BOLT & WALDO

[2017] FamCA 402

FAMILY COURT OF AUSTRALIA

BOLT & WALDO [2017] FamCA 402

FAMILY LAW – DE FACTO RELATIONSHIPS – Where the parties shared a common residence for a period of about 18 months – Where both parties invested in the building of a property – Where the parties maintained a sexual relationship and had a child together as a result – Where the de facto wife assisted the de facto husband during severe illness for about 12 months – Where the parties were known as a couple by family and friends – Declared a de facto relationship existed for a defined period of time.

FAMILY LAW – FINANCIAL – PROPERTY SETTLEMENT – Where the relationship was for approximately three and a half years – Where it was marked by the birth of a child, the joint investment in real estate and a period of severe ill health for one of the parties – Where the initial contributions substantially favour the de facto husband – Where both parties worked hard to establish a new business – Where the financial and welfare contributions by the de facto wife during the relationship are substantial and should be recognised – Where the de facto wife has majority care for the parties’ child – Ordered 65/35 per cent division of property in favour of the de facto husband.

Family Law Act 1975 (Cth), ss 75, 79

Bevan & Bevan [2013] FamCAFC 116
Jonah v White (2011) 45 FamLR46 at 60
Stanford v Stanford (2012) 247 CLR 108

APPLICANT: Ms Bolt

RESPONDENT: Mr Waldo

FILE NUMBER: MLC 558 of 2015

DATE DELIVERED: 9 June 2017

PLACE DELIVERED: Newcastle

PLACE HEARD: Melbourne

JUDGMENT OF: Cleary J

HEARING DATE: 3-6 April 2017 & 9 May 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Matta
SOLICITOR FOR THE APPLICANT:	Nevett Ford

COUNSEL FOR THE RESPONDENT: Ms Swart

SOLICITOR FOR THE RESPONDENT: Duane Portway Family Law

Orders

1. That pursuant to s 90RD of the Family Law Act 1975 it is declared that:

   (a)A de facto relationship existed between Ms Bolt (“the Applicant”) and Mr Waldo (“the Respondent”) for the period from February 2011 to 14 July 2014; and

   (b)There is a child of the de facto relationship B born … 2013.

2. On or before 9 September 2017 the Respondent must do all acts, call and attend all necessary company meetings and execute all documents submitted by the Applicant to the Respondent and to C Pty Ltd to transfer to the Applicant or her nominee all the interest of C Pty Ltd in the property known as D Street, E Town in the state of Victoria, described as Volume … Folios … and ...

3. That within 90 days from the date of these orders the Respondent shall pay to the Applicant the sum of $50,000.00.

4. That in the event the payment is not made by 9 September 2017, the Respondent forthwith place the property situate at F Street, Geelong (“F Street property”) to be sold altogether out of Court and the proceeds of sale be paid out as follows:

   (a)First, to pay the costs, commission and expense of the sale;

   (b)Secondly, to discharge the mortgage secured over the F Street property;

   (c)Thirdly, to pay so much of the payment outstanding, including penalty interest calculated in accordance with the Rules of Court; and

   (d)Fourthly, the balance to the Respondent.

5. That, in the event there is insufficient equity in the F Street property to meet the payment, then the Respondent forthwith place the property situate at G Street, Geelong (“G Street property”) be sold altogether out of Court and the proceeds of sale be paid out as follows:

   (a)First, to pay the costs, commission and expense of the sale;

   (b)Secondly, to discharge the mortgage secured over the G Street property;

   (c)Thirdly, to pay so much of the payment outstanding, including penalty interest calculated in accordance with the Rules of Court; and

   (d)Fourthly, the balance to the Respondent.

6. Within 7 days of compliance by the Respondent with whichever of Orders 4 and 5 is later complied with, the Applicant shall at her expense withdraw all caveats lodged by her, or on her behalf, over any property in which the Respondent or his associated corporate entities has an interest including but not limited to the premises at:

   (a)       F Street, Geelong

   (b)       G Street, Geelong;

   (c)       H Street, I Town.

7. Except as otherwise provided in these orders each party is declared to have no further interest in the items of personalty and real property in the possession of the other.

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

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

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: MLC558/2015

Ms Bolt

Applicant

And

Mr Waldo

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application pursuant to s 90SM of the Family Law Act 1975 (“the Act”) by Ms Bolt for adjustment of interests in real property owned by herself and Mr Waldo (and entities in which Mr Waldo has an interest) and for payment of a cash sum to her.

2. By his Response, Mr Waldo sought dismissal of the application on alternate bases:

   a.That there has not been a de facto relationship between the parties and hence the Court has no jurisdiction; or

   b.If the Court declared such a relationship did exist, then it would not be just and equitable to make any adjustment to current interests.

3. Prior to final submissions counsel for Mr Waldo tendered a minute[1] which proposed that in the event the Court concluded there should be an adjustment to interests, Mr Waldo should be permitted to buy out the interest of Ms Bolt in the jointly owned property.

   [1] Exhibit 18

4. The matter was heard on 3 to 6 April 2017 in the Melbourne registry of the Family Court of Australia but was adjourned on the morning of the fourth day. There was a further day by videolink between Newcastle and Melbourne on 9 May 2017. On that day there was a successful Application to re-open by the Respondent Mr Waldo and thereafter final submissions by each party.

The Relationship

1. The parties met in about 2007. Their relationship developed from friendship to intimacy and continued, with at least one short break, for a period of about seven years.

2. The question for the Court is whether that relationship had the legal character of a de facto relationship for all or any part of that period of years.

The Applicant - Ms Bolt

1. Ms Bolt is aged 41. She has three children from her marriage to Mr J. Those children are aged 17, 14 and 12 and are living with her. Ms Bolt is not divorced from her estranged husband.

2. Ms Bolt also has the child born to the parties in these proceedings living with her, namely B, a boy now aged four.

3. Ms Bolt presently lives in E Town, (a small township near K Town in Victoria), together with the four children.

4. There is evidence of a new relationship for Ms Bolt, with Mr L, since late December 2015. However that relationship is in its early stages.

The Respondent - Mr Waldo

1. Mr Waldo is aged 59. He is the father of one child, born of the parties’ relationship. He has apparently never married.

2. Mr Waldo lives alone in his home in the city of Geelong. There is no evidence of a new partner for him. He works in Geelong (Suburb M), K Town (E Town) and I Town, the city/township venues for the businesses run by his company, N Pty Ltd.

The Evidence

1. The documents relied on in respect of the application were as follows: 

For the Applicant - Ms Bolt

(a)Further Amended Initiating Application filed 10/02/2017 subject to orders sought by the Applicant contained in Outline of Case;[2]

[2] Exhibit 1

(b)Affidavit of Ms Bolt filed 15/02/2017;

(c)Affidavit in Reply of Ms Bolt filed 14/03/2017;

(d)Further Financial Statement of Ms Bolt filed 10/02/2017;

For the Respondent - Mr Waldo

(e)Amended Response filed 14/05/2015 subject to orders sought by the Respondent contained in Minute of Orders;[3]

[3] Exhibit 18

(f)Affidavit of Mr Waldo filed 24/02/2017;

(g)Financial Statement of Mr Waldo filed 30/03/2017;

Single expert valuer

(h)Affidavit of Single Expert – Mr O Valuer filed 21/03/2017.

History of Relevant Events

The parties’ relationship

1. The parties met in approximately 2007. The circumstances were social. Ms Bolt and her husband attended a barbeque where Mr Waldo was also a guest. Mr Waldo subsequently offered Ms Bolt a job in his business, then run out of premises in G Street, Geelong.

2. In 2008 when her youngest child started kindergarten/preschool Ms Bolt began working for Mr Waldo for five hours on one day per week. That arrangement continued into 2009. At that time Ms Bolt was living in the small township of P Town, a 30 minute drive, northwest of Geelong.

3. Also, in 2009 Ms Bolt married her partner of 10 years, Mr J, the father of her three older children. She did so to please and reassure her late mother, who was at that time terminally ill. It does not appear to be contentious that the marital relationship between Ms Bolt and Mr J was under strain at that time.

4. Ms Bolt told Mr Waldo of her marriage after the event. She says she detected shock and disappointment in his reaction to her news. Mr Waldo concedes surprise.

5. Ms Bolt, realising that Mr Waldo was disappointed about the news of her marriage, understood that he had an interest in her. The parties began seeing each other daily thereafter and would talk on the telephone most evenings.

6. In November 2009 the parties attended a work related event in a town nearby to Geelong. On the way home Ms Bolt says Mr Waldo made a declaration of love to her and she reciprocated. Mr Waldo is unable to recall having made that statement although in the circumstances of their developing relationship, it seems likely that he did.

7. In December 2009 the parties went out for dinner on occasions and the intimacy between them deepened.

8. Ms Bolt told her husband about the relationship developing between her and Mr Waldo. After his angry and violent reaction, Ms Bolt left the matrimonial home in P Town taking the children, and went to stay in her sister’s holiday house at Q Town, a small town in Victoria.

9. Mr Waldo visited Ms Bolt at Q Town and a sexual relationship began between the parties at that time. Mr Waldo stayed at least one or two, perhaps more nights per week.

10. In early January 2010 Ms Bolt moved with her three children into the home of Mr Waldo in Geelong, she says at his request. Mr Waldo agrees that Ms Bolt did so but asserts that he was acceding to her request. In any event, there was an agreement between the parties that Ms Bolt and her three children would move to live in the home of Mr Waldo.

11. The arrangement lasted for less than two weeks. Ms Bolt alleges that Mr Waldo assaulted her one evening, grabbing her from behind and putting her in a headlock. Mr Waldo denies any such incident. In any event, Ms Bolt decided to move back out of Mr Waldo’s home with the children and all of the furniture, recently delivered.

12. In January 2010 Ms Bolt’s husband visited her at the Geelong property, although remaining outside the home, and apologised for his past conduct.

13. Whatever her motivation, Ms Bolt, together with the children, moved back into the family home in P Town. There must have been some cause for Ms Bolt to move out with the children and all of their belongings but it is unclear whether Ms Bolt was upset with Mr Waldo or inclined to reunite with her husband.

14. After Easter 2010 Ms Bolt again moved back with the children to the home of Mr Waldo in Geelong, staying for six weeks before again moving out. Annexed to Ms Bolt’s affidavit[4] is an undated handwritten letter to her, from Mr Waldo, calling off the relationship between them. The letter, excerpts from which follow, has quite a passionate tone:

    I was always ready to fully commit to you but it was no use buying a house, farm or car for us if you are going to head back to [P Town] when things were not going right, or when you felt guilty or sorry for [Mr J] [Ms Bolt’s husband].

    And further:

    The kids were a bit of challenge but were never an issue. I loved them as my own and loved being with them all. I will truly miss them.

    And finally,

    We needed to have some stability in our relationship which lately wasn’t happening. I’m going to get on with my life and all the best [for] yours. I will cherish the countless good times we had together for the rest of my life, hope you find happiness and contentment, goodby (sic), [Mr Waldo].

    [4] Affidavit of the Applicant filed 15/02/2017, Annexure ARB5

15. During cross-examination the proposition was put to Ms Bolt that Mr Waldo had told her that he wasn’t interested in a long term relationship. Ms Bolt replied “That’s not what he indicated to me. He told me and everyone that’s what he wanted”. That response, in my view, is consistent with the sentiments expressed in the letter referred to above.

16. By late 2010 Ms Bolt had been back living in the family home with her husband for more than six months. Their marital relationship was fractured. Ms Bolt also maintained contact with Mr Waldo, through working in his shop and communicating with him, probably until the letter referred to above was received.

Relationship renewed

1. In 2011 events took a different turn. Ms Bolt’s husband began a relationship with a new partner. Ms Bolt became engaged in conflict with her husband’s new partner and subsequently Ms Bolt had an accident driving her car in which she and one of her children were injured. Ms Bolt moved in for a few days to live with Mr Waldo in his home in Geelong.

2. In mid-February 2011 Ms Bolt changed the locks on the home at P Town forcing her husband to leave. It was at that point, Ms Bolt asserts, that Mr Waldo came to live with her in her home at P Town.

3. The parties disagree about the extent of common residence. Ms Bolt says that Mr Waldo lived in the household and was only absent from it on a few days over a period of 18 months. Mr Waldo asserts that he stayed regularly, at times as many as six nights per week, but expressed some discontent at not having a security key. He denied living permanently in the household. The evidence of Ms Bolt that Mr Waldo gave her $100 cash per week as a contribution to food is undisputed. I consider that on the balance of probabilities that Mr Waldo spent the majority of his time in Ms Bolt’s home in P Town after mid-February 2011.

4. In mid-2011 Ms Bolt’s mother died after a long period of illness. The last one or two months of her life were spent in a palliative care unit.

5. After her mother’s death, Ms Bolt took the children on a holiday to Queensland. Mr Waldo flew up and joined them there. Ms Bolt had been hopeful of moving to live in R Town, Queensland, with her children. She said that there was discussion between herself and Mr Waldo during this holiday about relocation together to live there.

6. Mr Waldo, in his affidavit in response, does not dispute Ms Bolt’s version of events[5] that he told her he was keen to inspect some properties in Queensland and to start a business together with her. Mr Waldo denies having had any intention of moving to Queensland. I conclude that Mr Waldo was indulging Ms Bolt’s hopes at that time.

   [5] Affidavit of the Applicant filed 15/02/2017, par 37

7. The holiday and the conversation about a shared life in Queensland is an indication that the relationship between the parties had become more committed.

8. The parties returned from Queensland to Victoria and continued living together in Ms Bolt’s family home in P Town.

9. In December 2011 Ms Bolt attended with Mr Waldo at his sister’s funeral.

10. Annexed to Ms Bolt’s affidavit[6] are copies of cards with loving messages from Mr Waldo to Ms Bolt and to her children, particularly to Ms Bolt’s middle child S, on special occasions.

    [6] Affidavit of the Applicant filed 15/02/2017, Annexure ARB-1

11. Ms Bolt asserts that Mr Waldo proposed marriage to her. Mr Waldo denies such a proposal at any time. It is an agreed fact that a valuable ring was given as a gift by Mr Waldo to Ms Bolt.[7]

    [7] Exhibit 11 – sighted and returned

12. On either the 3 or 4 July 2012 Ms Bolt sold her property at P Town. By then there had been Family Law proceedings for adjustment of interests in property between herself and her former husband. Ms Bolt had acquired her husband’s interest in the family home in P Town. The sale settled on 3 or 4 July 2012. Ms Bolt had funds of approximately $500,000.

13. Around this time, mid-2012, Ms Bolt became pregnant with the parties’ child. Mr Waldo was shocked. He became fearful that Ms Bolt was “just after his money”.

14. Ms Bolt referred to Mr Waldo having “spoken endearingly” about becoming a father and the parties never having used contraception. Mr Waldo refers to having believed that he was probably infertile after a bout of meningitis in childhood. I accept the evidence of both parties on this point.

15. Despite Mr Waldo’s negative feelings initially the relationship clearly continued.

16. Ms Bolt leased a furnished apartment in Geelong within walking distance of Mr Waldo’s home. She says it was a joint decision. Mr Waldo denies it was. Further he denied having seen Ms Bolt very often at all whilst she was living there.

17. Thereafter, Ms Bolt began looking for another property to buy in which to house her family. She had the proceeds of sale of the P Town property to invest.

18. On 26 October 2012 Mr Waldo purchased Business T. The purchase price was $900,000 which was financed by a loan of $845,000 from Mr Waldo’s parents and a loan for the balance from the bank.

19. In the Christmas holiday period in 2012/2013 the parties and children stayed in the holiday house at Q Town owned by Ms Bolt’s sister.

20. On 18 December 2012 Ms Bolt attended a Waldo family dinner either to commemorate 12 months having passed since the death of Mr Waldo’s sister or to celebrate a raffle win by Mr Waldo’s mother (Mrs Waldo). Whatever the reason it was a family occasion which Ms Bolt attended as Mr Waldo’s companion.

21. On 25 December 2012 Mr Waldo arrived hours late to the Bolt family Christmas lunch. He told Ms Bolt he wanted their relationship to end. There was a sharp verbal exchange in which Ms Bolt told Mr Waldo to leave the property.

22. The parties swiftly recovered from this incident and then spent a week together in a holiday house at U Town while Ms Bolt’s children were holidaying with their father.

23. Ms Bolt noted that Mr Waldo appeared to be ill and in pain with his back.

24. In January 2013 the parties stayed in a hotel in Melbourne for a couple of days to celebrate their birthdays which are two days apart. During that weekend, friends, a married couple, also involved in the same type of business, spent some time with the parties.[8]

    [8] Affidavit of Frances Ms V filed 10/02/2017, par 9

25. I accept that Ms Bolt expressed interest in buying the property at E Town, K Town, a property which included acreage. The natural advantage of buying the freehold was that Mr Waldo’s company (C Pty Ltd) was the tenant of the lease over the property and ran one of his businesses there.

26. Mr Waldo proposed that he and Ms Bolt buy the property together. I accept that it must have been fortuitous for this property to come on the market. It was suitable, being acreage for Ms Bolt’s children and the new child expected in March of that year, with the further benefit of providing an income stream potentially for Ms Bolt from the rental income of Mr Waldo’s company who ran one of the businesses there.

27. In January 2013 Ms Bolt’s children returned to school in Geelong and in early February 2013 work commenced on the building of a house on the E Town property. Substantial work had been done although the house was not complete when the parties’ son B was born.

1. In February/March 2013 Ms Bolt purchased 50 per cent of the real property at E Town as tenants in common with C Pty Ltd.

2. Ms Bolt also gave an individual guarantee and indemnity limited to $400,000 and a mortgage of $70,000 in favour of the bank [ANZ] in respect of the obligations of C Pty Ltd in its own capacity and as trustee for the C Property Trust and N Pty Ltd. Ms Bolt was in labour and on the way to hospital when she saw the solicitor to sign the guarantee and mortgage.

3. The purchase of the E Town property settled in April 2013.

4. The premises were then leased to N Pty Ltd. Ms Bolt is said to have been unable to fund all her share of associated costs of purchase. There may have been an arrangement for Mr Waldo to cover those costs with the payment offset against rent for a period. That is part of a discrete dispute between the parties over outstanding rent to be determined in the State tribunal VCAT.

5. Ms Bolt lived in the unfinished house with the children. Mr Waldo did not move in but returned to his home in Geelong. Mr Waldo came to see his new baby together with his mother but that visit ended badly as between the two women.

6. In May 2013 Ms Bolt declined an invitation made by Mr Waldo to a Mother’s Day lunch including his mother.

Serious illness for Mr Waldo

1. Soon after Mothers’ Day 2013, Mr Waldo let Ms Bolt know that he was ill and had been diagnosed with cancer. Ms Bolt drove to Melbourne each day with the new baby to visit Mr Waldo, a three hour return trip during school hours. Mr Waldo told the three children of his illness once a diagnosis of Hodgkins Lymphoma and a plan for its successful treatment was in place.

2. In the school holidays in June/July 2013 Ms Bolt and the children stayed with Mr Waldo in his home in Geelong.

3. In the second half of 2013 Mr Waldo became ill and his condition deteriorated. He had double pneumonia and was unconscious for 10 days.

4. Ms Bolt moved in to Mr Waldo’s house in Geelong to assist Mr Waldo whilst he was recuperating. She moved her two younger children back to their former schools in Geelong. She allowed her older son not to attend school for the balance of that year but rather to work with Mr Waldo’s brother. I am satisfied that she “dropped everything” to assist Mr Waldo to recover his health.

5. Annexed to her affidavit are newspaper articles[9] in relation to Mr Waldo’s ill health with photographs of  Mr Waldo and his new baby son, and of Ms Bolt and her oldest child telling of their fundraising efforts for a cancer foundation.

   [9] Affidavit of the Applicant filed 15/02/2017, Annexures 2 and 3

6. Ms Bolt cooked and delivered meals to Mr Waldo at hospital and cooked for him and attended to his needs vigilantly when he returned from hospital. She asserts that the relationship and bond between Mr Waldo and herself was at its strongest while he was sick,[10] that she was pleased to assist him and he was grateful for her assistance. Mr Waldo concedes gratitude.

   [10] Affidavit of the Applicant filed 15/02/2017, par 76

7. Ms Bolt also made some decisions in respect of Mr Waldo’s business in a cautious way and did all that she could to help him.

8. In January 2014 there was a conversation between the parties, “We both agreed that the kids and I were going to stay in [F Street] [Mr Waldo’s Geelong home] for another year.”[11]  However conflict erupted. Ms Bolt experienced Mr Waldo as nasty to her and the children as a result of drinking alcohol whilst taking strong painkillers. Ms Bolt decided to move back to E Town with the children. She did so and re-enrolled them at their schools in K Town.

   [11] Affidavit of the Applicant filed 15/02/2017, par 78

9. The parties appeared to recover from these events and in the first half of 2014 the parties and the four children had a holiday in the Northern Territory. There is a photograph annexed to the wife’s affidavit showing a beaming family photograph with both parties and all four children.

10. In May 2014 Mr Waldo again invited Ms Bolt to a Mother’s Day lunch which would include his own mother and, Ms Bolt again declined.

11. Over the next two or three months Mr Waldo visited Ms Bolt in E Town [K Town] but not as often and for not as long.

12. In mid-2014 Ms Bolt moved her clothes out from Mr Waldo’s wardrobe in his home in Geelong.

End of the relationship

1. Sometime in July 2014 Mr Waldo sent Ms Bolt a text message saying he had decided to end the relationship. This time the relationship did not resume.

2. Thereafter, the parties quickly descended into mutual abuse by text and subsequently there were proceedings in the State Court for personal protection orders.

First Application to Family Court of Australia

1. On 28 January 2015 Ms Bolt filed an Initiating Application in the Family Court for orders in respect of both parenting and property.

2. On 4 August 2014 final consent orders were made for parenting arrangements for the parties’ son.

Refinancing by Mr Waldo of E Town property

1. On 9 January 2015 ANZ Bank offered Mr Waldo financial facilities which saw Ms Bolt released by the bank. The individual guarantee and indemnity was taken and the mortgage released.

A Declaration Under s 90RD

1. The first consideration is a declaration under s 90RD.

2. If an application is made for an order in relation to maintenance or adjustment of interest in property, and a claim is made in support of the application that a de facto relationship existed between Ms Bolt and another person, the Court may for the purposes of those proceedings declare that a de facto relationship existed or never existed between those two persons.

3. A declaration under s 90RD(1) of the existence of a de facto relationship may also declare any of the following:

   a.The period or periods the de facto relationship for the purposes of s 90SB(a);

   b.Whether there is a child of the de facto relationship;

   c.Whether one of the parties to the de facto relationship made substantial contributions of a kind mentioned in s 90SM or (a), (b), or (c);

   d.When the de facto relationship ended;

   e.Where each of the parties to the de facto relationship was ordinarily resident during the de facto relationship.

4. In this matter, Ms Bolt asserts that there was a de facto relationship between the parties between February 2011 and July 2014. There is a child of the parties born during that period.

5. “De facto relationship” is defined in s 4AA of the Act as follows:

   (1)      A person is in a de facto relationshipwith another person if:

   (a)  the persons are not legally married to each other; and

   (b)  the persons are not related by family; and

(c)  having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.[12]

[12] Paragraph (c) has effect subject to sup-paragraph (5) of the Family Law Act 1975

(2)Those circumstances may 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 for 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 aspects of the relationship.

1. Importantly no particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.[13]  A Court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the Court in the circumstances of the case.

   [13] Sub-paragraph (3) of the Family Law Act 1975

Analysis

1. The parties formed an association late in 2007 which continued until an unknown date in 2010. That period was characterised by a willingness to be committed by Mr Waldo and ambivalence by Ms Bolt both towards Mr Waldo and her marriage.

2. In February 2011 when Ms Bolt ended the marital relationship with her husband I am satisfied that the relationship between the parties blossomed into a de facto relationship and I take the following aspects into account in coming to that conclusion:

Common residence

a)The parties lived together most of the time between February 2011 and July 2012 in Ms Bolt’s matrimonial home in P Town.

b)Thereafter Ms Bolt moved into rented premises [W Street] nearby to Mr Waldo’s home in Geelong and they spent time together although I cannot be sure how often and for what length of time.

c)In 2013 a property at E Town was purchased and a house was built with both parties investing in that building work.

d)The parties worked together on the E Town property but Mr Waldo did not live in it with Ms Bolt, illness having intervened. He continued to run a business there.

e)Up until July 2014 the parties spent time together, and enjoyed a holiday interstate together. There are photographs, not only of the parties but together with the children, which are relaxed happy family shots.[14]

[14] Affidavit of the Applicant filed 15/02/2017, Annexure ARB4

Sexual relationship

f)The parties maintained a sexual relationship throughout their years together which was an important element for both of them.

g)There is no evidence of other partners for either party.

A child of the relationship

h)The parties had a child together in 2013 and although that child may not have been planned, his arrival was celebrated. The parties have put arrangements in place by consent orders, for his care and upbringing.

Acquisition of property together

i)In 2013 the parties bought property together (Mr Waldo through his company C Pty Ltd), namely the freehold of the property at E Town of which Mr Waldo’s company (N Pty Ltd) had the leasehold. Ms Bolt invested all of the proceeds of sale of her former matrimonial home ($400,000 plus).

j)Further Ms Bolt gave a personal guarantee and indemnity to the bank up to $400,000 for the bank loan to C Pty Ltd. She also entered into a mortgage with C Pty Ltd for $70,000.

k)This arrangement created a situation where Ms Bolt became the landlord for Mr Waldo’s company which leased the premises used to run one of Mr Waldo’s three linked businesses.

l)The property provided a home for Ms Bolt and her children including the parties’ child.

Personal care and support

m)Ms Bolt supported and assisted Mr Waldo in every way she could for about 12 months commencing in May 2013 during his severe illness with two periods of hospitalisation. Ms Bolt travelled to Geelong to assist Mr Waldo in hospital and then lived with him, together with the four children, in his Geelong property until final separation in 2014.

Public aspect

n)The parties were known as a couple by their families and friends. Ms Bolt’s children especially her middle child came to think of Mr Waldo as a father. The fact that Ms Bolt’s oldest child, a son, also angrily clashed with him is not a contradiction. Likewise the fact that members of Mr Waldo’s family came to dislike and disapprove of Ms Bolt does not detract from the significance of that extended family connection.

o)The parties’ were known as a couple and as a family. In an interview with the local newspaper, the cover of which featured a photograph of Mr Waldo and the parties’ son,[15]  Mr Waldo spoke in a heartfelt way about the support of his “partner” [Ms Bolt] during his illness.

p)He also gave an interview in 2013, with a photo of then baby B, in support of cancer fund raising undertaken by himself and Ms Bolt.[16]

[15] Exhibit 12

[16] Affidavit of the Applicant filed 15/02/2017, Annexures ARB2 and ARB3

Conclusion

1. The relationship was not a long one, but it was an eventful and intense one, marked by the significant events of: The birth of a child; dual purpose joint investment in a piece of real estate; and an extended episode of ill health for Mr Waldo during which Ms Bolt cared for him.

2. I am comfortably satisfied that there was “a merger of their two lives into coupledom”[17] such that a de facto relationship did exist between the parties between February 2011 and July 2014 and a declaration will be made accordingly.

   [17]Jonah v White (2011) 45 FamLR46 at 60

3. Having concluded that a de facto relationship existed I now turn to consideration of adjustment of interests or not in the relevant assets and liabilities.

Approach to alteration of interests in property

1. In considering applications for alteration of property interests and transfer of property the Court must first consider whether it is just and equitable to make any adjustment to interests currently held.[18]

   [18]Stanford v Stanford (2012) 247 CLR 108

2. The Court must first identify the existing legal and equitable interests of the parties in property[19] and then identify a principled reason for interfering with the arrangements in place.

   [19] Stanford v Stanford (2012) 247 CLR 108; Bevan & Bevan [2013] FamCAFC 116

3. If an alteration should be made, to consider the matters contained in

   
   

   s 90SM and 90SF(3) of the Act in coming to an adjustment; and

4. Finally, to analyse and consider whether the adjustment under consideration would be just and equitable.

Identify the assets and liabilities of the parties

1. The parties’ assets and liabilities are set out in the joint balance sheet:[20]

   [20] Exhibit 19

Ownership		Description	App’s value	Resp’s value
ASSETS
1	App & Resp’s company C Pty Ltd as tenants-in-common in equal shares	E Town property	$1,275,000 (vacant possession)	$1,215,000 (subject to lease)
2	App	Chose-in-action (rent)	NK	NK
3	App	Antiques	$49,415	$49,415
4	App	Share portfolio	Nominal	$1,400
5	Resp	Antiques	$43,675	$43,675
6	App	Commonwealth Bank Accounts	Nominal	$2,415
7	Resp	X Town to be purchased	No Equity1	No Equity
8	Resp	Deposit on X Town	$93,000	$93,000
9	Resp’s company C Pty Ltd	H Street, I Town	$1,630,000 (subject to lease)	$1,630,0002 (subject to lease)
10	Resp’s company C Pty Ltd	G Street, Geelong	$1,000,000	$1,000,000
11	Resp	F Street, Geelong	$750,000	$750,000
12	Resp’s company N Pty Ltd	T Businesses	$1,643,038	$1,643,038
13	Resp’s company N Pty Ltd	Shares	$24,000	$24,000
14	Resp	ANZ Bank account (including B)	$13,000	$12,957
15	App	Motor vehicle	Not registered in Applicant’s name	$8,000
16	App	Chose in action re. lease	NK	NK
17	Resp’s Company	Chose in action re. lease	NK	NK
Total			$6,521,128	$6,472,900
LIABILITIES
18	App	Tax Liability	$23,447	$18,1973
19	Resp’s company N Pty Ltd	Business Loan – ANZ	$1,660,000	$1,660,000
20	Resp and company N Pty Ltd	Loan from Respondent’s parents company Y Pty Ltd	NIL4	$842,000
21	Resp’s company N Pty Ltd	Unpaid rent	NK	NK
22	App	Damages for breach of lease	NK	NK
Total			$1,683,447	$2,520,197
Net Total			$4,837,681	$3,952,703
SUPERANNUATION
23	App	Colonial First State		$72,500
24	Resp	IOOF		$78,000
NETT Total

¹ This property was purchased after separation and is due to settle in May 2017. The Respondent has deposed to there being no equity in this property.

²The value as vacant possession is $1,260,000.

³ Outstanding tax from Amended Returns less GST refund noted on tax Estimate Sheet.

4 Subject to production of Loan Agreement: No Loan Agreement produced nor any evidence of a loan between the Respondent and his parents.

Consideration of Consolidated Balance Sheet

1. Items 2, 7, 16 and 17 are omitted. No values are identified.

2. Item 1 - value is $1,215,000. The evidence is (confirmed during submissions) that the Respondent intends to continue to lease the commercial site on the E Town property. The first five year lease is due to expire in October 2017. There are further four five year periods available. Accordingly, the value should be subject to lease.

3. Item 4 - is conceded by the Respondent as funds now spent. Item is omitted.

4. Item 6 - Respondent’s value is best evidence.

5. Item 14 - The difference is minor. It is the Respondent’s account. His value is accepted.

6. Item 15 - There was no submission on this item. The Applicant has the use of the vehicle. The Respondent’s value is accepted.

7. Item 18 - There was no submission on this item. The Respondent has (in footnote 3 to the Balance Sheet) interpreted documents tendered. The Applicant is best placed to identify her tax liability. Her value is accepted.

8. Item 20 - This is a significant item. The application to re-open the evidence related to this issue. The Applicant concedes that $842,000 was advanced by Mr Waldo’s parents through their company Y Pty Ltd.

   The issues in dispute are:  

   ·Whether the advance is a loan, and if it is;

   ·Whether it is repayable and if so on what terms.

9. The question was addressed in the unchallenged evidence of Mrs Waldo, Mr Waldo’s mother.[21]

   [21] Affidavit of Mrs Waldo filed 24/02/2017, par 6

10. Mrs Waldo and her husband are self-funded retirees who have arranged their affairs in the following way:

    We receive an income from [Mr Waldo’s] company each month which is a 9 per cent return on funds that we loaned to him in order to purchase the [Business T] of almost $900,000. [October 2012].

11. Mrs Waldo went on to say that she and her husband had had the funds in a term deposit at 7 per cent but their son had offered to pay 9 per cent interest. That would have been the arrangement and payment for four and a half years.

12. The Respondent concedes that there is no written loan document.

13. There is no evidence of the conversations which gave rise to the terms of the loan with particular reference to term of the loan repayment date and whether it was principal and interest or interest only.

14. The submission was that without evidence supporting the nature of the advance to Mr Waldo by his parents the current sum claimed as a debt should be omitted from the asset pool.

15. To do so would, in my view, be unjust.

16. There is no challenge to the money having been provided.

17. On balance, it seems unlikely that the advance will be recalled.

18. Mr Waldo’s parents are in the very late eighties. They are apparently comfortable with the current arrangement and pleased to assist their son.

19. Further, the fact that Mr Waldo has very recently bought another property, paying a deposit of $93,000 on the purchase[22] suggests that he is not under financial pressure from his parents in respect of their advance.

    [22] Item 8 on the Balance Sheet

20. However, I cannot exclude the possibility that circumstances could change and that Mr Waldo would be compelled by moral obligation to return some, or all of, the capital sum to his parents or in due course to their estates.

21. In my view, it would be unjust to remove the item from the Balance Sheet.

22. Rather, the uncertainty of the terms and the unlikelihood of repayment should properly be taken into account in consideration of s 90SF factors.

23. The amended Consolidated Balance Sheet is as follows:

Ownership		Description	App’s value	Resp’s value
ASSETS
1	App & Resp’s company C Pty Ltd as tenants-in-common in equal shares	E Town property	$1,215,000 (vacant possession)	$1,215,000 (subject to lease)
2	App	Antiques	$49,415	$49,415
3	Resp	Antiques	$43,675	$43,675
4	App	Commonwealth Bank Accounts	$2,415	$2,415
5	Resp	Deposit on X Town	$93,000	$93,000
6	Resp’s company C Pty Ltd	H Street, I Town	$1,630,000 (subject to lease)	$1,630,0001 (subject to lease)
7	Resp’s company C Pty Ltd	G Street, Geelong	$1,000,000	$1,000,000
8	Resp	F Street, Geelong	$750,000	$750,000
9	Resp’s company N Pty Ltd	T Businesses	$1,643,038	$1,643,038
10	Resp’s company N Pty Ltd	Shares	$24,000	$24,000
11	Resp	ANZ Bank account (including B)	$12,957	$12,957
12	App	Motor vehicle	$8,000	$8,000
Total			$6,471,500	$6,471,500
LIABILITIES
13	App	Tax Liability	$23,447	$23,447
14	Resp’s company N Pty Ltd	Business Loan – ANZ	$1,660,000	$1,660,000
15	Resp and company N Pty Ltd	Loan from Respondent’s parents’ company Y Pty Ltd	$842,000	$842,000
16	Resp’s company N Pty Ltd	Unpaid rent	NK	NK
17	App	Damages for breach of lease	NK	NK
Total			$2,525,447	$2,525,447
Net Total			$3,946,053	$3,946,053
SUPERANNUATION
18	App	Colonial First State		$72,500
19	Resp	IOOF		$78,000
Total				$4,096,553

[1] The value as vacant possession is $1,260,000

Would it be just and equitable to make an adjustment to interests in property?

1. In considering this matter I note that the Applicant wishes to put an end to the financial relationship between the parties.

2. Further although the Respondent presses for summary dismissal of the application he too wishes to adjust interests to provide control over the freehold of his business operation. He wishes to buy out the interest of Ms Bolt.

3. The agreement between the parties in 2013 for a joint purchase of the E Town property would not only provide a family home but would also secure the freehold of the commercial site of one of the three businesses operated by Mr Waldo. That legal connection, no longer suits their purposes.

4. In 2015 Ms Bolt was released from her guarantee and obligations under the mortgage. It was the beginning of the dismantling of the financial relationship.

5. I conclude that an adjustment is justified.

Contributions under s 90SM(4)

1. The parties each brought assets to their relationship.

2. In February 2011 Mr Waldo owned both his home in F Street, Geelong and the property in G Street Geelong where he conducted his business. There are no historical valuations but those two assets have a current combined value of $1,750,000.

3. Ms Bolt had a shared interest in her former matrimonial home in P Town but the exclusive use of it until its sale in mid-2012. Her half share in mid-2012 was crystallised at $500,000.

4. It is impossible to come to an accurate assessment of relative value of initial contributions but safe to say they substantially favour Mr Waldo.

5. The parties lived in the home in P Town for the first 16 months of their relationship. Ms Bolt cooked meals and carried out the domestic work of the household. Mr Waldo made an occasional contribution of $100 towards food and expenses. He also met all of the expenses and outgoings on his own properties.

6. In mid-2012 everything changed. Ms Bolt learned she was pregnant, moved out of the P Town home after its sale and was looking for a family home more urgently. She rented close by to Mr Waldo.

7. In October 2012 with the assistance of an advance from his parents Mr Waldo greatly expanded his business operations. He bought, for $900,000 a constellation of businesses from receivers in liquidation. He hoped to acquire the freehold of each of the three relevant sites.

8. Borrowing from the bank, he bought I Town, missed out on Geelong (Suburb M) and jointly with his partner Ms Bolt in 2013, bought K Town (E Town).

9. Both parties worked very hard to get the new businesses operating successfully.

10. Mr Waldo took on the greater burden of debt but Ms Bolt offered her guarantee which, had it been called on, would have extinguished her interest in the E Town property.

11. In 2013 the parties’ child was born. Ms Bolt was entirely responsible for his care for reasons beyond the control of Mr Waldo. Within weeks of the baby’s birth Mr Waldo was diagnosed with a life threatening cancer.

12. From May 2013 Mr Waldo was ill and focused on survival. His family came to his aid and so did Ms Bolt. She moved back to K Town and attended to his needs devotedly. This was a significant contribution to welfare in relation to the child and to the recovery of Mr Waldo.

13. By July 2014 the relationship had broken down in a cloud of acrimony.

14. The contributions both financial and to welfare made by Ms Bolt during this period are substantial and should be recognised. An order for the transfer to her of the other half share in the E Town property is a proper recognition of her initial and ongoing contributions. That asset represents thirty per cent of the total net asset pool.

15. I now turn to the relevant matters for the current and future needs of the parties:

Relevant factors under s 90SF(3)

The age and state of health of each of the parties

1. The applicant is 41 and apparently in good health.

2. The respondent is 59, has made a good recovery from cancer and consequential illnesses.

The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment  

1. The Applicant is not in paid employment. But for a rent dispute between the parties, she would be receiving an income from the tenant at E Town, N Pty Ltd. There is a need for a small contingency fund for the short term future until the rental position is clarified by VCAT proceedings.

2. The Respondent discloses an income of about $2,000 per week with expenses of $1,300. However, he has the benefit of attributing expenses to his businesses. His asset and debt position is a strong one.

Whether either party has the care or control of a child of the de facto relationship who has not attained the age of 18 years

1. Ms Bolt has the majority care of the parties’ four year old son.

2. Mr Waldo spends time with him consistent with Court orders.

Commitments of each of the parties that are necessary to enable the party to support: (i) himself or herself; and (ii) a child or another person that the party has a duty to maintain

1. The mother has the majority care of three children from her marriage aged between 12 and 17. Her oldest child has developmental problems and struggled at school.

Subject to s 90SF(3), 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

1. Ms Bolt received a Commonwealth benefit for the special needs of her oldest son. Her financial statement suggests that he is now in paid employment.

Where the parties have separated, a standard of living that in all the circumstances is reasonable

1. The unique benefit that the E Town property potentially provided was an income stream as rent from Mr Waldo’s business back to Ms Bolt (and Mr Waldo) and the family.

2. Now that the parties are separated the tax effectiveness of that arrangement for them as a couple is lost.

3. However the house was purpose built and the children are resettled in local schools.

The duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration

1. The relationship was short being three years and five months. However a child was born who has not yet started school.

The need to protect a party who wishes to continue that party's role as a parent

1. One of the considerations for buying the E Town property was the acreage and freedom it provided for the children including the parties’ child.

The terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to: (i) a party to the marriage; or (ii) a person who is a party to a de facto relationship with a party to the marriage; or (iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or (iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii)

1. An order will be made for the transfer by Mr Waldo’s company to Ms Bolt of the other half share in the E Town property.

Any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage

1. Ms Bolt receives child support from her husband and from Mr Waldo in roughly equivalent amounts, a combined total of about $550 per week.

2. It is likely that Mr Waldo will provide financially for the child’s education and future in a discretionary way.

Any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account

1. The liability which relates to the advance from Mr Waldo’s parents does not have a commercial character. In the absence of loan documents it would be difficult to enforce. It is an arrangement based in trust.

2. Mr Waldo had the use of the funds and has not been required to repay in fixed instalments.

3. It is probable that the payments made by Mr Waldo are interest only.

4. The consequence is that the financial position of Mr Waldo in terms of the asset to debt ratio is more favourable to him than the Balance Sheet suggests.

5. I conclude that there should be a modest cash adjustment to Ms Bolt for contingencies particularly as there will be a period of uncertainty about income until the VCAT proceedings are concluded.

6. The basis for this is the need for care, support and supervision of the child for almost 14 years in circumstances where Ms Bolt will have rental income and an unencumbered home.

Analysis of whether the adjustment contemplated is just and equitable

1. The Applicant has:

Item	Description	Value
1	Half share in E Town property	$607,500
3	Antiques	$49,415
6	Commonwealth Bank of Australia bank account	$2,415
15	Motor vehicle	$8,000
Total		$667,330
23	Superannuation	$72,500
Total		$739,830
Less
18	Tax liability	$23,447
NET TOTAL		$716,383

1. The Respondent has:

Item	Description	Value
1	Half share in E Town property (C Pty Ltd)	$607,500
5	Antiques	$43,675
8	X Town	$93,000
9	I Town real estate (C Pty Ltd)	$1,630, 000
10	G Street property (C Pty Ltd)	$1,000,000
11	F Street Geelong property	$750,000
12	T Businesses (N Pty Ltd)	$1,643,038
13	Shares (N Pty Ltd)	$24,000
14	ANZ bank account	$12,957
Total		$5,804,170
24	Superannuation – IOOF	$78,000
Total		$5,882,170
Less
19	Business loan ANZ	$1,660,000
20	Loan from Y Pty Ltd	$842,000
Total
NET TOTAL		$3,380,170

1. In addition to net assets of $716,383 Ms Bolt will have the other half interest in the E Town property ($607,500). The total sum is $1,323,883.

2. The adjustment results in a division of about 32 per cent/68 per cent in favour of the respondent Mr Waldo. The further cash payment of $50,000 to the Applicant, Ms Bolt, lifts the ratio to approximately one third/two thirds of the total asset pool in favour of the Respondent.

3. I am satisfied that the adjustment recognises the greater initial contribution of the Respondent, the very substantial contributions of the Applicant despite the relationship being a short one, and the future needs of the Applicant and the parties’ child for support and accommodation.

4. I am therefore satisfied that the outcome is just and equitable in the circumstances of the case.

I certify that the preceding one hundred and sixty six (166) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 7 June 2017.

Associate: 

Date:  7 June 2017