BEAUMONT & SCHULTES
[2019] FCCA 1831
•17 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BEAUMONT & SCHULTES | [2019] FCCA 1831 |
| Catchwords: FAMILY LAW – Property – de facto relationship of less than two years – where applicant has made substantial contributions in renovations of properties acquired solely by respondent – where applicant maintain serious injustice if alteration of property interests does not take place – Held no serious injustice – application dismissed. |
| Legislation: Family Law Act 1975 (Cth), ss.4AA, 90SB, 90SM, Pt VIIIAB |
| Cases cited: Delamarre & Asprey [2014] FamCAFC 218 G & G (1984) FLC 9-582 |
| Applicant: | MS BEAUMONT |
| Respondent: | MR SCHULTES |
| File Number: | BRC 5230 of 2018 |
| Judgment of: | Judge L. Turner |
| Hearing dates: | 18, 19, 20 and 21 March 2019 |
| Date of Last Submission: | 29 March 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 17 July 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Ms Gaffney |
| Solicitors for the Respondent: | Fallu McMillan Lawyers |
FINAL ORDERS
A declaration is made that a de facto relationship existed between the applicant and the respondent from 1 November 2016 to 6 April 2018.
A declaration is made that the applicant made substantial contributions of a kind mentioned in section 90SM(4)(b) Family Law Act 1975.
A finding has been made pursuant to section 90SB(c)(ii) Family Law Act 1975 that failure to make an order under section 90SM would not result in a serious injustice to the applicant.
Forthwith the applicant at the applicant’s expense take all steps necessary and sign all such documents as required to remove any caveats held by the applicant over the respondent’s properties.
That within 28 days from the date hereof the respondent file and serve submissions as to any costs order being sought by the respondent including orders sought and details as to any offers of settlement.
That within 28 from the receipt of the respondent’s submissions, the applicant file and serve her response submissions as to costs including orders sought and details as to any offers of settlement.
Otherwise all other outstanding applications are hereby dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Beaumont & Schultes is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 5230 of 2018
| MS BEAUMONT |
Applicant
And
| MR SCHULTES |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties agree that for a short time they lived in a de facto relationship.
There are no children of the relationship.
Proposals
The applicant seeks a declaration that the de facto relationship existed between 21 May 2016 and 12 April 2018.
The respondent seeks a declaration that the de facto relationship existed between 29 November 2016 and 6 April 2018.
As the de facto relationship is less than two years, then once a declaration is made as to the length of the de facto relationship then a determination is required as to whether the court has the jurisdiction to order an alteration of the interests of the parties in the de facto property.
The applicant maintains the court does have such jurisdiction, as failure to make an order for a de facto property division would result in a serious injustice to the applicant as the applicant made substantial contributions to the de facto relationship.
The respondent disputes that the applicant has suffered a serious injustice and therefore the court does not have jurisdiction to make an order altering the property interests between the parties.
Issues
The issues then for determination are the:-
a)Length of the de facto relationship.
b)Whether the court has jurisdiction to order for the division of the property pool.
c)If the court has jurisdiction then how the property pool is to be divided.
Evidence
In considering the issues regard has been had to the:
a)The material as marked on the court file.
b)The oral and written evidence of the parties and witnesses.
c)The exhibits.
d)The written submissions of the parties.
e)Part VIIIAB Family Law Act 1975.
f)Relevant authorities.
The applicant is a self-represented litigant.
In accordance with Johnson & Johnson (2000) 201 CLR 488 and Re F Litigants In Person Guidelines [2001] FamCA 348, the court process was thoroughly explained to the applicant and every attempt was made to ensure that there was fair process was afforded to the applicant during the course of the final hearing.
The respondent is legally represented.
For the applicant the following witnesses were called and cross-examined:-
a)The applicant.
b)Ms B (the applicant’s sister).
c)Mr C (the applicant’s brother).
d)Mr D (the applicant’s brother).
I find the applicant and the witnesses to be credible witnesses.
Ms E and Ms F (the applicant’s friends) and Ms G (the applicant’s sister) were not required for cross-examination.
For the respondent the following witness was called and cross-examined:-
a)The respondent.
Mr H (the respondent’s friend and work colleague) and Mr J (the respondent’s brother) were not required for cross-examination.
Findings of fact are made on the balance of probabilities having regard to the evidence and in what follows statements of fact constitute findings of fact.
Relevant background
The relevant background is as follows:
a)The applicant is aged 36 and has two children from a previous relationship, [X] (16) and [Y] (15).
b)The applicant is studying and works full time as a professional.
c)The respondent is aged 36 and is a registered tradesman and professional.
d)The respondent has no dependents.
e)In August 2012 the respondent commenced a de facto relationship with Ms K (Ms K).
f)In February 2015 the respondent and Ms K moved into rented premises at Suburb L (the Suburb L property).
g)In November 2015 the applicant commenced work where the respondent worked.
h)At the time the applicant was living in rented accommodation at Suburb M.
i)In May 2016 the parties commenced a sexual relationship.
j)Between May 2016 and August 2016 the respondent spent nights at the applicant’s residence.
k)In late August 2016 the respondent’s de facto relationship with Ms K ended with Ms K moving out of the Suburb L property.
l)In August 2016 the respondent put down a deposit on an off the plan unit at Suburb L.
m)In September 2016 the applicant commenced spending overnights at the Suburb L property.
n)In November 2016 the applicant left the employer of the respondent and commenced employment at P.
o)In November 2016 the parties started to look for a property to purchase.
p)At the time the applicant owned property at Town Q subject to a mortgage.
q)In December 2016 the parties moved into a house property at R Street Suburb M (the R Street property) funded and purchased by the respondent in his name.
r)Between December 2016 and January 2017 the R Street property was renovated with the respondent paying for the costs of the renovation.
s)Between December 2016 and July 2016, the applicant’s sister Ms B lived with the parties at the R Street property, paying some rent and assisting with the care of the children.
t)In January 2017 after the renovations were completed on the R Street property and the respondent spent time between the R Street property and the Suburb L property.
u)In January 2017 the respondent funded and purchased in his name a property at O Road Suburb M (the S Road property).
v)After the purchase of the S Road property the respondent spent time at both the R Street property and the S Road property.
w)Between March 2017 and April 2017 the respondent worked in New Zealand during which time the respondents brother stayed at the S Road property.
x)Between April 2017 and May 2017 the S Road property was renovated with the respondent paying for the costs of the renovation.
y)In June 2017 the S Road property was tenanted.
z)From June 2017 the respondent lived full time with the applicant at the R Street property.
aa)In December 2017 the applicant left her employment at P and did some contract work during which time the respondent financially assisted the applicant.
bb)In February 2018 the parties moved out of the R Street property into a rental property at N Road Suburb M (O Road property).
cc)In February 2018 the parties opened up a joint bank account.
dd)In February 2018 the applicant commenced employment with T.
ee)In April 2018 the parties separated when the respondent left the applicant who remained at the O Road property.
ff)In April 2018 the joint bank account was closed.
gg)In May 2018 the applicant commenced property proceedings.
hh)In March 2019 the matter proceeded to a final hearing.
I will now consider the issues and the relevant law.
What was the length of the de facto relationship?
To determine the length of the de facto relationship it is necessary to understand what constitutes a de facto relationship.
Section 4AA(1)(c) Family Law Act 1975 states that “ a person is in a de facto relationship with another person if, having regard to all of the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis”.
It is now accepted by authorities that parties are not required to live together on a fulltime basis in order for there to be a de facto relationship.
In Jonah & White (2012) 48 FamLR 562 the Full Court at [32] said “it is immediately apparent that the touchstone for the determination of whether a de facto relationship exists is the finding that the parties to it are a ‘couple living together on a genuine domestic basis’”
There is no set formula as to what constitutes a “genuine domestic basis” and the danger in trying to have a set of rules to follow is addressed by Powell J in Roy & Sturgeon (1986) 11 FLR at page 274 and 275:
“With respect, it seems to me to attempt to dissect the phrase ‘living together as a husband and wife on a bona fide basis domestic basis’ into discrete elements, and then to test the facts of a particular case by reference to a test of priori rules in order to establish whether a particular element is or is not present, is to ignore the fact that just as human personalities and needs vary remarkably, so too were the various aspects of their relationship, which leads one to hold that a man and a woman living together as husband and wife on a bona fide domestic, which will vary from case to case
The application of the basis definition to the myriad facets of private personal relationships between men and women will inevitably be a matter of degree and proportion. The attributes and circumstances of such relationships differ greatly, ranging from what is little more than a casual liaison to a continuing affectionate companionship to a long merging of lives and resources. Moreover, the nature and quality of a particular relationship may change and develop over time, making it sometimes very difficult to pinpoint a time when the relationship should assume a legal significance”
The circumstances that may be taken into account in determining if parties are in a de facto relationship are contained in section 4AA(2) and include any or all of the following:-
a)The duration of the relationship.
b)The nature and extent of their common residence.
c)Whether a sexual relationship exists.
d)The degree of financial dependence or interdependence and any arrangements, financial support between them.
e)The ownership, use and acquisition of their property.
f)The degree of mutual commitment to a shared life.
g)Whether the relationship is or was registered under a prescribed law of a state or territory as a prescribed kind of relationship.
h)The care and support of children.
i)The reputation and public aspect of the relationship.
This is by no means an exhaustive list, nor is any particular finding in relation to any circumstance necessary in determining whether persons have been in a de facto relationship. (Section 4AA(3)).
In Jonah at [33] the Full Court in reference to section 4AA(2) noted “none of the matters referred to… has precedence over any other, nor must all necessarily be found before a finding of a de facto relationship is made”.
As stated in S & B (No.2) (2004) 32 Fam LR 429 at [49] and [50] “in a de facto situation, it is the party asserting the relationship that must prove cohabitation of the required quality…. The party asserting a de facto relationship must prove the ‘positive aspects’ of the relationship rather than the party denying it being required to prove the negative”.
As it is the applicant that is in dispute as to the length of the de facto relationship (the applicant says just short of 24 months where the respondent says 17 months) the it is up to the applicant to prove when the relationship began and ended.
When did the de facto relationship begin?
The applicant maintains that the de facto relationship commenced on 21 May 2016 because:
a)This was when the parties had their first sexual encounter.
b)The parties agreed to be in an exclusive relationship from that date.
c)The respondent started spending time at the applicant’s house.
The evidence supports the following:
a)The applicant described their first sexual encounter in May 2016 as “drunk work sex”.
b)Unbeknown to the applicant the respondent was in a de facto relationship with Ms K at the time with the respondent acknowledging he had “cheated” on Ms K by having sex with the applicant.
c)The applicant’s friend Ms E referred to the respondent as the applicants “boyfriend” in May 2016 ([5] her July affidavit).
d)From May 2016 the respondent started spending nights with the applicant at her residence but was still involved in an active sexual relationship with Ms K.
e)The respondent believed that the applicant was also involved sexually with other men.
f)The applicant deposes that during at this time the parties were “dating” and the respondent was becoming “part of the children’s lifes” and they “discussed… future needs… getting married and building a financial future together” ([22] applicant’s trial affidavit).
g)In August 2016 the respondent broke up with Ms K and it was at this time the applicant found out about the respondent’s de facto relationship, which resulted in the parties breaking up for a short period of time.
h)In August 2016 the applicant’s brother Mr C became aware of the applicants relationship with the respondent ([3] his July 2018 affidavit)
i)In September 2016 the applicant started to spend nights at the respondents Suburb L property.
j)In September 2016 the applicant’s brother Mr D became aware of the applicants relationship with the respondent.
k)Up until 1 November 2016 when the applicant left her employment with the respondent, the respondent states that they “had kept” their “relationship secret from” the “work colleagues” ([23] respondent’s trial affidavit).
l)On 4 November 2016, the applicant Facebook messaged Ms F to tell her that the respondent had told the applicant he loved her ([10] her July 2018 affidavit).
m)On 8 November 2016 Ms F saw the parties at the applicant house commenting that the respondent “was very serious about his relationship” with the applicant and the parties were “talking about marriage” ([11] her July 2018 affidavit).
n)In mid November 2016 the parties started to look for a property to buy and move into.
o)In an email after the parties separated in April 2018 the applicant wrote to the respondent “you’ve used me and broken up a month before our two year anniversary”.
Conclusion
The Full Court in Sinclair & Whittaker (2013) FLC 93-550 (supported in Delamarre & Asprey [2014] FamCAFC 218 at [39]) at [65] said
“the ultimate decision as to whether there is a de facto relationship at any given time is a decision for the court and not for the parties, the perception of the parties as to the nature of the relationship, while a relevant matter, cannot be determinative”.
The Full Court in Delamarre at [40] warned:
“a finding of a commencement date for a de facto relationship which coincides with the first meeting of the parties would seem, at least without some further explanation, to fly in the face of human experience”
I find having considering the evidence that the de facto relationship commenced on 1 November 2016.
I make this finding based on the following:
a)The parties’ romantic relationship commenced from a sexual encounter in May 2016.
b)To nominate this date as the commencement date of the de facto relationship is farcical as the parties were not in a committed relationship on a genuine domestic basis.
c)Whilst spending time with the applicant, the respondent continued to be in a committed de facto relationship with Ms K and the applicant was free to continue her life as a single woman.
d)The applicant’s family did not appear to be aware of the existence of the respondent or his relationship at this time and the applicant’s friends knew of him only in the context as being a boyfriend.
e)The applicant admits that they were “dating” around this time.
f)It was only after the breakup of the respondent’s relationship with Ms K in August 2016 and the temporary hold on the parties’ relationship that the parties took steps to be more vocal about the existence of their relationship.
g)In August and September 2016 family members became aware of the parties relationship.
h)In September 2016 the applicant started to spend time with the respondent at his residence.
i)In November 2016 the applicant left her employment with the respondent and work colleagues became aware of the relationship.
j)In November 2016 the respondent declared his love for the applicant and the parties started to plan for the future, talking about marriage and setting up house together.
I therefore declare that the de facto relationship commenced on 1 November 2016.
When did the de facto relationship end?
The applicant maintains that separation occurred on 12 April 2018, although why that date is not clear.
The evidence supports the following:
a)On 6 April 2018 the parties attended joint counselling.
b)After the joint counselling:
i)The respondent moved out of the O Road property leaving behind his household effects.
ii)The respondent returned all keys to the applicant for the O Road property and transferred the bond and lease for the property into the name of the applicant.
iii)The respondent closed the joint bank account.
iv)Sent messages to the applicant that they were on a “break”.
c)The applicant called her sister Ms G on 6 April 2018 to say that the respondent “had sent her a text message asking for a break… he was ignoring her and he had signed the lease into her name and she was scared” the respondent “was leaving but telling her it was a break” ([25] her July 2018 affidavit).
d)The parties never resumed cohabitation after 6 April 2018.
Conclusion
I find that the evidence supports that the de facto relationship ended on 6 April 2018.
Declaration of the length of the de facto relationship
I find that the parties were in a de facto relationship from 1 November 2016 to 6 April 2018, a period of just over 18 months.
Does the court have jurisdiction to alter property interests?
The finding of the existence of a de facto relationship enlivens Part VIIIAB, Division 2 Family Law Act 1975 and enables the Court to alter property interests between the parties but only if pursuant to section 90SB the Court is satisfied that:-
a)The periods of the de facto relationship total at least two years.
b)There is a child of the de facto relationship.
c)A party has made substantial contributions and a failure to make an order or declaration would result in serious injustice to that party.
d)The relationship is or was registered under a prescribed law of a state or territory.
In this matter:
a)The relationship was for less than two years.
b)There are no children of the relationship.
c)The relationship was not registered.
Therefore the only gateway available to the court to make an order altering the property interests of the parties in this matter is offered by section 90SB(c) that reads:
“a court may make an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL, in relation to a de facto relationship only if the court is satisfied that :
(i) the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); and
(ii) failure to make the order or declaration would result in serious injustice to the applicant”
This section requires an establishment of substantial contributions of certain kinds before the court can consider the issue of serious injustice.
The question then is whether the applicant has made substantial contributions in accordance with section 90SB(3)(c)(i) .
Before answering this question consideration must be had to what is meant by the term “substantial contributions”.
What is the meaning of ‘substantial contributions’?
In Ollie & Norwood [2015] FCCA 71 at [12] to [16] Judge Whelan comprehensively explored the meaning of “ substantial contributions” stating:
“[12] In Miller & Trent (2011) 250 FLR 387 (‘Miller’), Coates FM (as he then was) considered the meaning of ‘substantial contributions’ and, in doing so, referred to the judgment of Holden CJ of the Family Court of Western Australia in V & K [2005] FCWA 80 (‘V & K’). In that case,
his Honour referred to the CCH commentary which observed that
‘it will be a matter of degree, in a relationship which lasts a short time when a ‘normal’ spousal contribution becomes ‘substantial’.
His Honour also referred to the decision of the High Court in Mallet & Mallet (1984) 156 CLR 605, which adopted the language of the Full Court of the Family Court in Rolfe & Rolfe (1979) FLC 90-269 that ‘contributions to home and family should be recognised not in a token, but in a substantial way’.
[13] His Honour went on to observe:
‘Notwithstanding I am of the view that a contribution to domestic duties in circumstances such as exist in this case where there were no dependent children and over a short period of time ought not be seen to be substantial. In my view, substantial means something more than usual or ordinary. In my view, s 205X(b)(ii) is aimed at more exceptional circumstances where serious injustice may be caused by the application of sub-section (i)’.
[14] Coates FM referred to the dictionary definition of ‘substantial’ as well as the decision of Wentworth v Wentworth (1995) 37 NSWLR 703 before concluding that the requirement was to be satisfied that the contributions were ‘more than usual or ordinary or were contributions having real worth, value or importance’.
[15] As Watts J noted in Lee & Hutton [2013] FamCA 745, the views of Holden CJ in V & K have been followed in a number of cases in this Court and the Family Court. His Honour also referred to other definitions of the word ‘substantial’ including ‘of ample or considerable amount, quality or dimensions’, ‘considerable or large’ or ‘not illusory’.
[16] In Wall & Mitchell [2012] FamCA 114, Johnston J, in expressing agreement with both Coates FM and Holden CJ, went on to say:
‘If usual or ordinary contributions were sufficient to amount to ‘substantial contributions, within the meaning of s 90SB(c) there would be little purpose in the two years requirement in s 90SB(a) of the Act’”
I now turn to the relevant contributions mentioned in section section 90SM(4)(a),(b) and (c).
Were there substantial financial contributions made by the applicant pursuant to section 90SM(4)(a)?
Section 90SM(4)(a) reads:
“In considering what order (if any) should be made under this section in property settlement proceedings, the court must take into account
(a) the financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i) to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
ii) 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 parties to the de facto relationship or either of them”
The evidence supports that during the de facto relationship:
a)The R Street property was acquired and funded solely by the respondent.
b)The renovations on the R Street property were wholly funded by the respondent, including the costs of the materials and third party contractors.
c)The mortgage repayments and all outgoings on the R Street property were and continue to be met solely by the respondent.
d)The S Road property was acquired and funded solely by the respondent.
e)The renovations on the S Road property were wholly funded by the respondent, including the costs of the materials and third party contractors.
f)The mortgage repayments and all outgoings on the S Road property were and continue to be met solely by the respondent.
g)The applicant did not pay rent to the respondent.
h)Apart from electricity, the respondent paid all other bills including assisting with educational costs for the children.
i)The applicant paid monies towards food, travel and entertainment.
j)The parties did not have a joint bank account until after they moved into rented premises at the O Road property.
The applicant in her written submissions maintains that:
a)There has been a direct financial contribution made by the applicant due to:
i)The equity in the R Street property (half of which belongs to the applicant amounting to $25,000) enabling the raising of the deposit and subsequent purchase of the S Road.
ii)The $30,000 worth of labour the applicant provided to the renovations of the R Street property.
iii)The $30,000 worth of labour the applicant provided to the renovations of the S Road property.
b)There has been an indirect financial contribution made by the applicant due to:
i)The tax benefits the respondent received from being the sole owner of two rental properties.
ii)The increase the respondent has made in his superannuation as the applicant emotionally and financially supported the respondent in his career progression.
Consideration will now be given to each of the issues raised by the applicant.
Equity in the R Street property
I find that despite contracts being signed in both names and the R Street property subsequently being purchased in the name of the respondent that as the respondent solely funded the purchase of the R Street property then the only party who has made a direct financial contribution to the equity in the R Street property is the respondent.
I therefore find that the applicant fails in her argument as to making a direct financial contribution due to the equity in the R Street property being utilised in acquiring the S Road property.
$30,000 of labour provided by the applicant to the R Street and S Road property renovations
The applicant is not a qualified labourer.
The applicant was not contracted to provide labour to the respondent.
The estimate of the value of the applicant’s time in being involved in the renovations is a guesstimate only, not based on fact.
Therefore, the dollar values imposed by the applicant I find cannot be a direct financial contributions by the applicant to the renovations of the respondent’s properties.
The issue of renovations however is an issue to consider in regard to the non-financial contributions, which will be dealt with later in the judgment.
Tax benefits
The applicant did not directly financially contribute to the acquisition of either property, with each property being acquired by the respondent in his name only.
As such, the respondent is exclusively entitled to any tax benefits associated with the properties.
Therefore, the argument posed by the applicant that she is responsible for the respondent receiving these tax benefits is flawed and cannot be taken into account in determining whether the applicant has made a financial contribution to the de facto relationship.
Increase in respondent’s superannuation
In the absence of any evidence before the court that the applicant has made direct financial contributions to the respondent’s superannuation, then this argument is baseless and does not support a finding that a financial contribution has been made by the applicant.
The contributions the applicant has made to the welfare of the family however will be taken into account later in the judgment.
Overall conclusion
I find that the applicant did make financial contributions towards food and electricity as well as entertainment.
Nevertheless, there is insufficient evidence to support that these contributions were substantial.
As a finding has been made that no other financial contributions have been made by the applicant, then this part of section 90SM(4) is not applicable in considering whether there would be a serious injustice to the applicant should an alteration of property interests not take place.
Were there substantial non-financial contributions made by the applicant pursuant to section 90SM(4)(a)?
Section 90SM(4)(b) reads:
“In considering what order (if any) should be made under this section in property settlement proceedings, the court must take into account:
(a) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i) to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii) 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 parties to the de facto relationship or either of them"
The applicant maintains that substantial indirect financial contributions were made due to:
a)Domestic services.
b)The delayed progression in her university and career progression.
I will now address these issues as well as the issue of renovations.
Domestic services
I find that the issue of domestic services is better addressed when considering the applicant’s contribution made to the welfare of the family, which will be dealt with later in the judgment.
Delayed progression in the applicant’s university and career progression
I find that this is not a relevant issue under section 90SM as it is does not fall into the category of a non-financial contribution.
This issue however is relevant in the alteration of property interests, should that be considered by the court.
Renovations
The applicant argues that substantial non-financial contributions were made by the applicant in regard to the renovations performed on the two real properties owned by the respondent:
a)The R Street property during December 2016 and January 2017.
b)The S Road property during April and May 2017.
Whilst the evidence support that the applicant obtained some quotes for the renovations, the quotes were ultimately not used by the respondent, who proceeded to pay for and organize the renovations using the respondents expertise, skilled labour and family and friends to complete the work.
The respondent acknowledges that the applicant “organized…was unskilled labour and unlicensed and unqualified plumbing from her friends and family” ([136] respondents trial affidavit).
The affidavits are littered with who did what, but the question that needs to be addressed is whether this level of detail is relevant in determining whether the applicant made substantial non-financial contributions to the de facto relationship.
Having read the extensive material I find that the applicants’ alleged non-financial contributions to the renovations on the respondent’s two properties emanated from three separate sources apart from the applicant, namely:
a)The applicant’s children.
b)The applicants mother, sister and friends.
c)The applicant’s brothers.
However, should these sources be taken into account in determining whether the applicant’s non-financial contributions are substantial?
In order to make that determination it is necessary to consider each source.
Applicant’s children
At the time of the renovations [X] and [Y] were approaching their teenage years.
The respondent acknowledges that the children assisted in the S Road renovations with the installation of fence palings and some painting.
In acknowledgment of their work the children were paid monies of around $400 each.
I find given their ages that any contributions would have been small and that the children were financially compensated for their work.
I therefore find that the work performed by the children should not be included in the non-financial contributions made by the applicant.
Applicant’s mother, sister, brother in law and friends
The applicant’s mother, Ms U stayed with the parties from time to time with the brother in law, Mr V and his wife and children as the children required medical treatment in the Brisbane area.
The assistance to the renovations provided by these family members were small consisting of:
a)Ms U cleaning some windows and the internal of the R Street property post renovations ([69] respondents trial affidavit).
b)Mr V shoveling topsoil and assisting with installing the fence palings ([70] respondent’s trial affidavit).
In addition to providing the family members with free accommodation and meals at the R Street property Mr V was given a large tobacco pouch and paper to thank him for his assistance ([70] respondent’s trial affidavit).
As to Ms B, Ms B lived with the parties for some 7 months.
Whilst assisting with the house and the children, Ms B was required to pay rent to the respondent but only did so on a handful of occasions.
Ms B assisted in the renovations of the S Road property by spray painting the fence palings and painting the front of the house ([64] respondent’s trial affidavit).
As to the applicant’s friend Ms F, who provided a trailer for one day and assisted in installing flooring, the respondent paid Ms F $150 or her services ([68] respondents trial affidavit).
I find that given the contributions made by the respondent in providing accommodation and food for the family members that this compensated the family members for their small contributions to the renovations.
I find that by paying Ms F, this compensated her for her contribution.
I find that these contributions therefore cannot be part of the indirect non-financial contributions made by the applicant.
Applicant’s brothers
Mr C is a tradesman.
Mr D is a tradesman.
Compared to the applicant’s other family members and friends the evidence supports that the contributions provided by the two brothers towards the renovations of the two properties was extensive.
As to Mr C the work included:
a)Installing of fence palings ([17] Mr J July 2018 affidavit).
b)Carrying the timber for the construction of the carport ([20] Mr J July 2018 affidavit).
c)Assisting with the placing and tacking of roof sheets ([21] Mr J July 2018 affidavit).
d)Moving soil and bark that was delivered ([23(f) Mr J July 2018 affidavit).
e)Assisting moving kitchen cupboards delivered ([23(f) Mr J July 2018 affidavit).
f)Assisting in the concrete pour by laying the mesh and shovel concrete ([23(f) Mr J July 2018 affidavit).
g)Assisting building the handrail for the front steps ([78] respondent’s trial affidavit).
h)Assisting with the fixing of Villa board ([79] respondents trial affidavit).
i)Assisting with pulling out the old kitchen and holding kitchen cupboards as they were being installed ([79] respondents trial affidavit).
j)Using his Ute to collect plumbing supplies ([80] respondents trial affidavit).
k)Chopping down and removed some small trees ([89] respondents trial affidavit).
As to Mr D the work included:
a)Pulling out the old kitchen ([79] respondents trial affidavit).
b)Using his Ute to collect plumbing supplies ([80] respondents trial affidavit).
c)Assisting with the Villa board ([90] respondents trial affidavit).
d)Assisting with the plumbing fixtures ([90] respondents trial affidavit) and doing plumbing work.
Prior to undertaking the renovation work for the two properties, the brothers discussed receiving payment from the respondent for work performed.
The respondent paid Mr C $350 together with car parts ([77] respondents trial affidavit).
The respondent paid Mr D $1,150 and gave Mr D the benefit of sale proceeds of “copper, scrap metal and goods” taken from the properties ([75] respondents trial affidavit)
Dissatisfied with the monies received the two brothers in 2019 lodged a joint application with the Queensland Civil and Administrative tribunal (QCAT) against the respondent for a minor civil dispute claiming $10,000” ([167] respondents trial affidavit).
In the supporting affidavit the brother Mr C deposed:-
a)That the respondent would give him “a few thousand dollars” for the work performed ([8]).
b)That if Mr C knew the respondent “was using me and never intended to pay me, I would not have helped” the respondent “for nothing and would have charged by the hour and the works would have taken longer as I would of come only on Sundays” ([51] Mr Cs’ January 2019 affidavit).
c)The respondent “has avoided all contact and refused to offer any payment for the works” ([56] Mr Cs’ January 2019 affidavit).
I find that the contribution made by the brothers Mr C and Mr D to the renovations of the respondent’s properties was independent to the non-financial contribution made by the applicant because:
a)The brothers would never have provided their assistance if they thought that they would not be paid for it.
b)The brother negotiated with the respondent to receive monetary gain in exchange for their assistance with the renovations.
c)The brothers upon receiving insufficient monies exercised their legal right to recover the monies from the respondent.
d)The brother’s chose not to pursue their legal rights against the respondent.
e)The brother’s may still have legal rights available to pursue the monies.
I therefore find that the contributions made by the brothers to the renovations of the respondent’s two properties cannot be taken into account in determining what non-financial contributions the applicant made.
Consideration must now be had to the non-financial contributions made by the applicant to the renovations the applicant and whether such contributions are substantial.
Applicant
The respondent acknowledges the non-financial contributions made by the applicant to the renovations of the two properties and accepts that the applicant spent over 220 hours assisting in the renovations.
As to the R Street property, the applicant;
a)Moved branches and logs to pile them up to be burnt ([89] respondents trial affidavit).
b)Installed some skirting tiles to the ensuite ([90] respondents trial affidavit).
c)Assisted in finishing the splash back tiling ([90] respondents trial affidavit).
d)Assisted with the painting of the interior of the house ([90] respondents trial affidavit).
e)Packing tools everyday ([90] respondents trial affidavit).
f)Prepared food and drinks.
The independent evidence supports that during the R Street property renovations in December 2106/January 2017 the applicant:
a)Worked up until Christmas Eve.
b)Was on leave between 24 December 2016 and 8 January 2017 with the parties not conducting renovations on Christmas Day, New Year’s Eve or New Year’s Day.
c)Upon returning to work on 9 January 2017 worked over 38 hours per week for the remainder of January.
d)Was caring for the children.
As to the S Road property, the applicant;
a)Cleaned some of the house (the respondent paid for professional cleaners to do the cleaning) ([52] respondent’s trial affidavit).
b)Assisted with the installation of fence palings ([17] Mr J July 2018 affidavit).
c)Assisted in the spray painting of the fence palings ([18] Mr J his July 2018 affidavit).
d)Sanded the front deck verandah ([23(d)] Mr J July 2018 affidavit).
e)Assisted in the preparation of and painting of the front side of the house ([23(d) Mr J July 2018 affidavit).
f)Painted the kitchen cupboards ([23(d) Mr J July 2018 affidavit).
g)Did some “dump runs” ([23(d) Mr J July 2018 affidavit).
h)Collected items from Bunnings ([127] respondents trial affidavit).
i)Prepared food and drinks
The independent evidence supports that during the S Road property renovations in April/May 2017 the applicant:
a)Worked in excess of 40 hours per week and in some weeks worked over 50 hours.
b)Was caring for the children.
c)Was studying for her degree.
The respondent also accepts that these non-financial contributions made by the applicant were substantial.
Overall conclusion
I find that the non-financial contributions made by the applicant were substantial contributions in accordance with section 90SM(4)(b).
The applicant is seeking that this contribution is given a dollar value of $90,000.
I find that this mathematical exercise is inappropriate and unfounded and refer to G & G (1984) FLC ¶91-582 where are at p 79,697 Nygh J stated “it cannot be required of the Family Court that it assess contributions with mathematical precision, with respect to each item”.
As such the extent of the ruling is that the contribution by the applicant alone was substantial.
This part of section 90SM(4) is therefore applicable in considering whether there would be a serious injustice to the applicant should an alteration of property interests not take place.
Were there substantial contributions made by the applicant to the welfare of the family?
Section 90SM(4)(c) reads:
“In considering what order (if any) should be made under this section in property settlement proceedings, the court must take into account the contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship and any children of the de facto relationship, including any contribution made in the capacity of homemaker or parent”
As to what is meant by “welfare of the family” was thoroughly explored by Watts J in Lee & Hutton [2013] FamCA 745 at [191] to [196]:
“[191] Cases such as In the marriage of G and G (1984) FLC 91-582 and In the marriage of Shaw and Shaw (1989) FLC 92-010 emphasised that an adjustment order, in relation to an asset, may be made on the basis of a party’s contribution to the welfare of the family even though those contributions had no connection with that asset.
[192] Importantly in this case, the word ‘any’ in s 90SM(4)(c) of the Act excludes any argument that Parliament intended the court to only take into account contributions by a partner in a de facto relationship to the welfare of the family if there were children. The word ‘family’ in s 90SM(4)(c) clearly includes a family constituted by an childless couple.
[193] As Nygh J said in In the marriage of G and G at page 79,694:
‘The reference to a ‘family’ in para.(c) is not a term of art referring only to a marital cohabitation, but can include any unit of persons who are cohabiting whether in or out of marriage’
[194]In In the marriage of Mehmet and Mehmet (No. 2) (1987) FLC 91-801, the Full Court considered the phrase in s 79(4)(c) of the Act; ‘welfare of the family constituted by the parties to the marriage and any children of the marriage’. Justice Nygh considered the phrase must be seen within the context of the following words in that subsection (‘including any contribution in the capacity of homemaker or parent’) and that those words indicated that a contribution on behalf of ‘the welfare of the family’ would be ‘the contribution made by a spouse to another spouse or the contribution made by a mother or father towards his or her children’.
[195] A contribution made by one party in a childless de facto relationship for the welfare of both parties, is also a contribution to ‘the welfare of the family’.
[196] In the context of the ‘gateway’ argument, the word ‘substantial’ needs to be judged within the confines of a period of less than two years (otherwise there will be no controversy in relation to the gateway argument as a de facto relationship of at least two years satisfies s 90SB(a) of the Act)”.
The applicant deposes to:
a)Doing the majority of the housework including cooking and cleaning ([5] applicant’s trial affidavit).
b)Doing all the domestic services such as “cooking dinner, shopping, cleaning , washing, ironing, yard work and general transport for the kids and planning family activities” in order for the respondent to work longer hours ([42] applicant’s trial affidavit).
The respondent says:
a)That at the beginning of 2017 the respondent lived between the R Street property and the Suburb L property. The respondent did his laundry at the Suburb L property and purchased his lunches and dinners ([57] respondents trial affidavit).
b)That for over six weeks in March/April 2017 the respondent was living and working in New Zealand ([105] respondents trial affidavit).
c)From April to June 2017 the respondent lived primarily at the R Street property but that he kept most of his clothes at the S Road property and would wash and iron his clothes there ([32] respondent’s trial affidavit).
d)The respondent purchased most of his lunches ([162] respondent’s trial affidavit)
e)The parties shared making dinners and breakfast. The respondent did the majority of the outside work whilst the applicant looked after the inside work [(163] respondents trial affidavit).
f)The respondent was actively involved with the children:
i)Attending school interviews ([142] respondent’s trial affidavit).
ii)Taking calls about the children from school ([143] respondent’s trial affidavit).
iii)Taking the children to footy training and games ([144] respondent’s trial affidavit).
iv)Transporting the children to their grandparents in Town Q ([147] respondent’s trial affidavit).
v)Assisting the applicant with parenting issues ([164] respondent’s trial affidavit).
vi)Ensuring the children were awake on school mornings ([164] respondents trial affidavit)
The respondent acknowledges that the applicant made contributions to the welfare of the family but that such contributions were not substantial.
Conclusion
I find that whilst the applicant contributed to the welfare of the family, that such contributions were not substantial.
I make this finding based on the following:-
a)The de facto relationship lasted some 18 months from November 2016 to April 2018.
b)For the first month of November 2016 the parties were not living together.
c)In December 2016 and January 2017 the parties were actively involved in the renovation of R Street and therefore sharing the responsibilities for the day-to-day welfare of the family.
d)From January 2017 to March 2017 the respondent shared his time between the R Street property and the Suburb L property and consequently both parties attended to day-to-day chores to benefit the family.
e)The respondent was absent in March/April 2017.
f)In April/May 2017 the parties were actively involved in the renovation of the S Road property and therefore sharing the responsibilities for the day-to-day welfare of the family.
g)Until June 2017 the respondent shared his time between the R Street property and the S Road property and consequently both parties attended to day to day chores to benefit the family.
h)From December 2016 until June 2017 the applicant had the assistance of her sister Ms B in running the household and caring for the children, as Ms B was living, almost rent free in the R Street property.
i)From June 2017 until April 2018 the parties lived exclusively under the one roof where both parties worked fulltime and shared in running the household.
j)The parties shared responsibilities with the care of the applicant’s children and with day-to-day chores.
As a finding has been made that the contributions as to the welfare of the family by the applicant were not substantial then this part of section 90SM(4) is not applicable in considering whether there would be a serious injustice to the applicant should an alteration of property interests not take place.
Now that it has been established that the applicant has made substantial non-financial contributions to the de facto relationship the next question to address is whether failure to make an order for alteration of a property interest would result in a serious injustice to the applicant.
Would failure to make an order for alteration of property interests result in a serious injustice to applicant?
Before this question in answered it is necessary to consider what is meant by “serious injustice”?
What is the meaning of ‘serious injustice’?
The meaning of “serious injustice” was considered in Ollie where Judge Whelan at [19] to [29] said:
“[19] In Miller, Coates FM dealt with the issue of ‘serious injustice’ in the following passage:
‘The Act recognises that an injustice may occur and so sets a higher test being a serious injustice. The word serious in this context, taken from the Concise Oxford Dictionary, must mean not slight. The Macquarie Encyclopedic Dictionary uses the words weighty or important. These meanings show a difference by marked degree from a mere injustice’
[20] His Honour later referred to the difference between a ‘serious injustice’ and an order made on the basis of justice and equity:
‘While an assessment of the possible division of property without testing the evidence is to some extent a hypothetical exercise, any division of course must be made on a justice and equity basis. But because the order altering the property must be just and equitable, as well as the percentage division, it follows that this aspect of justice and equity is not the same as a person suffering a serious injustice, because a claim was not allowed to proceed’
[21]The Respondent referred the Court to two judgments concerning similar legislation to the Act provisions where the concept of ‘serious injustice’ was considered. The first of these is a judgment of Potter J of the New Zealand High Court in X and Y [2010] NZHC 287. The judgment was in an appeal against a decision of the Family Court concerning s.14A of the Property (Relationships) Act 1976 (NZ)
(the ‘PRA’). Section 14A of the PRA provides:
‘(1) This section applies if a de facto relationship is a relationship of short duration (as defined in section 2E).
(Section 2E defined a relation for a period of less than three years as a relationship of short duration).
(2) If this section applies, an order cannot be made under this Act for the division of relationship property unless –
(a) the Court is satisfied –
(i) that there is a child of the de facto relationship; or
(ii) that the applicant has made a substantial contribution to the de facto relationship; and
(b) the Court is satisfied that failure to make the order would result in serious injustice’
[22] The Judge at first instance had referred to the meaning of ‘serious injustice’ in various judgments where the term was considered. Heath J in Henry v Williams [2004] 2 NZLR 132, for example, said:
‘… the term ‘serious injustice’ suggests injustice of a type that the Court cannot tolerate. While not creating a standard as high as the “repugnant to the interests of justice” test used in s 13 of the 1976 Act … the term requires a degree of injustice sufficient to require the Court to intervene’
[23] Her Honour noted that both Judge Inglis QC in Gibbons v Vowles (2003) 22 FRNZ 946 (‘Gibbons’) and Judge Ullrich in LS v ZJ
[2005] NZFLR 932 had considered that:
‘… the injustice must be sufficiently serious to justify departure from the general rule that where the de facto relationship is of short duration no order can be made, the primary rule being that de facto relationships of short duration do not come under the PRA at all’
[24] Justice Potter, on the appeal, found that:
‘… there is an implicit requirement for the applicant who seeks orders from the Court under s 14A to place before the Court evidence which will both satisfy the Court that one or other of the threshold requirements has been met and that the situation is such that serious injustice would result from failure to make an order’
[25] His Honour quoted from the judgment of Judge Inglis QC in Gibbons where he said:
‘I consider that this door [to s.14A(3)] cannot be opened in the absence of detailed and specific evidence indicating in precisely what respects not opening the door could result in an injustice which is sufficiently serious to justify departure from the general rule that where the de facto relationship is of short duration no order … can be made’
[26] Justice Potter further quoted from Gibbons where his Honour said:
‘The exercise of determining whether ‘serious injustice’ does or does not arise necessarily involves comparison between the consequence for the parties as the result of the determination, though other factors which may assist in a finding whether or not there is ‘serious injustice’ are not excluded’
[27] The Respondent also referred to the decision of Besanko J in the Supreme Court of the ACT in McMaster & Wilkie-Snow [2011] ACTSC 183, a judgment concerning s.15(1) of the Domestic Relationships Act 1994 (ACT) (the ‘DRA’). That matter concerned an application to set aside a domestic relationship agreement on the grounds that, in the circumstances, the enforcement of the agreement would result in serious injustice. In that judgment, her Honour said the following about the term ‘serious injustice’:
‘The meaning of serious injustice was considered by Riley J in
Van Jole v Cole [2000] NTSC 18; 26 Fam LR 228. His Honour said that the words ‘serious injustice’ in s 46 of the De Facto Relationships Act 1991 (NT) were to be accorded their ordinary meaning which was a considerable wrong or unfairness. I accept those observations, although one could also describe the requirement in terms of significant or substantial unfairness ...’
[28] In Van Jole v Cole (2000) 26 Fam LR 228 (‘Van Jole’), Riley J of the Northern Territory Supreme Court was also dealing with the issue of whether a separation agreement made under the DRA should be set aside. His Honour stated:
‘It is clear that the Court will not interfere with a separation agreement simply because it believes a different form of agreement was more appropriate. Further it will not interfere where there is simple injustice. Rather, it must be satisfied that a failure to intervene would result in “serious injustice” between the parties...
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’
[29] In LF v RA (2005) 34 Fam LR 536, White J of the Queensland Supreme Court was dealing with an application for a property adjustment order pursuant to s.286 of the Property Law Act 1974 (Qld) (the ‘PLA’). The parties had entered into a cohabitation agreement. Section 276 of the PLA provided that, on application for a property adjustment order, the Court may vary the provisions of such an agreement if it was satisfied that enforcement would result in serious injustice for a party to the agreement. His Honour adopted the approach in Van Jole and commented:
It is not, of course, a serious imbalance of itself which will give rise to a conclusion of serious injustice. The detail of the relationship and the parties’ financial and other contributions to the acquisition of the assets in the course of the relationship will be determinative of that question’”
Upon reading the relevant authorities, the elements in order to establish serious injustice include:
a)There must be something more than just “mere injustice” or “simple injustice”.
b)The injustice must be “sufficiently serious” where there is “considerable wrong” or “unfairness”.
c)There is more to be taken into account than a “comparison of consequences”.
d)There must a “weighty, grave or considerable” serious “imbalance”.
Is there serious injustice to the applicant?
To support her argument as to a “serious injustice” the applicant submits:
a)“It would be unconscionable for the respondent to retain all the benefit from the substantial contributions, that he concedes were provided by the applicant”
b)“Equity should be enforced, as it would be unconscionable for the legal owner to rely on statute to determine no de facto relationship to defeat not only a beneficial interest but to deny the applicants significant contributions”
c)“The applicant, despite her significant contributions, left the relationship in a poorer position than when the relationship commenced”
The applicant then entered into a mathematical exercise to demonstrate her poorer position and spoke significantly about equitable interests, an issue which was not explored at the final hearing and as such has not been considered in determining the issues.
Conclusion
I find having considered all the evidence that the applicant would not suffer a serious injustice if an alteration of property interests did not occur.
I make this finding based on the following:
a)This is a very short relationship of some 18 months.
b)The applicant is leaving the relationship in a similar financial position as the applicant entered it with her retaining the Town Q property, having the benefit of an increased superannuation fund, being in full time employment and part way through her degree.
c)The applicant made no financial contributions to the acquisition, renovation, maintenance or preservation of the R Street and S Road properties.
d)Whilst the non-financial contributions by way of renovations to the R Street and S Road properties were accepted as substantial, in the scheme of the extent of the renovations undertaken, the added value to the properties by the nature of the applicant’s contributions is small.
e)In any event the evidence supports that the renovations as a whole added very little to the overall value of the properties with much of the renovation required to make the properties liveable and rentable.
f)The applicant had the benefit of rent free living for the 17 months that the parties cohabitated.
g)The applicant benefited from the financial support provided by the applicant on a day-to-day basis including his meeting the costs of outgoings, contributions towards food and entertainment and towards travel.
h)The applicant had choices as to how to expend her earnings given these benefits and to penalise the respondent in the choices he made to acquire, improve and retain real property during that time would be unjust to the respondent.
As the applicant has failed to establish a serious injustice then the gateway offered by section 90SB(3)(c) shuts resulting in the court not having the jurisdiction to alter property interests due to the breakdown of the de facto relationship.
The applicant is therefore unsuccessful in her application.
Caveats
It appears from the evidence that the applicant has placed caveats on the respondent’s properties to protect her potential interests.
An order has been made as to the immediate withdrawal of the caveats at the applicant’s expense.
Costs
The respondent indicated that he would be seeking costs in the event that he was successful.
Whilst some submissions were provided for costs, in fairness to the applicant the court requires comprehensive submissions to be filed and served in order for this issue to be thoroughly considered.
I certify that the preceding one hundred and forty two (142) paragraphs are a true copy of the reasons for judgment of Judge L. Turner
Date: 17 July 2019
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