirely true to say, as has been said in the past, that, “two can live as cheaply as one”, still, there are certain fixed costs relating to the maintenance of a home which do not increase whether one person or more lives in the home. However, that said, there are clearly other types of costs which do increase where there is more than one person in a household.

77The Court is satisfied by the evidence that the parties endeavoured to share the joint living costs on fair and reasonable terms.

78Next, there is the question of the ownership, use and acquisition of the property of the parties.

79Significantly, the parties never acquired any property in their joint names. Property A belonged to the Respondent before the parties began to live together.

80The Applicant had reasonably significant property at the commencement of the relationship, which he kept in his sole name.

81The Subaru motor vehicle, to which reference has been made above, was registered in the sole name of the Respondent. Of course, the mere fact of registration of a motor vehicle is not conclusive evidence of title, as is the case with real property.

82However, although the Applicant would not concede that his contribution towards the cost of acquisition of the Subaru motor vehicle was a gift, neither did he seek to argue that the Respondent held any part of her legal interest in the motor vehicle for his benefit under any form of resulting trust or constructive trust.

83It was also common ground that the parties did not create any joint financial liabilities, such as by arranging to have a joint credit card facility.

84The next of the statutory indicators concerns the degree of mutual commitment demonstrated by the parties to a shared life.

85In this respect, it has to be said that, of course, by any reasonable standard, this was a relatively short relationship. That said, two people can make a strong commitment to each other within a relatively short space of time. This is not uncommon.

86No doubt, each of the parties entered into this relationship with high hopes that it would be a longstanding relationship which made both parties happy. The general experience of the Court is that people do not enter into personal relationships in the hope or expectation that they will fail.

87In the particular circumstances of this case, the evidence concerning the substantial investment made by the parties in what has been described as the commitment ceremony which occurred in 2010 is compelling.

88On either view of the evidence, the financial investment of the parties in hosting this commitment ceremony was substantial. Indeed, it is a part of the Respondent’s own case that it was she who paid the great majority of the significant costs of the commitment ceremony.

89Why would the Respondent make such a significant investment if she was not committed to a shared life with the Applicant?

90Given the evidence around the hosting of the commitment ceremony and given the evidence around the acquisition of the Subaru motor vehicle at about the same time, it seems to the Court that, prior to the disclosures being made by the Respondent’s granddaughter, the relationship was progressing very well.

91Certainly, there was no suggestion that during the relationship either party was looking to form any relationship with any other person, or did so.

92On balance, the Court is satisfied that this relationship did carry a significant degree of mutual commitment to a shared life.

93The Applicant annexed to his trial affidavit (Appendix 6) copies of two long emails sent to him by the Respondent concerning their lives together. Those emails are dated 16 and 19 November 2010.

94Given the quite poignant content of those emails, it seems to the Court that it was always going to be a difficult task for the Respondent to establish that there was no mutual commitment by the parties to a shared life.

95Indeed, the general content of those emails appears to be quite inconsistent with the Respondent’s present stance that there was never a marriage-like relationship between the parties.

96As for the penultimate statutory indicator, as noted above, there are no children of this relationship. Furthermore, there are no children who have been cared for or supported presently by either party.

97The final statutory indicator concerns the reputation and public aspects of the relationship between the parties.

98Generally speaking, where there is a bona fide dispute between two litigants as to whether there was a de facto relationship ever in place, each party will call a number of witnesses in support of his or her case respectively regarding this particular indicator.

99So, it was somewhat surprising to see that neither party called any witnesses in this case to provide the Court with some evidence about how the relationship in question appeared to the outside world.

100Certainly, the evidence would suggest that neither party endeavoured to make any secret of the fact that the parties were living together. The way in which they shared their common residence would, most probably, appear to most third parties to resemble a fairly standard form of de facto marital relationship.

101It would have been interesting had either party called one or more of the guests who attended at the commitment ceremony. Most likely, any invitee would have formed the conclusion at the time that the parties were indeed in a committed and exclusive marriage-like relationship.

102What then are the relevant legal principles to be applied by the Court?

103For present purposes, it is unnecessary to quote from the many leading authorities in this area.

104Suffice it to say that there is substantial guidance on the subject to be found in paragraphs 335 to 355 of the judgment of the Family Court of Western Australia in Truman & Clifton [2010] FCWA 91. The passages in question are often quoted and his Honour’s analysis of the relevant authorities is extremely helpful. The relevant passages are lengthy and for present purposes there is no need for them to be recited.

105It is generally accepted that “marriage-like” relationships can take many shapes and forms, as indeed do many marriages. There is no one single template for a marriage or for a marriage-like relationship.

106Each particular case will always turn on its own particular set of facts. In the final analysis, it is for the Court to be persuaded, or otherwise, that a particular set of facts pertaining to a particular relationship will exhibit sufficient of the relevant statutory indicators to lead to the conclusion that the relationship in question should be considered to be a de facto relationship.

107Standing back and considering the evidence in its totality, the Court has little hesitation in finding that the relationship between the parties as from May of 2009 to November of 2010 carries more than sufficient of the indicia of a marriage-like relationship to constitute a de facto relationship for the purposes of Part 5A of the Act.

Has the Applicant made substantial contributions?

108Section 205Z(1)(c) of the Act refers to substantial contributions of a kind mentioned in s 205ZG(4)(a), (b) or (c) of the Act.

109That is to say, there are three broad categories of contributions which the Court must take into account.

110The first two groups of contributions need to be tied to the acquisition, conservation, or improvement of any of the property of the parties, or either of them.

111However, the third category of contributions, namely those caught by s 205ZG(4)(c) of the Act, are to be assessed at large.

112Perhaps the first thing to say is that the evidence presented by the Applicant would certainly not satisfy the Court that he has made substantial s 205ZG(4)(c) contributions. This is not a criticism of the Applicant.

113However, the point is that this was a childless and short relationship during which both parties worked away from the joint place of residence.

114The evidence satisfies the Court that it is likely to have been the Respondent who made the greater s 205ZG(4)(c) contributions of the two parties.

115The Applicant’s case though is that he has made substantial direct and indirect financial contributions towards the acquisition, conservation or improvement of various items of the Respondent’s property.

116Moreover, the Applicant also asserts that he has made direct non-financial contributions to the acquisition, conservation or improvement of the property of the Respondent, in terms of carrying out work at Property A.

117Perhaps at this point it may be useful to consider a financial snapshot of the financial positions of the parties as at the time when they first began to live together and as at the time of the trial.

118It is common ground that, in May of 2009, the Applicant was self employed working as a tradesman and that he had property in the form of cash in the bank of $180,000, a caravan home which had been purchased in May of 2007 for about $96,300 (the value of which in May of 2009 is unknown) and a Land Rover motor vehicle which the Applicant estimates to have been worth about $40,000 (that estimate not being supported by expert evidence).

119Otherwise, as at May of 2009, the Applicant had superannuation interests worth about $150,000.

120Presently, the Applicant has no cash savings, a motor vehicle worth $34,000 on his estimate and a couple of other items of property of minimal value.

121Otherwise, the Applicant’s superannuation entitlements have risen to a value of some $183,145.

122As for the Respondent, in May of 2009, she owned Property A, subject to a mortgage to ANZ Bank.

123The Respondent has estimated the value of Property A, as at May of 2009, at $480,000, subject to a mortgage under which there was owing $300,000.

124Otherwise, at the commencement of the de facto relationship the Respondent owned a Mitsubishi motor vehicle she estimates to have been worth $6,000 and household contents she estimates to have been worth $5,000.

125Otherwise, the Respondent had superannuation entitlements of about $41,000 at the commencement of the de facto relationship.

126As at the time of the trial, like the Applicant, the Respondent’s financial position has deteriorated.

127Also, like the Applicant, the Respondent’s own evidence of estimated values is not supported by any expert valuation evidence.

128Presently, the Respondent still owns Property A which she says is now still worth $480,000, but the mortgage balance has increased to $398,000.

129Thus, the present value of the Respondent’s equity in Property A has reduced to about $82,000.

130The Respondent still has furniture and contents which she estimates to be worth about $5,000 and she has a couple of other items of property of modest value.

131The Respondent still owns the Subaru motor vehicle referred to above. She estimates the current value of that vehicle to be $19,620.

132Again, neither party has adduced any expert evidence in respect of valuation issues. However, during the trial, the Applicant did not appear to quibble with the Respondent’s estimate of the present value of the Subaru motor vehicle.

133Having made those findings immediately above, again, as noted above, the Court would have been assisted considerably if each of the parties had provided to the Court evidence of his/her taxable income for the financial years ended 30 June 2009, 2010 and 2011.

134Of particular significance would have been the taxable income figures for the parties for the year ended 30 June 2010, given that the parties only lived together for a couple of months in the financial year both preceding and following the year ended 30 June 2010.

135Each of the parties has provided to the Court extremely detailed evidence of the payments he/she respectively alleges to have been made for joint benefit.

136Appendix 5 to the Applicant’s trial affidavit is a lengthy schedule prepared by him detailing his expenditure over the course of the relationship which he says was for joint benefit.

137The Respondent asserted that the Court should not place much weight on the content of Appendix 5, given that the Applicant did not annex original source documentation, such as receipts and invoices. This is a submission which does not find favour with the Court.

138The Applicant has said clearly that his very detailed schedule was prepared by him, having referred to supporting original source documentation. All or most of that documentation was included in the Applicant’s disclosure list and was available for inspection by the Respondent if she wished to check the Applicant’s calculations.

139The Respondent conceded that she did not ever ask to inspect the documents in the Applicant’s disclosure list and it would appear that neither did her solicitors.

140The Applicant’s case is that, leaving aside his contribution to the cost of the Subaru motor vehicle, he spent about $60,000 on joint expenses.

141The Respondent did paint a quite different picture and she asserts that whilst the Applicant may have from time to time made payments to cover household and related items, the arrangement between the parties was that she would refund a significant portion of those individual outlays.

142The Respondent explained that she was working full time whereas the Applicant often had much more free time available to him to actually go out and shop and purchase items and arrange services and so on. The Respondent says that this is the reason why the Applicant made payment of certain expenses in the first instance but that she made a number of significant payments to the Applicant in reimbursement.

143As for the Respondent, she too has provided very detailed evidence to the Court regarding the management of the parties’ finances during the time they lived together.

144This part of the Respondent’s case is covered at paragraphs 32 to 57 (inclusive) of her trial affidavit, which material includes several very detailed schedules of expenditure.

145Just as the Respondent’s counsel did not cross-examine the Applicant in any great detail concerning the individual items of expenditure alleged by him, neither did the Applicant cross-examine the Respondent in respect of the detail of her evidence in that part of her trial affidavit referred to immediately above.

146In the absence of detailed cross-examination, it is difficult for the Court to make findings in favour of one party or the other under this head.

147That said, there seems to the Court to be a fairly significant weakness in the Applicant’s case that he should be given full credit for each and every dollar he spent whilst living with the Respondent. It seems to the Court that, to select the example of money spent on holidays, the Applicant himself derived considerable benefit from the expenditure.

148That is to say, it is not the Applicant’s case that he spent a large sum of money sending the Respondent on holidays on her own. He was part of the experience and presumably he too enjoyed it.

149There is also considerable dispute between the parties about who paid for all of the food consumed during the relationship and, as significantly, who actually consumed the food. Again, it should be fairly obvious to all concerned that it is just not possible for the Court to carry out any precise mathematical analysis of the expenditure each party has made under this head and the actual benefit each received.

150It is true that the Applicant made payments to the Respondent which she has called board and which the Applicant has called a contribution towards the Respondent’s mortgage expenses.

151It needs to be borne in mind that the evidence would suggest that the Respondent was managing her mortgage and her finances adequately before she and the Applicant began to live together. That is to say, the evidence would suggest that the Respondent’s decision to form the de facto relationship was driven, not by a need for financial support, but simply by a desire to further her relationship with the Applicant in the hope that the parties would have a mutually beneficial personal long-term relationship.

152The Respondent has said that when the Applicant moved into her home she was employed full time earning about $50,000 per annum. That is, she was receiving a net fortnightly salary of some $1,480.

153The Respondent purchased Property A some nine years or so prior to the commencement of the cohabitation. One way or another, the Respondent was able to manage her mortgage commitments for a very long time before she met the Applicant.

154In summary, the evidence satisfies the Court that the parties both enjoyed a good standard of living whilst they were sharing the occupation of Property A. As noted above, there is a financial advantage to two people sharing the one set of premises.

155From the Applicant’s perspective, had he not had the benefit of occupying the Respondent’s property, he would have had to pay rental elsewhere. Acknowledging that the Applicant asserts that his contributions by way of board would have been greater than the rent he would have paid, still, this was a matter of choice on the part of the Applicant.

156Similarly, had the Applicant not been living with the Respondent, he still would have needed to have fed himself, meet the cost of entertainment, go on holidays and so on.

157Furthermore, the parties appear to have made a joint decision to live life at a very comfortable standard, and the Court makes no criticism of either party for making such choice. No doubt, neither party anticipated that the relationship would break down after just 18 months or so of living together.

158The Applicant says that he made his financial choices at the time based on the expectation that the relationship would be permanent and that he would have taken a more conservative approach to his finances had he known what would happen in November of 2010.

159The evidence presented by the Applicant, weighed in the context that he too enjoyed a good standard of living whilst the parties were living together, does not satisfy the Court that the Applicant has made substantial contributions, either direct or indirect, under s 205ZG(4)(a) of the Act, except in one respect, namely, in respect of the acquisition of the Subaru motor vehicle.

160Next, there are the Applicant’s s 205ZG(4)(b) contributions to assess.

161This subject is covered by the Applicant at paragraphs 13, 14 and 15 of the Applicant’s trial affidavit.

162The Respondent did not dispute that the Applicant carried out certain handyman tasks during the relatively brief time that the parties lived together. However, the Respondent argued, and the Court is inclined to the same view, that perhaps the Applicant has somewhat exaggerated the extent and value of the work he performed.

163The other difficulty for the Court is that there was no evidence to suggest that any of the handyman tasks performed by the Applicant during this short relationship actually lifted the value of Property A.

164On balance, and taking into account that the Court is satisfied that the Respondent made the greater s 205ZG(4)(c) contributions, the Court is unpersuaded that the Applicant has made substantial s 205ZG(4)(b) contributions.

165The question of whether particular contributions would amount to “substantial” contributions, in the context of s 205Z(1)(c) of the Act, was considered by the former Chief Judge of the Family Court of Western Australian in Varga & Kelty [2005] FCWA 80.

166At paragraph 21 of this judgment, the Court said that “substantial” means something more than “usual” or “ordinary”.

167It is undeniable that, putting the Applicant’s contributions towards the acquisition of the Subaru motor vehicle to one side for the moment, the Applicant made other s 205ZG(4)(a) and (b) contributions. However, in the Court’s view, those contributions should not be considered to constitute something more than usual or ordinary.

168There is also authority, namely, Tristan & Olifient [2007] FCWA 43 (at paragraph 54 thereof) for the proposition that the term “substantial” has to be considered in the context of the financial positions of the parties. What might appear to be a “substantial contribution” for people of limited financial resources might not be substantial in a case involving very wealthy parties. That is to say, when the Court is considering the economic value of s 205ZG(4)(a) and (b) contributions, the Court needs to be mindful of the financial circumstances generally of each of the parties.

169These two parties certainly could not be considered to be very wealthy, or indeed wealthy.

170The Applicant contributed some $31,350 towards the total cost of $39,100 to acquire the Subaru motor vehicle. That is to say, the Applicant made a direct financial contribution of some 80% or so towards the cost of purchasing the vehicle.

171Given the Applicant’s financial circumstances generally at around the time of the acquisition of the vehicle, and presently, the Court is satisfied that his contribution in this particular respect should be considered to be “substantial”.

172But for the Applicant’s investment in the acquisition of the Subaru motor vehicle, the Court would have been unpersuaded that the Applicant had made substantial contributions of the type caught by s 205Z(1)(c) of the Act.

173However, that is not the end of the exercise.

Would there be a serious injustice if the Court was not to make an order?

174It is not sufficient for the Applicant to establish that he made substantial contributions of the type caught by s 205Z(1)(c) of the Act. The Applicant must also establish that there would be a serious injustice to him if the Court was to fail to make the order he seeks. At this point, it needs to be remembered that the Applicant has actually sought an order that the Respondent pay to him the sum of $60,000.

175The expression “serious injustice” was considered by the Supreme Court of the Northern Territory in Van Jole v Cole (2000) 26 Fam LR 228.

176The expression was considered in the disposition of proceedings brought by a party under the Northern Territory legislation governing financial relations between former de facto partners.

177At paragraph 16 of the judgment, the Court said:

16It is necessary for a court to look at the whole of the surrounding circumstances of such an agreement in order to determine whether, in accordance with the ordinary English usage of the words, a serious injustice arises. An injustice is the opposite of justice and includes the concepts of a wrong or unfairness. The word serious in this context suggests weighty, grave or considerable. I agree with the submission made by Mr Young, who appeared on behalf of the respondent, that in the circumstances of this matter the expression “serious injustice” should be given its ordinary meaning of a considerable wrong or unfairness.

178It seems to the Court that the meaning to be given to the expression “serious injustice” needs to be considered in the context of the whole of the structure of s 205Z of the Act.

179That is to say, Parliament has decided that, as a general proposition, a Court may only make an order under Division 2 of Part 5A of the Act if a de facto relationship has been on foot for at least two years.

180Acknowledging that there are circumstances under which it would be appropriate to make Division 2 orders in respect of people who have been in de facto relationships for periods shorter than two years, Parliament has provided that, in limited sets of circumstances, the powers of the Court should be extended.

181The general two year limit was included in the legislation for a reason and it seems clear enough to the Court that it should be the exception rather than the rule that cases involving de facto relationships of less than two years should attract the jurisdiction of the Court.

182The other obvious observation to make is that Parliament has seen fit to apply the adjective “serious” to the noun “injustice” in s 205Z(1)(c). Thus, Parliament has acknowledged that there would be cases which might result in an injustice which would not attract the jurisdiction of the Court under s 205Z(1)(c).

183It seems to the Court that this is the type of case where it has been established that substantial contributions have been made by a de facto partner in a short relationship, but whilst there might be an injustice if an order is not made under Division 2, such injustice could not be considered to be “serious”.

184The Court comes to that view for the following reasons.

185The first point to make is that, in the Court’s view, the question of any injustice to the Applicant on the one hand needs to be weighed by reference to any potential injustice to the Respondent.

186That is to say, not only are the Applicant’s present financial circumstances to be taken into account, so too are those of the Respondent.

187Whilst the parties may have spent some $39,100 to acquire the Subaru motor vehicle, the item in question has now depreciated in value to a figure of only about $19,620.

188The Applicant contributed about 80% of the purchase cost and arguably he might expect to receive from the Respondent a payment the equivalent of about 80% of the current value of the vehicle, which would be a figure in the order of $15,700.

189The Court acknowledges that $15,700 is a not insignificant amount, particularly when regard is had to the present financial circumstances of the Applicant. That is to say, it seems to the Court that had this relationship lasted for the usual minimum period of two years, then, at its highest, the Applicant’s case would have seen him receiving a payment from the Respondent in the order of about $15,700.

190The Court accepts that the Applicant’s present financial circumstances are difficult. However, the evidence presented to the Court did not leave it satisfied that the Applicant is currently exercising his earning capacity to its fullest extent.

191There was no expert evidence led by the Applicant to establish that there is any medical reason why he could not work on a full-time basis, as it appears he has done in the past. The Applicant was in a reasonably strong financial position when he first met the Respondent and presumably this was a reflection of his earning capacity exercised over a number of years.

192To the extent that the Applicant’s presently low level of earnings is a function of his recent conviction, certainly, the Respondent cannot be held to account.

193That is to say, to the extent that the Applicant’s presently low level of earnings is partly, or wholly, due to his recent conviction, the Respondent is not to blame and ought not be penalised financially.

194Further, it does need to be said that the Applicant’s present financial circumstances would have been much better if he had not had to spend his $50,000 inheritance in paying legal fees associated with his unsuccessful defence of the criminal proceedings. Again, the Respondent ought not be held to account for that particular circumstance.

195At the time when the parties began to live together, the Applicant was a self employed road pilot and he had obviously done well enough in life to be able to save a considerable amount of cash. The fact that the Applicant had a significant quantity of cash at his disposal during the course of the relationship may have influenced many of his spending decisions during the relationship, including contributing to the cost of the Subaru motor vehicle.

196The Court accepts the Respondent’s evidence that the decision to acquire the Subaru motor vehicle was largely driven by the Applicant. The Court is in no way expressing any criticism of the Applicant in that respect. The evidence satisfies the Court that he wished to assist the Respondent in her working life by helping her acquire a motor vehicle of appropriate standard. It was a generous decision on his part.

197Having said that the Applicant’s financial circumstances are somewhat difficult at the present time, it does need to be said that the Respondent is not in a particularly strong financial position. She works full-time generating an annual salary of about $67,700 per year, which by contemporary standards is not a particularly high salary.

198The present value of the Respondent’s equity in Property A is only slightly more than $80,000.

199As for superannuation entitlements, the Applicant is in the far stronger position of the two parties. Whilst the Applicant may still be some years from retirement, his superannuation entitlements are substantial indeed.

200The Respondent’s financial position is presently also a function of her having to meet her legal costs in defending these proceedings since they commenced in January of last year.

201The question then becomes: would it constitute a “serious injustice” to the Applicant if he was not able to pursue a claim against the Respondent which would most likely be capped at something under $16,000? The Court is inclined to answer that question in the negative.

Conclusion

202It follows for all of the above reasons that the proceedings before the Court should be dismissed and an order to that effect will be made.

I certify that the preceding [202] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Secretary