BOSWORTH & FIRKINS - [2012] FamCA 874

FAMILY COURT OF AUSTRALIA

BOSWORTH & FIRKINS

[2012] FamCA 874

FAMILY LAW - PROPERTY – Cross-vested proceedings – proceedings brought under the Domestic Relationships Act 1994 (ACT) – dispute about when the domestic relationship ended – whether proceedings should have been brought under the de facto financial provisions of the Family Law Act 1975 (Cth) – whether the applicant needs leave to commence proceedings out of time

FAMILY LAW - PROPERTY – Asset pool – whether money spent on legal fees should be added back – whether money was spent on reasonable living expenses – where parties were in a de facto relationship – what weight should be given to the initial contribution made by the respondent – dispute about contributions – whether mortgage repayments for a property acquired after separation constitute post-separation contributions – whether the respondent has higher earning capacity – whether adjustment should be made for discrepancies in superannuation entitlements – adjustments made pursuant to s 19(2)

Domestic Relationships Act 1994 (ACT), ss 3, 13, 15, 33
Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth), s 2, Sch 1 Part 2 ss 86 and 86A
Family Law Act 1975 (Cth), s 90RC

Beavan v Fallshaw (1992) 15 Fam LR 686
Bullivant & Holt [2012] FamCA 134
Chorn & Hopkins (2004) FLC 93-204
Dickons & Dickons [2012] FamCAFC 154
Hayes v Harrison [2002] ACTSC 22
Jones v Dunkel (1959) 101 CLR 298
Kowaliw & Kowaliw (1981) FLC 91-092
Marker v Marker [1998] FamCA 42
Omacini & Omacini (2005) FLC 93-218
Smith v Pearson [2011] NSWSC 600
Townsend v Townsend (1995) FLC 92-569

APPLICANT:

Mr Bosworth

RESPONDENT:

Ms Firkins

FILE NUMBER:

CAC

1468

2009

DATE DELIVERED:

19 October 2012

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Faulks DCJ

HEARING DATE:

31 July 2012 - 2 August 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms J Godtschalk

SOLICITOR FOR THE APPLICANT:

Phelps Reid Lawyers

COUNSEL FOR THE RESPONDENT:

Mr D Farrar

SOLICITOR FOR THE RESPONDENT:

Farrar Gesini & Dunn

Orders

The respondent, Ms Firkins, pay to the applicant, Mr Bosworth, the sum of $106,240 within 60 days of the date of these Orders.
Otherwise, each party is the sole owner of any property currently in their name or possession and each party is solely liable for any liability currently in his or her name, or secured over any item of property currently in his or her possession.
All material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.
Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it. Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1468 of 2009

Mr Bosworth

Applicant

And

Ms Firkins

Respondent

REASONS FOR JUDGMENT

Foreword

This dispute is about the division of property between two parties to a de facto relationship, Mr Bosworth (“the applicant”) and Ms Firkins (“the respondent”). These proceedings have had a somewhat vexed history and, in fact, even at the beginning of the current trial, which commenced on 31 July 2012, there was some suggestion the matter would abort yet again.
The applicant commenced proceedings in the Federal Magistrates Court on 8 September 2009 pursuant to its jurisdiction to make orders for the benefit of a party to a de facto relationship that has broken down.[1] Those proceedings, after some six adjournments, were finally dismissed by the Federal Magistrate. The precise circumstances in which the discharge of the proceedings occurred are not clear to me but they appear to relate, at least in part, to the contention that the matters ought properly to have been brought under the Domestic Relationships Act 1994 (ACT) and hence commenced either in the Supreme Court of the Australian Capital Territory or in this Court under the Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT) and Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth).
[1] Initiating Application filed on 8 September 2009 in the Federal Magistrates Court, 7.
After dismissal of the Federal Magistrates Court proceedings, the applicant commenced proceedings under the Domestic Relationships Act on 30 March 2010 when he filed an Originating Claim in the ACT Supreme Court. The matter languished in the Supreme Court until 21 March 2012 when the Master of the Supreme Court transferred the matter to the Family Court pursuant to provisions of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) and Jurisdiction of Courts (Cross-Vesting) Act 1993 (ACT).
The matter came before me for the first time on 14 May 2012 and directions were made to enable the matter to come forward for hearing on 31 July 2012.

Preliminary issues

Which legislation applies?

On the first day of final hearing of this matter, an issue arose as to whether these proceedings for property settlement should have been brought under the Domestic Relationships Act or under the Family Law Act 1975 (Cth). This issue arose because of the dispute about the date of the separation of the parties.
Each of the parties agreed that they were in a domestic relationship as defined in the Domestic Relationships Act[2] and the domestic relationship commenced in December 1993 when they started cohabiting.[3] However, there is disagreement about the date of separation. The respondent asserts the parties separated in December 2007 after an acrimonious incident between the parties.[4] There was, initially, some confusion about the date of separation asserted by the applicant. The applicant’s Statement of Claim says the parties’ domestic relationship ceased in February 2009[5], but his affidavit filed on 20 September 2010 asserts that the parties separated in April 2009 when he moved out of the relationship home.[6] On the first day of the hearing, counsel for the applicant confirmed that the applicant’s position is that the domestic relationship ceased in February 2009.
[2] Statement of Claim, 1; Defence and counterclaim, 1.
[3] Applicant’s affidavit, filed on 20 September 2010, [7]; Respondent’s affidavit, filed on 29 October 2010, [5].
[4] Respondent’s affidavit, filed on 29 October 2010, [5]. [17]-[25].
[5] Statement of Claim, [2].
[6] Applicant’s affidavit, filed on 20 September 2010, [8].
Counsel for the respondent directed me to s 90RC of the Family Law Act. That section provides:
(1)In this section:
de facto financial provisions mean the following provisions:
(a)this Part [Part VIIIAB, which is the section that relates to this Court’s power to adjust the property interests of parties after their de facto relationship has broken down];
(b)…
State and Territory laws do not apply to financial matters
(2)Parliament intends that the de facto financial provisions are to apply to the exclusion of any law of a State or Territory to the extent that the law:
(a)deals with financial matters relating to the parties to a de facto relationship arising out of the breakdown of those de facto relationships; and
(b)deals with those matters by referring expressly to de facto relationships (regardless of how the State or Territory law describes those relationships).
“Financial matters” in relation to the parties to a de facto relationship is defined as:
(i)the maintenance of one of the parties;
(ii)the distribution of the property of the parties or of either of them;
(iii)the distribution of any other financial resources of the parties or of either of them.
Section 90RC and Part VIIIAB of the Family Law Act commenced on 1 March 2009.[7] Part VIIIAB applies to de facto relationships that ended after 1 March 2009[8]. Parties whose relationship ended before 1 March 2009 can, however, choose to “opt in” to the new de facto regime under the Family Law Act.[9]
[7] Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth), s 2. I note that the Proclamation for the commencement of Part VIIIAB was not made until February 2012. However, that issue was rectified by the passing of the Family Law Amendment (Validation of Certain Orders and Other Measures) Act 2012 (Cth).
[8] Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth), Sch 1 Part 2 s 86.
[9] Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth), Sch 1 Part 2 s 86A.
The present proceedings have been brought by the applicant under the Domestic Relationships Act for an adjustment of the parties’ property interests following the break-down of their domestic relationship. That is a matter that would properly fall within the ambit of Part VIIIAB of the Family Law Act if the parties’ relationship ended after 1 March 2009. There is no evidence that the parties wanted to opt in to the new de facto regime under the Family Law Act.
The Domestic Relationships Act is a Territory law which deals with “financial matters” relating to the parties to a domestic relationships arising out of the breakdown of those domestic relationships.[10] It does not matter that the Domestic Relationships Act refers to “domestic relationships” rather than “de facto relationships”.[11]
[10] Domestic Relationships Act 1994 (ACT), Part 3.
[11] Family Law Act 1975 (Cth), s 90RC(2)(b).
Therefore, pursuant to s 90RC, if the parties’ relationship ended after 1 March 2009, the Domestic Relationships Act, being a Territory law, does not apply. Instead, Part VIIIAB of the Family Law Act would apply.
The respondent contends that the relationship ended in December 2007. The applicant says the relationship ended in February 2009 at the latest. Therefore, even though there is disagreement about the exact date of separation, it is agreed that the relationship ended prior to 1 March 2009. In these circumstances, the legislation that applies is the Domestic Relationships Act not the Family Law Act.

End of the domestic relationship

The question of when the domestic relationship ended is also relevant to the issue of whether or not leave is required for the applicant’s application to be made.
The situation as to the date on which the separation occurred was far from clear. The applicant’s position was that the domestic relationship ceased in February 2009 when the respondent applied for a Domestic Violence Order against the applicant.[12] The respondent contends that the relationship ceased in December 2007 while the parties were in Country B on a posting.
[12] Applicant’s affidavit, filed on 20 September 2010, [12].
The Domestic Relationships Act provides that an application for property adjustment orders must be brought within 2 years after the domestic relationship ended. However, the Court may grant leave for proceedings to commence out of time “if it is satisfied that greater hardship would be caused to the applicant if leave were refused than would be caused to the respondent if leave were granted.”[13] The Domestic Relationships Act proceedings were commenced in the ACT Supreme Court in March 2010. Thus, if the parties’ domestic relationship terminated prior to March 2008, then the question of leave would need to be considered.
[13] Domestic Relationships Act 1994 (ACT), s 13.
The definition of Domestic Relationship contained in s 3 of the Domestic Relationships Act is as follows:
"domestic relationship" means a personal relationship between 2 adults in which one provides personal or financial commitment and support of a domestic nature for the material benefit of the other and includes a domestic partnership but does not include a legal marriage.
The respondent gives the following evidence in support of her assertion that separation occurred in December 2007:[14]
17.On 2 December 2007, [the applicant] said to me words to the effect:
“As far as I am concerned, this relationship is over…” and “Fuck off you stupid cow.”
A short time later he said, “Don’t talk to me or come near me again. If you need to talk to me, send me an email or letter or leave a note on the fridge. If you have to travel for work, leave me the details.”
From that time I considered the relationship to be over.
18. After the conversation on 2 December 2007, [the applicant] said to me, “I don’t intend to hang around, I am going to travel. There are a number of courses I want to go to,”…
19. [The applicant’s] posting finished in late March 2008. I said to him at that time, “What are your intentions?” He responded, “I don’t intend to be separated from my children,”… [The applicant] stayed in [Country B]. He sought various short term postings, and to attend government financed courses, but none of that occurred. We had a full time Nanny and [the applicant] performed minimal parental functions and no household chores.
[14] Respondent’s affidavit, filed on 29 October 2010, [18]-[19].
The respondent considered that her relationship with the applicant ended in December 2007 for the following reasons: they no longer shared the same bed or had a sexual relationship; they did not socialise as a couple; did not make any joint plans for the future; they conveyed their separation to family, friends and colleagues; alleged the applicant frequently called her a “fucking cunt” and a “cow” and he was angry and aggressive towards the respondent after December 2007.[15]
[15] Respondent’s affidavit, filed on 29 October 2010, [20]-[24] and [30].
The parties, according to the respondent, separated but continued to live under the same roof until April 2009.
When separation allegedly occurred in December 2007 in Country B, the applicant was also employed in a posting and that posting was due to end in March 2008. The respondent thought that when his posting ended, the applicant would return to Australia or travel in the region.[16] However, the parties continued to live under the same roof. The respondent allegedly asked the applicant to move out, but he refused, saying “I am not leaving without the kids.”[17]
[16] Respondent’s affidavit, filed on 29 October 2010, [98].
[17] Respondent’s affidavit, filed on 29 October 2010, [99].
When the parties returned to Australia in November 2008, they lived together in a property at Suburb M. The respondent allegedly again asked the applicant to move out, but he refused.[18]
[18] Respondent’s affidavit, filed on 29 October 2010, [100].
The respondent returned to Australia for a brief period in August 2008, and she says that during that period she sought legal advice.[19] In January 2009, the respondent’s then solicitors wrote to the applicant’s then solicitors about property settlement.[20] The applicant concedes this occurred.[21] This evidence would indicate that, at least by January 2009, there was no romantic de facto relationship between the parties.
[19] Respondent’s affidavit, filed on 29 October 2010, [26].
[20] Respondent’s affidavit, filed on 29 October 2010, [28].
[21] Applicant’s affidavit, filed on 12 November 2010, [29].
The respondent alleges that between November 2008 to April 2009, when the parties lived in Suburb M, the respondent was abusive towards her. He allegedly said, in front of the children, “You can fuck off and die, you fucking cow. I am taking the kids and I’ll be living in… [the Suburb M property]. You children don’t need Mummy.”[22]
[22] Respondent’s affidavit, filed on 29 October 2010, [104].
On 19 February 2009, the respondent applied for a Domestic Violence Order against the applicant.[23] In April 2009, the respondent moved out of the Suburb M property.[24]
[23] Respondent’s affidavit, filed on 29 October 2010, [105].
[24] Respondent’s affidavit, filed on 29 October 2010, [107]-[110].
The applicant denies that separation occurred in December 2007 in Country B. He maintains that the parties lived together as a couple until February 2009 and he denies that the conversations described in [21] and [24] above took place.[25]
[25] Applicant’s affidavit, filed on 12 November 2010, [83] and [88].
It is reasonable to say that when the application for a DVO was made both parties had considered that the relationship was at an end, and the physical separation occurred shortly thereafter in April 2009. I am satisfied that at least by February 2009 the domestic relationship ceased. The period, therefore, that needs to be examined is that from December 2007 to February 2009. It may be that the parties’ romantic de facto relationship had ended by December 2007. But that does not mean that a domestic relationship did not continue until February 2009.

Personal relationship

During that period the parties continued to live in the same house (even though they did not occupy the same bed), and were involved together as parents of their children. It was not a commercial relationship, and while it may not have been as loving a relationship as it was when the parties first commenced cohabitation, in my opinion it was enough to satisfy the description of a personal relationship.

Financial commitment and support of material benefit

A domestic relationship must involve one party providing “personal or financial commitment and support of a domestic nature for the material benefit of the other”. It is noted that it is enough for one party to provide commitment and support, it is not necessary that both parties do so.
Despite her assertion that the parties separated in December 2007, the respondent continued to provide financial support to the applicant until February 2009.
The parties maintained separate bank accounts and separate finances while in Country B. The applicant asserts the parties shared the family expenses, while the respondent says she paid for the household expenses and the applicant “made no contributions to our ‘family finances’ [including the children’s expenses such as ballet and other extra-curricular activities] while we were in [Country B].” According to the respondent, the applicant’s purchases mostly included his books, CDs and computer equipment. The respondent alleges she paid the entirety of the cost of family holidays within Country B and also a holiday to Country C. The applicant denies this.[26]
[26] Respondent’s affidavit, filed on 29 October 2010, [92]-[94]; Applicant’s affidavit, filed on 12 November 2010, [76]-[78].
Both parties agree that the respondent purchased a car for the parties’ use in Country B and also paid for the petrol, registration, maintenance, insurance and taxes. It is also agreed that the respondent paid for a full-time nanny/cook/housekeeper in Country B. This lady completed the household shopping and, presumably, was involved in caring for the children.[27]
[27] Respondent’s affidavit, filed on 29 October 2010, [96] and [97]; Applicant’s affidavit, filed on 12 November 2010, [80] and [81].
The respondent states that between November 2008, when the parties returned to Australia, and April 2009, the applicant did not make any payments towards utility costs or expenses for the children, including their before and after school care. Although the respondent (allegedly) gave him an itemised list and invoices requesting 50 per cent contribution to the bills, the applicant “never paid.” While the respondent’s evidence is that the applicant “occasionally” purchased groceries for himself and the children, the applicant’s evidence is that he purchased the “vast majority” of groceries and food items for the “household”.[28]
[28] Respondent’s affidavit, filed on 29 October 2010, [103]; Applicant’s affidavit, filed on 12 November 2010, [87].

On either party’s evidence I am satisfied that there was financial “support”. This support, given the nature of what the payments were for, was clearly of a domestic nature. On the applicant’s evidence, this financial support was mutual, with both parties sharing the family expenses. On the respondent’s evidence, the financial support was more one-sided and came mainly from the respondent for the benefit of the applicant.
However, it is not enough that there was only financial support; the Domestic Relationships Act requires that there was financial support and commitment.
On the respondent’s evidence, even though the parties’ de facto relationship had terminated, she continued to provide financial support to the applicant by paying for household expenses including the children’s extra curricular activities, family holidays, and petrol for the car. That the respondent continued to provide such support to the applicant between December 2007 and February 2009 indicates that the support was of some duration and was regularly made, and hence was a display of financial commitment by the respondent to the applicant.
Such support and commitment by the respondent would no doubt have been of material benefit to the applicant. According to the respondent, the applicant only “occasionally” had to purchase groceries, did not have to contribute to utility costs or the children’s expenses, had the use of a car which he did not have to pay for, and also went on family holidays which were paid for by the respondent.
Even on the respondent’s evidence, I am satisfied that there was financial support and commitment by one party for the material benefit of the other.
On the applicant’s evidence, the relationship did not end until February 2009.
I find that between December 2007 and February 2009, there was a personal relationship where one party provided financial commitment and support of a domestic nature for the material benefit of the other, and therefore find that the domestic relationship between the parties terminated in February 2009 when the respondent sought an apprehended violence order against the applicant.

Leave

Section 13 of the Domestic Relationships Act sets a time limit for the making of applications after the end of a domestic relationship:
Time limit for making applications
(1) An application for an order under this part by a party to a domestic relationship that has ended shall not be made more than 2 years after the day on which the relationship ended.
(2) A court may grant leave to a person to apply for an order under this part after the end of the period referred to in subsection (1) if it is satisfied that greater hardship would be caused to the applicant if leave were refused than would be caused to the respondent if leave were granted.
The termination of the relationship in February 2009 means that the proceedings under the Domestic Relationships Act were instituted (in March 2010) well within the time-frame stipulated by s 13.
However, even if I had found that the domestic relationship ended in December 2007 and the applicant was late in bringing his application, I would grant leave for that application to be brought out of time for the reasons below.
It would appear from the plain terms of s 13 that an application for leave should be made before a substantive application in relation to property division might be filed. However, in the matter of Bullivant & Holt[29] I determined that such an application could be granted during the course of proceedings or after proceedings had been filed on a nunc pro tunc basis:
I am satisfied that I can grant such leave notwithstanding that the proceedings were commenced before such leave was granted. In this regard I accept the reasoning of Cavanough J in Booth v Ward, particularly at paragraph 60 ff. Although the legislation was at the time of the decision in Victoria not precisely the same as the Domestic Relationships Act, the relevant parts of the Victorian legislation were sufficiently similar to make his Honour’s reasons equally applicable to the ACT legislation and to my decision. With respect to his Honour, I adopt his reasons mutatis mutandis and find that leave can be granted nunc pro tunc. [footnotes omitted]
[29] [2012] FamCA 134, [134].
The initial position of the respondent was that the granting of leave is a matter within the discretion of the Court and not simply a matter of consent. Nevertheless, Counsel for the respondent acknowledged that if I were to find that separation occurred in December 2007, as his client contended, he would not oppose the granting of leave.
Counsel for the respondent helpfully referred me to a number of authorities in relation to this matter including the ones listed in the footnote[30] below. Counsel for the respondent submitted that the Court would have to hear the case to determine whether there would be a greater hardship caused to the applicant by refusing leave than would be caused to the respondent by granting leave. I do not accept, notwithstanding some suggestions to the contrary and the decisions quoted by Counsel for the respondent, that it was necessary for me to hear the proceedings and to determine, in effect, the merits of the case before deciding on the question of leave. It is sufficient that the applicant has an arguable case.
[30] Hayes v Harrison [2002] ACTSC 22; Beavan v Fallshaw (1992) 15 Fam LR 686; Smith v Pearson [2011] NSWSC 600 [a New South Wales decision not directly in point].
Counsel for the respondent pointed out that a finding that “greater hardship would be caused to the applicant if leave were refused than would be caused to the respondent if leave were granted” “is a mandatory but not, on its own, sufficient ground to grant leave under section 13.”[31]
[31] Defendant’s Case Outline Document, filed on 30 July 2012, [7].
In this case, I am satisfied that greater hardship would be caused to the applicant if leave were refused than would be caused to the respondent if leave were granted. If leave is granted, the respondent would suffer the hardship of going through yet another set of legal proceedings and would suffer the cost and the time that is necessarily associated with litigation. The respondent may have suffered hardship occasioned by the aborted proceedings and the costs associated therewith in the Federal Magistrates Court. The respondent may have also suffered hardship as a result of the regrettable delay between the commencement of the matter in the Supreme Court and the commencement of final hearing in this Court. On the other hand, if leave were refused the applicant would be unable to make any claim. The applicant is not able to make a claim under the Family Law Act for reasons discussed above and, if leave were refused, would be precluded from a possible remedy under the Domestic Relationships Act.
Other factors I would take into account in considering whether to grant leave are these.
If the relationship ended in December 2007 and proceedings under the Domestic Relationships Act were commenced in March 2010, the applicant would have been about three months out of time. This is not an unreasonable delay in instituting proceedings. Furthermore, the applicant had previously commenced proceedings in the Federal Magistrates Court on 8 September 2009 which is within the relevant time stipulated by the Domestic Relationships Act (though I note those proceedings were brought under the Family Law Act). Those proceedings were dismissed in May 2010. Prior to those proceedings being dismissed, the applicant had already commenced proceedings in the Supreme Court. The applicant had tried to seek a remedy from every possible avenue. I find that the three months’ delay in commencing proceedings in the Supreme Court was not a result of the applicant’s laziness or disregard for the time limit imposed by s 13. In my opinion, these factors would weigh in favour of my granting leave.
When new proceedings were commenced in the Supreme Court in March 2010, no objection was made by the respondent at that time that the proceedings were without jurisdiction because the application had been made out of time. It is clear that the respondent was aware of the nature of the case to be brought against her, at least in general terms, from 2009 when proceedings for property adjustment orders were filed in the Federal Magistrates Court.
While a finding that greater hardship would be caused to the applicant if leave were refused than would be caused to the respondent if leave were granted is a mandatory, but not necessarily a sufficient, ground to grant leave, the other factors which I have discussed above together with my finding about hardship would be sufficient grounds to justify the granting of leave.
Even if I had found that the relationship ended in December 2007, I would nevertheless have granted leave for the applicant’s application to be made out of time.
I note in passing that, at least at one point, the applicant appeared to be contending for the fact that the separation occurred in April 2009. The applicant resiled from that position during these proceedings. I am reasonably satisfied that April 2009 was when the physical separation between the parties occurred rather than the termination of the relationship in accordance with the definition as I have examined it above.

Orders sought

The contentions of the parties are fairly easily summarised. The applicant seeks that the assets of the parties be divided between them equally.[32] The respondent seeks that each of the parties should keep those assets in his or her own name.[33] The full text of their respective applications appear as annexures to these Reasons for Judgment.
[32] Statement of Claim, 5; Applicant’s aide memoir filed in Court on 2 August 2012, 2.
[33] Defence and Counterclaim, 6.
However, few things in this matter are ever clear-cut and even those relatively straight-forward contentions had nuances.
The respondent contended there had been an agreement between the parties, at or about the time their relationship commenced, that neither would make any claim on any property acquired by the other during the course of the relationship and that each would keep what he or she had if the relationship came to an end:[34]
[34] Respondent’s affidavit, filed on 29 October 2010, [38]-[40].
38. Around the time we started seeing each other romantically, [the applicant] and I had a conversation in which I said words to the effect,
“If we start living together, any property in my name I will keep and any property in your name you can keep, I don’t want to get married. We will keep separate finances and separate property and belongings.”
39. [The applicant] said:
“I agree”
…
“If we ever break up, I’ll be leaving with just my books, CDs, record collection, computer and couch, and any savings.”
The applicant denies that such a conversation ever occurred and no such agreement existed between the parties.[35] For the purposes of these proceedings, whether or not such conversations took place is irrelevant for the reasons articulated below.
[35] Applicant’s affidavit, filed on 12 November 2010, [35].
Section 33 of the Domestic Relationships Act governs the effect of agreements in proceedings for the adjustment of property interests. That section states that a court shall not make orders adjusting the property interests of parties that would be inconsistent with an agreement between the parties unless it is satisfied that:
(b)the agreement is in writing; and
(c)the agreement is signed by the party against whom it is sought to be enforced; and
(d)before the agreement was signed each party was given a certificate by a solicitor to the effect that the solicitor had advised the party, independently of the party, about –
(i)the effect of the agreement on the rights of the parties under [the Domestic Relationships Act]; and
(ii)the advantages and disadvantages for the party, at the time the advice was given, of making the agreement; and
(e)the certificates referred to in paragraph (d) are endorsed on or accompany the agreement.
There is no evidence that any of these factors have been satisfied. Hence the alleged agreement would not interfere with the operation of my determination as to the rights of the parties under Part 3 of the Domestic Relationships Act.

Brief history of the relationship

The parties spent much of their relationship overseas. The respondent worked in a government department and she was often posted overseas; the applicant accompanied her as her spouse on such postings.
The parties commenced living together in December 1993 when the applicant moved into the respondent’s home in Suburb N. From December 1993 until December 1994, the parties resided in Canberra.
In December 1994 the parties went on an overseas holiday before the respondent commenced an overseas posting in Country D with the applicant accompanying her as a de facto spouse. When the parties were overseas, the Suburb N property was rented out.
The parties lived in Country D from January 1995 until July 1996.
From July 1996 until August 1999 the parties lived in Country E, again because the respondent was posted there and the applicant was her accompanying spouse.
From August 1999 until January 2001, the parties lived in Canberra and their eldest child was born in March 2000. In October 2000 the Suburb N property was sold and the proceeds were used to help purchase the Suburb M property which was subsequently registered in the respondent’s sole name.
The parties then lived in Country F from January 2001 to July 2003. On this occasion, both parties were posted (rather than only the respondent being posted and the applicant accompanying her).
In July 2003 the parties returned to Canberra and stayed here until November 2005. During this period, the parties’ second child was born in September 2003.
In November 2005, the respondent was posted in Country B and the applicant accompanied her there. The applicant was able to obtain his own employment while in Country B. He obtained some employment during previous postings as well and this is discussed in greater detail later in these Reasons.
The parties returned to Canberra in November 2008 and lived in the Suburb M property.
The parties’ domestic relationship ended in February 2009 when the respondent applied for an AVO against the applicant. In April 2009, the respondent moved out of the Suburb M property and into a property at Suburb O which he purchased from his savings.

The asset pool

I set out in the table below the assets and liabilities of each of the parties and amounts which each party argues should be added back to the asset pool. Unless indicated as “disputed”, the values of the assets and liabilities and how they should be taken into account were agreed between the parties.

ASSETS
Asset	Ownership	Value
Suburb O property	A	$488,000
Suburb M property	R	$680,000
Honda vehicle	A	$12,000
Corolla vehicle	R	$5,550
LIABILITIES
Liability	Ownership	Value
Suburb O mortgage	A	$258,622
Suburb M mortgage	R	$95,500
Personal loan from sister (disputed)	R	$7,000
Personal loan from sister (disputed)	A	$10,000
Personal loan from friend (disputed)	A	$45,000
ADD BACKS
Add back (all disputed)	Ownership	Value
Paid legal fees	A	$38,588
Draw down from Suburb M mortgage	R	$95,500

Each of the parties also has some superannuation. The value of the respondent’s superannuation at the date of the hearing was $482,209[36] and the value of the applicant’s superannuation at the date of the hearing was $315,351.[37] These figures were the figures agreed by the parties as being able to be used by me in the proceedings. No superannuation splitting orders can be made in these proceedings as no such power to do so exists under the Domestic Relationships Act. Nevertheless, it is common ground that the superannuation entitlements were a factor to be taken into account under s 19(2) of the Domestic Relationships Act.

Liabilities

[36] Respondent’s written submissions, list of assets and liabilities, handed up on 2 August 2012.

[37] Respondent’s written submissions, list of assets and liabilities, handed up on 2 August 2012. The value of each party’s superannuation appeared to be agreed for indicative purposes.

Personal loan from the respondent’s sister

The respondent asserted she owes some $7,000.00 to her sister[38] which counsel for the respondent sought to be deducted from the value of the joint assets of the parties for the purposes of determining the division. Apart from the reference in the financial statement, no evidence was given about this matter and no explanation put forward as to why the debt incurred by the respondent should be divided evenly between her and the applicant. In the absence of such explanation or evidence I decline to take that loan into account except in the broad context of it being a liability of the respondent which I should consider under s 19(2) of the Domestic Relationships Act.
[38] Financial Statement, filed on 15 March 2012, item 53.

Personal loans from the applicant’s sister and his friend

The Suburb O property was purchased for $452,500. The applicant originally borrowed $360,000.00 for the purposes of purchasing Suburb O.[39] The balance of the purchase price, $92,500, came from the applicant’s savings[40] of about $104,658[41] which he took with him from the relationship.
[39] Applicant’s affidavit, filed on 20 September 2010, [18].
[40] Applicant’s affidavit, filed on 20 September 2010, [[18].
[41] Exhibit P1.
The mortgage had been reduced to $258,622 by the time of the hearing. The evidence was, and no contest really arose about it, that the mortgage had been reduced, in part, because of regular payments made by the applicant from his income. However, it was asserted by the applicant that reduction of the mortgage was also due in part to loans from his old college friend, Ms T, and his “sister” so referred to in the proceedings. The applicant allegedly borrowed $10,000 from his sister and $45,000 from Ms T. It was also agreed that the applicant paid legal fees by drawing down on the mortgage. This had the effect of increasing the value of the mortgage and decreasing the value of the property for the purposes of these proceedings. There appeared to be no dispute that the amount paid towards legal fees was $38,588.
The loans from the applicant’s sister and Ms T were, curiously, vaguely referred to in the evidence of the applicant. It appears, although it is not clear that it is the case, that there was no written agreement in either case, notwithstanding the amount advanced by Ms T was significant.
In relation to the loan from Ms T, no explanation was given about what appeared to be a loan from an old college friend which was, by any measure, offered on generous terms (including the fact that the loan did not have to be repaid until the parties’ eldest child attained the age of 18 years).
Neither the applicant’s sister nor Ms T filed an affidavit in these proceedings. No application was made to adduce any oral evidence either from them or from the applicant himself as evidence-in-chief explaining the terms of the loans and why they should be brought into account as a liability to be deducted from the joint assets for distribution.
It would be reasonable in the these circumstances to infer, in accordance with the principles enunciated in Jones v Dunkel[42], that the evidence given by either the sister or Ms T would not have been supportive of the evidence of the applicant. However, the evidence of the applicant was so vague, it is difficult to know in what way their evidence might have corroborated or supported his evidence in any event.
[42] (1959) 101 CLR 298.
In the end it does not matter very much. Either the applicant owes the amounts due or he does not. Whether he has to repay either loan or not, it is reasonable to accept that the sums of $45,000 and $10,000 were advanced to the applicant. The applicant paid those sums in reduction of the Suburb O mortgage. If he did not, then the value of Suburb O would be lower. Regardless of where the funds came from, such sums should properly be regarded as a contribution made post-separation by the applicant.

By taking the $55,000 into account as a post-separation contribution, I will not take the amount into account as a liability which should reduce the joint assets available for distribution. This appears to coincide with the submissions made by counsel for the applicant. She argued that either the loans should be taken into account as a liability or the applicant should be credited with additional contributions in relation to Suburb O.

Add-backs

The applicant appeared to contend, at least during the course of the proceedings, that because the Suburb O property in which he is currently living was acquired after separation and in his name alone, that it should be regarded as his property and the only amount that should be brought into account for division between the parties should be the sum of approximately $104,658 which he removed from his savings when the relationship ended. However, during final submissions, the applicant’s position was that the whole of the Suburb O property should be included in the asset pool for division. Indeed, the applicant’s written submissions filed in Court on 2 August 2012 include the entire value of the Suburb O property in the asset pool (subject to the mortgage over that property).[43]
[43] Outline of submissions on behalf of the de facto husband, filed in Court on 2 August 2012, 1.
The balance of the mortgages over each of the Suburb O and Suburb M properties were agreed at the time of hearing. However, each party asserts that the other has expended amounts which should be added back to the asset pool.
The term “add-back” in this context is intended to mean that certain property or money that existed at some point either during the relationship or immediately after it should be notionally ascribed to the pool of property for the purposes of division of the property.
A significant body of law has grown under the Family Law Act in relation to add-backs. I do not intend to traverse the long and much-travelled history of the law in this regard, but I note the following decisions.
In Townsend v Townsend Nicholson CJ as he then was said (and Fogarty and Jordan JJ agreed):[44]
In my view, what occurred in this case… was, in fact, a premature distribution of a proportion of the matrimonial assets. What the husband did was to distribute to himself an asset in which the wife had a legitimate interest. In such circumstances I consider that it would be unjust in the extreme to simply treat such conduct by the husband as a matter to which regard should be had under section 75(2). It seems to me that the husband has had the benefit of that money. … Accordingly, I am of the view that the correct way in which to deal with the husband’s receipt of those moneys is to bring them into the pool of assets on a notional basis and make a distribution accordingly. [my emphasis]
[44] Townsend v Townsend (1995) FLC 92-569, at 81,654.
In Omacini & Omacini, the Full Court held that there are “three clear categories of cases where the Court has determined it is appropriate to notionally add back to the pool of assets.” Two of those categories are where the parties have spent money on legal fees and where there has been a premature distribution of matrimonial assets.[45]
[45] Omacini & Omacini (2005) FLC 93-218, at [30]. I note my judgment in Mayne & Mayne [2011] FamCAFC 192 where I do not agree that money spent during the marriage and classified as “waste” under the principle in Kowaliw & Kowaliw (1981) FLC 91-092 should be added back to the asset pool.
In Chorn v Hopkins the Full Court clarified when legal fees could be added back to the asset pool:[46]
55.…where the payment of legal costs can be regarded as a premature distribution of funds (in which both parties have an interest), it is appropriate to add back those costs as a notional asset. …where funds have been borrowed to pay legal fees, and such liability is still outstanding, neither the payment of the fees nor the liability should be taken into account. …where it is determined that a payment of legal fees should be taken into account as a notional asset, any outstanding liability in respect of those fees should also be taken into account.
56.… while the treatment of funds used to pay legal costs remains ultimately a matter for the discretion of the trial Judge, in determining how to exercise that discretion, regard should be had to the source of the funds.
57.If the funds existed at separation, and are such that both parties can be seen as having an interest in them (on account, for example, of contributions), then such funds should be added back as a notional asset of the party, who has had the benefit of them.
58.If the funds used to pay legal fees have been generated by a party post-separation from his or her own endeavours or received in his or her own right (for example, by way of gift or inheritance), they would generally not be added back as a notional asset; nor would any borrowing undertaken by a party post-separation to pay legal fees be taken into account as a liability in the calculation of the net property of the parties. …
[46] Chorn v Hopkins (2004) FLC 93-204, at [55]-[58].
While money resulting from a premature distribution of assets and expenditure on legal fees (subject to what was said in Chorn & Hopkins) may be added back, it has been established that money spent on reasonable living expenses are not to be added back:[47]
2.11There seems to be no appropriate basis for notionally adding back moneys that existed at separation but which have been subsequently spent on meeting reasonably incurred necessary living expenses. Neither the Family Law Act nor the case law require that parties go into a state of suspended economic animation once their marriage breaks down pending the resolution of their financial arrangements. Parties are entitled to continue to provide for their own support. Whether any expenditure so incurred is reasonable or extravagant is a matter that can be determined by the trial Judge.
[47] Marker v Marker [1998] Fam CA 42, at [2.11].
In Omacini the Full Court determined that to justify an add-back, it is necessary for the judge to make some assessment about the reasonableness of the expenditure.[48] The point was that money spent on reasonable living expenses should not be added back.
[48] Omacini & Omacini (2005) FLC 93-218, [39].
If assets existed at the time of the separation of the parties and one party or the other appropriates some part, or the whole, of those assets for his or her benefit then such an action may destroy the efficacy of any proceedings to divide the property of the parties. The Domestic Relationships Act states that a court may make an order adjusting the interests in the property of either or both of the parties that “seems just and equitable”.[49] It would seem to be unjust to allow one party by his or her unilateral act to remove either the whole or some part of the property from being available for distribution, subject to the legal principles enunciated above.
[49] Domestic Relationships Act 1994 (ACT), s 15(1).
Whether or not a sum should be added back to the pool is properly a matter for a determination on the facts in each case and on the evidence available in relation to the facts as asserted in each case.

Respondent’s draw-down of the Suburb M mortgage

The money that the respondent borrowed had the effect of diminishing the value of the Suburb M property, an asset which is the subject of distribution, because the line of credit is secured by way of mortgage on the Suburb M property. There is no argument from the respondent that this borrowed money was in part expended in relation to legal costs and the balance of money was expended for reasonable living expenses including paying the children’s school fees. However her evidence in relation to these matters was unsatisfactory.[50]
[50] Proceedings, 1 August 2012, approximately 3:52pm to 4:10pm. .
It is perhaps an unreasonable counsel of excellence to require a witness to be clear and explicit about items of expenditure that had happened some years ago. This is particularly so in the strained and difficult circumstances of a hearing and when the witness is being cross-examined. Nevertheless, the respondent’s evidence left me with some confusion as to whether school fees and other expenses which she made reference to had been paid from money that was withdrawn in accordance with the line of credit or from her ordinary earnings. It is not the case that there is some particular onus on a person asserting reasonable living expenses to prove those expenses with precision. It is enough that they be broadly but believably so identified. In this matter I am not satisfied that has occurred in relation to the respondent’s evidence about the amounts drawn down from the Suburb M mortgage.
At separation, the balance of the Suburb M mortgage was nil. The respondent subsequently made redraws from the Suburb M mortgage so that the balance of the Suburb M mortgage at the time of final hearing was $95,500. The respondent’s oral evidence during cross-examination was that of the $95,500, at least $57,000 was applied towards legal fees. The respondent also said that she expected to pay another $18,000 to $20,000 for fees relating to this trial. This means that at least $75,000 had been drawn down by the respondent from the Suburb M property to pay for legal fees. There is therefore $20,000 of expenditure that remains unexplained. The respondent says that she used a portion of the $95,500 to pay for things such as the children’s school fees, orthodontic fees, and to pay off her David Jones credit card, which she used to purchase furniture (and possibly other things) when she re-established a residence in Australia. However, there is no evidence about the amounts she might have spent on those expenses, not even approximate amounts. This, in combination with the respondent’s evidence about legal fees, makes it impossible for me to determine what portion of the $95,500 was spent on reasonable living expenses.
In these circumstances, it seems reasonable to me that I should allow the $95,500 to be added back in full to the asset pool. Not to do so would mean that funds relating to the Suburb M property, a property properly available for distribution, had been distributed prematurely and not necessarily for reasonable living expenses.

Applicant’s payment of legal fees

Consistent with the principles applied in relation to the respondent, the money expended by the applicant from the Suburb O mortgage advance of some $38,588 on legal fees should be added back because otherwise the value of that property would be diminished unfairly.

The property pool for division

Taking all of the above factors into account then the property pool would be as follows:

ASSETS
Asset	Ownership	Value
Suburb O property	A	$488,000
Suburb M property	R	$680,000
Honda vehicle	A	$12,000
Corolla vehicle	R	$5,550
Total Assets		$1,185,550
LIABILITIES
Liability	Ownership	Value
Suburb O mortgage	A	$258,622
Suburb M mortgage	R	$95,500
Total liabilities		$354,122
ADD-BACKS
Add-back	Ownership	Value
Paid legal fees	A	$38,588
Draw down from Suburb M mortgage	R	$95,500
Total add-backs		$134,088
TOTAL NET ASSETS		$965,516

Contributions

Section 15 of the Domestic Relationships Act provides:
(1)On application by a party to a domestic relationship, a court may make an order adjusting the interests in the property of either or both of the parties that seems just and equitable to it having regard to—
(a) the nature and duration of the relationship; and
(b)the financial or non-financial contributions made directly or indirectly by or on behalf of either or both of the parties to the acquisition, conservation or improvement of any of the property or financial resources of either or both of them; and
(c)the contributions (including any in the capacity of homemaker or parent) made by either of the parties to the welfare of the other or any child of the parties; and
(d)the matters referred to in section 19 (2), as far as they are relevant; and
(e)such other matters (if any) as the court considers relevant.
…

Nature and duration of the relationship

These provisions contrast with those under s 79(4) of the Family Law Act to the extent that they refer to “the nature and duration of the relationship”. Such qualification is appropriate under the terms of the Domestic Relationships Act bearing in mind the large number and type of relationships which may fall under that Act. For example, the nature of the relationship between a carer and another person may qualify as a domestic relationship in accordance with the terms of the Domestic Relationships Act but this may be different from a relationship such as existed, for example, in this case where the parties were living, in effect, as husband and wife for a relatively long period.
It was in this area that counsel for the respondent sought to suggest that the asserted “agreement” between the parties about keeping their assets, liabilities and income, in effect, separate from each other reflected on the nature of the relationship. Further, it was suggested by counsel for the respondent that the agreement should be regarded as one in which the parties had agreed, even if not within the formal terms of s 15, as determining these issues between the parties. I have already indicated at [59]-[60] above that I will not regard, nor do I consider the legislation allows me to regard, any agreement of the sort suggested by counsel for the respondent to be in some way binding on this Court as to the decisions it might make.
I do not regard the purported oral agreement as in some way affecting the nature of the relationship such as to cause a division of property based almost exclusively on legal title holding. Some domestic relationships are categorised by the parties not even living in the same dwelling (for example, see Bullivant & Holt[51]). But this was not one of those sorts of relationships. For all practical purposes the parties were living together as man and wife. If there were any doubt about that proposition, the evidence that was extracted from the respondent in cross-examination about the statutory declarations she and the applicant provided to the government department prior to one of their overseas postings makes it clear that, unless the parties were making false declarations, they regarded their relationship as one which was akin to marriage.[52]
[51] [2012] FamCA 134.
[52] See for example, Exhibit p5.
I accept that those statutory declarations were made in 1994 and the nature of the parties’ relationship may have changed since that time. However, as detailed above and also below, the respondent was frequently posted overseas for work and the applicant nearly always went with the respondent as her “accompanying spouse”. This evidence supports the proposition that the parties’ relationship was one akin to marriage at least until December 2007. (However, a domestic relationship continued until February 2009).
I accept they chose to keep their finances separate, however, I do not accept that this arrangement in any way diminishes the nature of the parties’ relationship as de facto husband and wife.

Financial and non-financial contributions to property and Contributions to the welfare of the other party and to the children

Initial contributions

It is agreed that there were very few initial contributions from the applicant.[53] The respondent had a house in Suburb N. The equity in the Suburb N home at the commencement of the parties’ relationship is disputed. The applicant says there was $20,000 equity (about 15 per cent equity, assuming the value of the property at the time of cohabitation was $135,000 as the respondent asserts)[54], while the respondent says there was $41,000 equity (about 30 per cent equity). This property was sold some seven years into the relationship for $157,500[55] and that then became the basis for the purchase of the Suburb M property. I do not accept that the value of the initial contribution on behalf of the respondent was $157,500. Rather, that represents the price for which the property was sold at some point during the relationship. My reasons for coming to this conclusion are set out below and take account of the reasoning of the Full Court in Dickons & Dickons.[56]
17. …it is self-evident that financial contributions (whether direct or indirect) can be made to a relationship that have an effect on the property of the parties without those financial contributions finding their way directly into, or being directly linked to, specific property or, indeed, directly to the totality of the property available for distribution at the time of trial. Financial contributions can be made to the “…acquisition, conservation or improvement…” of property “…directly or indirectly…” (s 79(4)(a). Emphasis added). A financial contribution can be made indirectly by, for example, the use by parties of income or assets for purpose A freeing up the use of other income or assets for purpose B. …
18. Any and all such contributions, whether or not they sound in, or are directly linked to, the property available for distribution, should be considered and assessed together with the nature, form and extent of all other contributions of all types contemplated otherwise by s 79(4).
19. …
20. …the s 79 discretion involves as a necessary requirement that “…trial Judges weigh and assess the contributions of all kinds and from all sources made by each of the parties throughout the period of their cohabitation and then translate such an assessment into a percentage of the overall property of the parties or provide for a transfer of property in specie in accordance with that assessment.” (In the Marriage of Aleksovski (1996) FLC 92-705 at 83,437). …
21. Those same principles can be expressed as saying that the requirements of the section are met by approaching the assessment of contributions holistically and by analysing the nature, form, characteristics and origin of the property currently comprising that to which s 79 applies, and, in turn, analysing the nature, form and extent of the contributions (of all types) contemplated by s 79. …
22. The analysis just referred to might, obviously enough, also involve an examination of when contributions were made and the use made of contributions. But that is quite different to attributing to, or searching for, a necessary causal connection between contributions and the available property as a requirement for a particular contribution having significance in the overall assessment of what is just and equitable.
[53] Applicant’s affidavit, filed on 20 September 2010, [13].
[54] Applicant’s affidavit, filed on 20 September 2010, [13]; Respondent’s affidavit, [36(a)].
[55] Exhibit D5.
[56] [2012] FamCAFC 154.
Although Dickons concerns s 79(4)(a) the Family Law Act rather than s 15(1)(b) of the Domestic Relationships Act, the wording and sentiment of those two sections is sufficiently similar that the reasoning of the Full Court set out above can be applied when considering contributions under the Domestic Relationships Act.
From December 1993 (when the parties commenced a relationship) to October 2000 (when the Suburb N property was sold), the parties were, in fact, overseas together for about four years and eight months, during which time the property was rented, and the respondent’s contribution to the property accordingly less significant.[57]
[57] Applicant’s affidavit, filed on 20 September 2010, [37] and [38].
Assets vary in value over a long relationship and it is, in my opinion, artificial to go back to those past values and inflate them retrospectively by CPI adjustments or something of the sort. I am not suggesting in this case that the figure for which the property was sold was some artificial figure. It was a real figure. What is the case, however, is that the initial contribution of the Suburb N property was made in 1993 and other factors have since then intervened. For, example, both parties have made non-financial contributions to conservation and improvement of the Suburb N property, although the extent to which the applicant contributed is in dispute.[58] It is not appropriate to take $157,500 as a numerator and $965,516 (the property pool as determined above) as a denominator and thereby ascribe a particular percentage contribution to the respondent.
[58] Applicant’s affidavit, filed on 20 September 2010, [41]; Respondent’s affidavit, [71].

At the same time, it is entirely reasonable to regard the introduction by the respondent of this property at the commencement of the relationship as being an important foundation for whatever wealth the parties had either individually or collectively accumulated subsequently. Without it, the subsequent purchase in Suburb M and, ultimately, the purchase of Suburb O might not have been capable of being accomplished. The initial contribution by the respondent therefore has to be given significant weight.

Contributions during the relationship

Canberra – December 1993 to December 1994

This period is fairly uncontroversial. The parties lived together in the Suburb N home owned by the respondent and kept their finances separate.

Country D – January 1995 to July 1996

The parties were first away together from January 1995 until July 1996 in Country D. The respondent was posted there by a government department and the applicant accompanied her. The respondent was, obviously, paid an income while working overseas and she also received an accompanying spouse allowance because the applicant was with her. The respondent gave this allowance to the applicant “for his personal spending”.[59]
[59] Applicant’s affidavit, filed on 20 September 2010, [21]; Respondent’s affidavit, [52] and [57].
The parties maintained separate finances while in Country D as they did for the rest of their relationship.[60] The respondent paid for the parties’ living expenses and she purchased a car and motorbike for the parties’ use and paid for the maintenance, petrol and insurance of both vehicles.[61] The applicant, as the respondent points out, made “no significant earnings” during this period. I accept that he did not. The applicant himself states that he earned about $10,000 through casual employment during the 18 months they resided in Country D. However, I also accept that it may have been difficult for the applicant to obtain paid employment in Country D when he did not speak the language.[62]
[60] Respondent’s affidavit, [54].
[61] Respondent’s affidavit, [56].
[62] Applicant’s affidavit, filed on 20 September 2010, [21].
While the applicant stated that he applied his income to family finances, the respondent asserts that the applicant used his income to “pursue travel and other interests”.[63]
[63] Respondent’s affidavit, [53].
While in Country D the parties had a part-time housekeeper who did all of the housework and also attended to some shopping.[64] I accept the housekeeper attended to cleaning, laundry and the like, but I also accept the applicant’s evidence that he attended to grocery shopping and preparation of meals.[65]
[64] Respondent’s affidavit, [55].
[65] Applicant’s affidavit, filed on 12 November 2010, [48].
There is no dispute that the respondent earned more money than the applicant in this period and that she applied her income to paying for joint expenses and the housekeeper. However, although the applicant was not earning significant income, he attended to household duties such as cooking and shopping and sometimes taking the respondent to the train station where she commuted to work. This was the division of tasks between them.
In summary, although during this period the respondent in most categories contributed more than the applicant, in my opinion the significance of this disparity is affected by the fact that the applicant (by agreement) accompanied the respondent to his own financial detriment. Thus his decreased ability to contribute financially was known to the parties in advance and was part of the “deal” between them.

Country E – July 1996 to August 1999

The applicant returned to Australia from this posting in July 1999 and the respondent returned in August 1999.
The respondent was again the engaged person on the overseas posting and the applicant was an accompanying spouse. The respondent received a spouse allowance in respect of that.
The applicant was able to obtain 12 months’ employment working in a government position and earned $27,000. There is, again, a dispute about how the applicant applied his income. The applicant concedes that he used some of his income to travel to Country G, to Country H for medical treatment and to Australia for recuperation after surgery. However, he denies that all of his earnings were used for travel expenses, some is asserted to have been used for joint expenses.[66]
[66]Applicant’s affidavit, filed on 20 September 2010, [22]; Applicant’s affidavit, filed on 12 November 2010, [51]-[58]; Respondent’s affidavit, [58]-[64].
The situation in Country E was similar to that in Country D. The respondent paid for a live-in housekeeper (though the applicant contends they only had a housekeeper for the latter half of their time in Country E), purchased a car and paid for maintenance, insurance, registration, petrol and taxes on that car.[67]
[67] Respondent’s affidavit, [63].
During this period, I find that the contributions made by the respondent were greater than those made by the appellant. However, the significance of the discrepancy is diminished by the “working arrangement” between the parties referred to above.

Canberra – August 1999 to January 2001

In Canberra, both parties returned to work in the Public Service.[68]
[68] Applicant’s affidavit, filed on 20 September 2010, [23]; Respondent’s affidavit, [65].
When the parties’ eldest child was born in March 2000, the respondent took paid maternity leave and then resumed full-time work in October 2000.[69]
[69] Respondent’s affidavit, [67].
The applicant contributed to household expenses including groceries and utilities, however he made no direct contribution to the mortgage.[70]
[70] Applicant’s affidavit, filed on 12 November 2010, [61]; Respondent’s affidavit, [68].
The Suburb N property was sold in 2000 and prior to its sale renovations and improvements were undertaken. There is dispute about who paid for what and who did what in relation to this work.
With respect to payment for the improvements, the applicant contends that he contributed $1,000 for bathroom renovations, and he paid for the servicing of the respondent’s lawn-mower and later bought a new lawn-mower. This is disputed by the respondent.[71] I am not able to make a finding about this, but in my view, these financial contributions are not significant in the context of a relationship of some 15 years.
[71] Applicant’s affidavit, filed on 12 November 2010, [62] and [63]; Respondent’s affidavit, [69] and [70].
I am also not able to make a precise finding as to the allocation of tasks, e.g. who mowed the lawn more, however, I am satisfied that each of the parties made some non-financial contribution in this regard. The applicant manually removed carpet from some rooms in the Suburb N property, including removing the carpet tacks. Each of the parties did gardening work which, collectively, included mowing the lawn, removing ivy and large rocks, and planting new garden beds.[72]
[72] Applicant’s affidavit, filed on 12 November 2010, [63]; Respondent’s affidavit, [71].

Country F – January 2001 to July 2003

The parties were both posted for work in Country F. Each party earned a salary and the respondent also received allowance, which was an allowance calculated on both parties’ salary and was a “bonus” paid to officers in respect of a joint posting.[73]
[73] Applicant’s affidavit, filed on 20 September 2010, [24];
From July 2001 until June 2003, the applicant transferred $900 each fortnight to the respondent. The respondent alleges this was the applicant’s contributiono for “joint living expenses”, but the applicant denies that is what the $900 was for. The respondent may have used it for joint living expenses (including paying for the parties’ live-in nanny and other household staff) or towards payment of the mortgage over the Suburb M property. Whatever it was used for, the $900 per fortnight was a financial contribution made by the applicant during this period.[74] If the money was used to pay for household expenses, this freed up the respondent’s income to pay the mortgage or other things.
[74] Respondent’s affidavit, [74], [75] and [81]; Applicant’s affidavit, filed on 12 November 2010, [66]-[68].
It is agreed that the respondent again paid for a car and the associated expenses.[75]
[75] Respondent’s affidavit, [80].

Canberra – July 2003 to November 2005

Upon the parties’ return to Canberra in July 2003, the respondent did not return to work and went straight on maternity leave as the parties’ younger child was due to be born in September 2003. After their child’s birth, the respondent returned to work in April 2004.[76]
[76] Respondent’s affidavit, [82]-[84].
The parties both agree the applicant contributed towards household expenses, including buying groceries, paying utility bills and other miscellaneous expenses. I accept the applicant made some financial contributions towards childcare and other activities undertaken by the children, including Sport A[77], though such contributions may not have been as significant as those made by the respondent.
[77] Respondent’s affidavit, [85] and Applicant’s affidavit, filed on 12 November 2010, [74].

Country B – November 2005 to November 2008

The respondent was again posted overseas during this period and the applicant accompanied her.
While in Country B, the applicant also obtained a job and was employed from January 2006 to March 2008.[78] Some of the applicant’s income was paid into a bank account held with a Country B bank.[79] While the applicant says that he used this income to pay for family expenses, the respondent alleges that the money from that account was used to pay for the applicant’s own items such as books, CDs and computer equipment and he made no contributions to family expenses. The respondent says she paid for all of the household expenses from her income and also paid for the children’s expenses including extra-curricular expenses.[80] While I respect that the applicant may have expended funds for his own purposes, financial contributions during this period might, and I find, were similar to that referred to above at [117] and [122].
[78] Applicant’s affidavit, filed on 12 November 2012, [26].
[79] Respondent’s affidavit, [93].
[80] Applicant’s affidavit, filed 12 November 2010, [77]; Respondent’s affidavit, [93] and [94].
It is conceded that the respondent paid most of the costs associated with the parties’ car in Country B including the purchase price.[81]
[81] Applicant’s affidavit, filed 12 November 2010, [80].
The respondent paid for a full-time nanny/cook/housekeeper in Country B who, among other things, attended to the household shopping.[82] I infer from this that the number of tasks which the applicant attended to was diminished.
[82] Respondent’s affidavit, [97]; Applicant’s affidavit, filed on 12 November 2010, [81].
The applicant asserts that the parties:[83]
contributed equally to the care and welfare of the children, except at the conclusion of the most recent posting to [Country B] in 2008. From March 2008 I was not working and was at home and took on the role as primary parent. I attended to the children’s needs and care when they were not at school and [the respondent] was at work.
[83] Applicant’s affidavit, filed on 20 September 2010, [44].
This was denied by the respondent:[84]
Even when [the applicant] was not working and I was working, the children had a Nanny. I recall numerous occasions when the nanny telephoned me and asked a question about the children, for example, “The girls have been invited on a play date, is it okay if they go?”… [The applicant] spent most of his time reading books, or on the computer. I say he made very little contribution to the care and welfare of the children.
[84] Respondent’s affidavit, [169].
I do not accept that the contributions made by the applicant during overseas postings in particular were to be treated as inferior homemaking and parenting contributions. For the reasons I have set out above, I am satisfied that there was an implicit, if not an explicit, deal between the parties about who was to be what and what postings were to be undertaken for the furtherance of the career of the respondent. There is no evidence that during the course of the relationship the respondent complained about the nature and quality of the contributions made by the respondent. It is, of course, possible that she did so complain but she gave no evidence about it.
Taking into account all of the factors discussed above, the contributions made by the parties during the course of their relationship (reserving the issue of the initial contribution of the respondent) should be regarded as having been made 55 per cent by the respondent and 45 per cent by the applicant for the following reasons:
a)The respondent was the primary income earner during the parties’ time overseas. However, there were periods when the applicant was employed as well. For most of the parties’ time overseas, the applicant did not earn significant amounts. But during the parties’ time in Country F, the applicant was also an engaged person and transferred $900 a week to the respondent (whether for payment of the mortgage or household expenses is irrelevant). The applicant was also employed in Country B but his income was not used to pay for household expenses. Instead, his income was paid into an Australian account which he was not able to access while in Country B. During postings in Country D and Country E, the applicant earned some income from casual employment and used at least some of this income for his own purposes.
b)The applicant attended to household chores such as cooking and cleaning, and looked after the children when the parties did not have a housekeeper/cook/nanny. However, the respondent also attended to these tasks as well as working full-time.
c)The respondent paid the mortgage and contributed to household expenses as well.
The Domestic Relationships Act 1994 does not require that a judge should necessarily make a determination based on percentages or to provide a running commentary about the adjustment of such percentages by reference to different factors under the Act. Nevertheless, in the interests of transparency, I attribute percentage–based contributions to each party.
Before taking into account the initial contribution by the respondent, I regard the contributions of the parties during the relationship to have been 55/45 in favour of the respondent. Taking into account the initial contribution by the respondent, however, I regard the overall contributions by the parties to be 65 per cent by the respondent and 35 per cent by the applicant.

Post separation contributions

The respondent has continued to live in the Suburb M property. Until this was recently encumbered with a line of credit to which reference has been made above, this was essentially rent-free accommodation for the respondent. In contrast, the applicant took $104,658 from his savings (which must be regarded as being contributed in the proportions of 65/35 in favour of the respondent), and acquired the Suburb O property but thereafter had to meet the payments on the mortgage.
Hypothetically, and I acknowledge this was never considered by either of the parties, if the Suburb M property had been rented and the rent then divided equally between the parties or in some other proportions then each of them would have to have found different accommodation and paid accommodation costs either as rent or as mortgage repayments. This indicates that there was certainly an advantage to the respondent in continuing to occupy property that should be divided for the purposes of these proceedings for some time, without her having to make any mortgage payments (until recently). On that basis it is reasonable to say that the applicant made a greater contribution to the Suburb O property post-separation, not only in the mortgage repayments that have been made to reduce the loan encumbering the property, but also as suggested above by his applying money he had acquired from his “sister” and from Ms T.
The parties equally share the care of the children and, since April 2009, have each paid for the children’s general expenses when they are in that party’s care.[85] However, the respondent has paid for the children’s dance classes[86] and private school fees.
[85] Applicant’s affidavit, filed on 20 September 2010, [46]; Respondent’s affidavit, [172].
[86] Respondent’s affidavit, [172].
It is clear in this matter that the applicant acquiesces in his children attending a private school. That is not necessarily the same as it being a joint decision to which he is now refusing to contribute. It is obvious that if one parent wants to spend a certain amount of money on a child it will depend on the nature of the expenditure as to whether it is part of the ordinary expenditure for that child. For example, if one parent wished to take a child to Disneyland and the other parent did not agree, it would seem to be unreasonable to allocate that expenditure in equal proportions to both parents. In this matter I have no evidence that is satisfactory about whether the attendance at a private school is a joint enterprise or whether it represents the unilateral decision by the respondent to send the child to that school and absent such evidence, I am not prepared to infer that the applicant’s failure to contribute represents a default in his parental obligations, nor is it a factor which should properly be taken into account in considering post-separation contributions.
Taking into account the applicant’s post-separation contributions by way of mortgage repayments to the Suburb O property, in my opinion, the contributions made by the respondent should be regarded overall as 63 per cent and those of the applicant as 37 per cent.

Section 19(2) factors

Income, property and financial resources

The Suburb M property is registered in the respondent’s name and has a small mortgage of $95,500. The Suburb O property is registered in the applicant’s name and has a mortgage of $258,622. The respondent has superannuation of $482,209 and the applicant has superannuation of $311,906. Other than these items, neither property has any significant assets or financial resources.
There is no doubt that the respondent has more superannuation than the applicant. The discrepancy between the parties’ superannuation amounts might suggest that if there is to be an adjustment under s 19(2) it should be an adjustment in favour to the applicant. This however is not an adjustment capable of a mathematically precise determination. The “values” agreed by the parties are not calculated actuarily or in accordance with the Family Law (Superannuation) Regulations 2001. In addition, each of the parties may have made some pre-relationship contributions to their superannuation which might or might not affect a mathematical determination about the value of the superannuation adjustment. The difference, however, is enough to cause me to make an adjustment in favour of the applicant.

Physical and mental capacity of each party for appropriate gainful employment

The applicant is currently employed in a middle management position by a government department as is the respondent who is one level higher. Counsel for the applicant argued that the respondent had a greater earning capacity than the applicant but this earning capacity was not reflected in her current income because of her reduced hours. It is very difficult in the context of this matter to find unequivocally that either the applicant or the respondent has a higher earning capacity. The applicant may apply for a position at the respondent’s level and be successful. Each still has a number of years during which he or she might work and the vagaries and exigencies which will bear upon their advances are factors not capable of being satisfactorily determined at this point.
It may be argued that there should be an adjustment in this regard in favour of the applicant on the basis that the applicant was not able to work for some periods when accompanying the respondent overseas and so gave up various career opportunities. I do not accept that argument. The applicant did work for some periods, worked full-time while in Canberra and he is now employed in a middle management position in a government department. There is no evidence to suggest that the applicant’s capacity for gainful employment has been affected by the relationship.

I do not see that this factor is properly a matter for any adjustment between the parties in either direction pursuant to s 19(2).

Financial needs and obligations of each party

The mortgages secured over the Suburb M and Suburb O properties are set out above. The mortgage borne by the applicant is greater than that borne by the respondent.
There are no other financial obligations owed by either party, noting that the loans owed by the applicant to his sister and Ms T were actually taken into account as a post-contribution by him to the Suburb O property and so should not be taken into account again here.

Responsibilities to support any other person

Other factors which might properly be taken into account in some cases include the fact that one party may have the predominant care of a child or children of the relationship. In this case the parties have agreed that the care of their children will be shared between them equally. This is not a factor which would result in an adjustment under s 19(2).
No other s 19(2) factors are applicable.
The only matters considered which would give rise to an adjustment being made are the applicant’s mortgage which is greater than that borne by the respondent and the discrepancy in their respective superannuation entitlements. There should therefore be an adjustment in favour of the applicant of three per cent (or a differential of six per cent) which means that the pool of property should be divided between the parties on the basis that the respondent retains 60 per cent and the applicant has 40 per cent.

Just and Equitable Orders

The total property pool is $965,516. The applicant should receive property totalling $386,206 (= 0.40*965,516; rounding to the nearest dollar).
The applicant currently owns the Suburb O property and the value is $229,378 (= 488,000-258,622). The applicant also owns a Honda vehicle worth $12,000. Taking into account the add-back for legal fees of $38,588, the applicant has property worth $279,966. This means the respondent needs to make a cash payment to the applicant of $106,240 (=386,206-279,966).
If the respondent makes this payment by drawing down on the mortgage over the Suburb M property, then the respondent’s mortgage balance will be $201,740 (=95,500+106,240) or about 30 per cent of the value of the Suburb M property. As a comparative measure, if the applicant uses his cash payment to reduce his mortgage over the Suburb O property, his mortgage balance would be $152,382 (=258,622-106,240) or about 31 per cent of the value of the Suburb M property.
Taking into account each party’s contributions as discussed above, their respective earning capacity, superannuation entitlements and care of the children, I am satisfied that the orders set out at the start of this judgment are just and equitable.

I certify that the preceding one hundred and sixty-two (162) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 19 October 2012.

Legal Associate:

Date: 19 October 2012

Annexure 1

Orders sought by the applicant

AND the Plaintiff claims the following relief:
18. That the Plaintiff and Defendant do such things and sign such documents as are necessary to divide equally between them their net domestic relationship assets including real estate, jewellery, contents, motor vehicles, savings and superannuation entitlements.
AND the Plaintiff claims damages as particularised above and general damages and interest pursuant to Rule 1616 of the Court Procedure Rules 2006 and costs.

Orders sought by the respondent

The Defendant seeks the following relief:
1.The Plaintiff’s claim be dismissed.
2.That the Plaintiff and Defendant be, as against the other, declared to be:
2.1 The sole owner of any property currently in their name or possession;
2.2 Solely liable for any liability currently in their name, or secured over any item of property current [sic] in their name or possession.