Bullivant & Holt
[2012] FamCA 134
•16 March 2012
FAMILY COURT OF AUSTRALIA
| BULLIVANT & HOLT | [2012] FamCA 134 |
| FAMILY LAW - PRACTICE AND PROCEDURE – Proceedings brought pursuant to Domestic Relationships Act 1994 (ACT) – cross-vested jurisdiction FAMILY LAW - PROPERTY SETTLEMENT – Domestic relationships – whether a domestic relationship existed – where parties did not live together – where parties discussed marriage – where the applicant assisted the respondent with renovations and home duties and had a relationship with the respondent’s son – finding that there was personal or financial commitment and support of material benefit – finding that a domestic relationship existed – whether a domestic relationship existed for two years – where respondent alleges there were many relationships or many periods of separation in the relationship – whether there was a series of relationships or whether periods of relationship can be aggregated to constitute one relationship – finding that there was one relationship for at least two years – contributions – no adjustment to contributions FAMILY LAW - PRACTICE AND PROCEDURE – whether leave can be granted retrospectively to commence proceedings out of time |
| Domestic Relationships Act 1994 (ACT), ss 3, 12, 15, 19 |
| Booth v Ward (2007) DFC 95-408 Crellin v Robertson (2004) 32 Fam LR 406 Davies v Richardson [2011] NSWSC 810 Ferris v Winslade (1998) 22 Fam LR 725 Lipman v Lipman (1989) 13 Fam LR 1 McKenzie v Storer [2007] ACTSC 88 McKone v Maretta (1999) DFC 95-213 Thomas v Badger (1990) DFC 95-078 |
| APPLICANT: | Ms Bullivant |
| RESPONDENT: | Mr Holt |
| FILE NUMBER: | CAC | 57 | of | 2011 |
| DATE DELIVERED: | 16 March 2012 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Faulks DCJ |
| HEARING DATE: | 19 September 2011 - 23 September 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr J Millar |
| SOLICITOR FOR THE APPLICANT: | Farrar Gesini & Dunn |
| COUNSEL FOR THE RESPONDENT: | Mr R Lethbridge, SC Ms G Eldershaw |
| SOLICITOR FOR THE RESPONDENT: | Elringtons Solicitors |
Orders
The parties shall forthwith do all acts and things and sign all necessary documents to cause:
(a)$72,193 of the proceeds of sale of the property known as … B Street, Suburb P in the Australian Capital Territory, held in trust by J Law Firm, to be paid forthwith to Ms Bullivant, born … October 1969 (“the applicant”); and
(b)To pay 37 per cent of any interest accumulated in respect of the said account over and above the figure of $72,193 to the applicant and to pay the balance to the respondent.
Within 42 days, Mr Holt, born … January 1970 (“the respondent”) shall pay to the applicant the sum of $74,608.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bullivant & Holt 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 57 of 2007
| Ms Bullivant |
Applicant
And
| Mr Holt |
Respondent
REASONS FOR JUDGMENT
Foreword and Introduction
This matter essentially involved two questions. The first is, were the parties in a domestic relationship in accordance with the terms of the Domestic Relationships Act 1994 (ACT) (“Domestic Relationships Act”)? Second, if they were in such relationship, what adjustments, if any, should be made to the interests in the property of either or both of the parties in accordance with s 15 of the Domestic Relationships Act 1994?
This matter comes before this Court on transfer from the Supreme Court of the Australian Capital Territory and pursuant to the provisions of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) and Jurisdiction of Courts (Cross-Vesting) Act 1993 (ACT).
The matter appears for whatever reason to have been delayed somewhat in the Supreme Court but when it was transferred to this Court on 10 December 2010 it was thereafter prepared for trial and the trial was conducted from 19-23 September 2011.
The parties were in dispute about whether or not they had been in a domestic relationship as defined in s 3 of the Domestic Relationships Act. They were also in dispute about the value of some items of property. The item principally in dispute was the business of the respondent known as “[AA]”. At all material times the respondent was the sole owner of AA either personally or through a company, AA Pty Ltd, which he effectively controlled. The interests in the property to be “adjusted” are the shareholdings of the respondent. However, no distinction was made between the respondent’s owning the shares of AA Pty Ltd or owning AA. I will therefore refer to them collectively as “the business”. The value of the business was seriously in dispute. Initially the respondent’s valuation for AA Pty Ltd was about $300,000 while the applicant’s valuation was over one million dollars. During the course of the proceedings the parties, in conjunction with their respective experts, agreed on the value for the business at $463,325.
Domestic Relationship
The definition of the domestic relationship in s 3(1) of the Domestic Relationships Act is:
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.
Domestic partnership is defined under the Legislation Act2001 (ACT) in s 169(2):
… a domestic partnership is the relationship between 2 people, whether of a different or the same sex, living together as a couple on a genuine domestic basis.
The Legislation Act provides some ten indicators “to decide whether 2 people are in a domestic partnership”. (It is to be noted that no similar list of indicators is provided in the Domestic Relationships Act for a domestic relationship).
Neither party suggested they were in a domestic partnership as the arrangement between them did not involve their living together as a couple on a genuine domestic basis. .
The plain meaning of the words of s 3 of the Domestic Relationships Act1994
I have been helpfully referred by counsel to decisions relating to the Domestic Relationships Act. There is no authority binding on me in relation to what constitutes a domestic relationship. I acknowledge the thoughtful judgments of his Honour Crispin J in the matter of Crellin v Robertson[1], that of Cooper J in the matter of Ferris v Winslade[2] and of Stone J in McKenzie v Storer[3].
[1] (2004) 32 Fam LR 406.
[2] (1998) 22 Fam LR 725.
[3] [2007]ACTSC 88.
The definition of domestic relationship in the ACT legislation is different from the definitions in the counterpart legislation in other States and is also different from the definition in the Family Law Act 1975 (Cth) (“the Family Law Act”), which is the legislation currently governing most relationships of a de facto nature. While the definitions in the other States and in the Family Law Act require the parties to live together, there is no such requirement under the Domestic Relationships Act.
The approach proposed to be taken
I propose to look first to the literal meaning of the words in the definition of ‘domestic relationship’. It is reasonable to assume as a starting point that parliament (or the Legislative Assembly in this case) meant what it said and said what it meant.
Personal relationship
The first requirement of the definition is that the parties should have been in a personal relationship. In this case it seems reasonably clear that the relationship between the parties was at least personal. Each of the parties had contemplated marriage. The applicant in a poignant letter to the respondent’s son (by a previous relationship), C, after the relationship had terminated, said
… I am also upset that he never asked me to marry him even though he talked about it for 7 years… [4]
[4] Exhibit R3.
It is difficult to accept this statement at face value. The parties had discussed on several occasions that they might be married and for greater caution, I so find.
The respondent, in his oral evidence before the Court, acknowledged that he was hoping throughout most of the period of the parties’ involvement that the applicant might agree to marry him and make that commitment. This hope is evidenced in a letter the respondent wrote to the applicant about two months after they finally separated:
I thought I had it all sorted. get [sic] you the house of your dreams marry and kids (you will be a great mother) and you will finally settle down with me and be happy.
….
I am really lost with the letter you wrote to [C].
I would marry you any day over the past 7 years. You say I never asked [sic] “I never thought you were happy with me” ?? [sic][5]
[5] Exhibit A12.
The evidence of the respondent is that there was never a time where the final commitment was made, and that the applicant at all times backed away from making the final commitment. It is ironic that the respondent says he was asking and the applicant says he was not asking but both parties suggested they wanted marriage.
Whatever the state of their relationship during this period it is clear from this evidence alone, that there was a personal relationship between the parties. It was not, and was never intended to be, a commercial relationship[6] and it did involve on the part of both, a serious consideration of formal marriage.
[6] Although a commercial relationship is not necessarily the only alternative to a personal relationship.
Personal or financial commitment or support of a domestic nature
The second element is that one of the parties must provide “personal or financial commitment or support of a domestic nature”[7]. It is to be noted in this regard that there is no requirement that there should be a mutual provision of personal or financial commitment and support. Therefore, it would be feasible for the respondent to have provided personal or financial commitment and support to the applicant even if the applicant had not reciprocally provided such commitment and support to the respondent, or vice versa.
[7] Domestic Relationships Act 1994 (ACT), s 3(1).
“Personal” and “financial”, separated by the word “or”, are alternatives not conjunctives. Thus, in order to make a finding of a domestic relationship, it is not necessary that there be both personal and financial commitment and support; it is sufficient that there be either personal commitment and support or financial commitment or support. Personal commitment and support does not require the provision of any money. An example of this may be where someone looks after an ageing parent without any financial contribution from the parent to the carer.
In the case of a marriage or marriage-like relationship the parties formally or informally may reach some arrangement or agreement about the provision of personal or financial commitment and support. Parties to such relationships may come to agreements about who is to conduct various duties relating to the keeping of house, the earning of money to support the parties, the care and nurturing of any children they may have and the support each might offer the other in the furthering of his or her career. In the context of such an arrangement, a detailed analysis on a day-by-day basis of what the parties do or did in support of each other or in the development of their joint assets and property may not be required.
It is more difficult to infer such a commitment or arrangement between parties in circumstances where they are not living together. But that does not mean that commitment or support might not nevertheless be given. In this matter, it is common ground that the applicant did provide some personal support to the respondent (although the respondent would say minimal support) in relation to the renovations of the Suburb P, the Suburb K and the Town D properties, the management and development of the respondent’s business (including an involvement in the Suburb H commercial premises) the development of a relationship with the respondent’s son, and general domestic duties, which each party agreed with the other as being the exemplification of their proposed more formal commitment to each other.
I set out hereunder the ways in which the applicant provided personal commitment and support of a domestic nature to the respondent. Although the respondent disputes some of the alleged ways in which the applicant provided personal commitment and support to him, there are forms of personal commitment and support which the respondent does not deny and, indeed agrees, that the applicant did provide. It is clear from what is set out below that the applicant did provide some personal commitment and support to the respondent.
Personal commitment and support
Suburb P property
In relation to the Suburb P property, the applicant asserts that she assisted with the renovation of the Suburb P property by selecting the colours for the paint; preparing the walls for painting by, for example, applying filler products and sanding; doing the “cutting in” and the finer detail around the door and floor trims; completing the rollering of most of the walls and the ceilings. She obtained quotations for the kitchen renovations, the internal bi-fold doors, and the internal mirrored cupboard doors. The applicant helped choose various fittings for the Suburb P property including the door fittings, the internal doors and the bathroom and kitchen fittings. In addition, the applicant says she helped the respondent install downlights and also helped remove the oil heater from the lounge room. She also kept the property clean during the renovation.[8]
[8] Applicant’s affidavit, filed 7 May 2010 in ACT Supreme Court, [110]-[116].
The respondent states that while the applicant did organise three quotations for the kitchen renovations, he found them too expensive and told the applicant to “leave it to [him]”.[9] This may be the case, however, it does not negate the fact that the applicant had obtained quotes for the kitchen renovations.
[9] Respondent’s affidavit, filed 11 August 2010 in ACT Supreme Court, [148].
The respondent denies that the applicant helped with installing the downlights and says that these were installed by a professional installation firm and paid for by him.[10]
[10] Respondent’s affidavit, filed 11 August 2010 in ACT Supreme Court, [149].
Even if the respondent were correct in saying the applicant did not help install the downlights, he does not deny that she supported him by attending to all the other tasks described at paragraph 21.
The business
The applicant also asserts that she supported the respondent in the development and maintenance of the business in the following ways:
a)Cross-checking sales records by checking transaction records against bank statements (it is not clear for what purpose).[11] The respondent says the applicant only once “read numbers from a spreadsheet [he] had prepared.”[12]
b)Preparing business management statements such as summaries of hours worked by particular staff members and the superannuation entitlements paid to each staff member.[13] The respondent denies this and claims he is unaware of any management statements. He concedes that the applicant did add up superannuation payments for staff to check, however claims this occurred only once and took only 15 minutes.[14]
c)Depositing money at the bank.[15] The respondent concedes this occurred but on no more than five occasions.[16]
d)Writing and editing content for the business’s website. This is also conceded by the respondent.[17] However, he minimises the effort needed to do this and says the applicant once “found a couple of spelling mistakes that [he] fixed”.[18]
e)Investigated and researched competition laws in response to alleged anti-competitive behaviour from one of the business’s competitors, and drafted a letter of complaint for the respondent to the ACCC.[19] The respondent agrees that the applicant did this, however, he states that he did not ask her to do it.[20]
f)Researched the prohibition of the sale of specific goods in the ACT[21].
g)On one occasion, the applicant accompanied the respondent when he picked up stock for the business. She drove with him to the location where the stock was held, helped pack the stock into the car and also assisted in unloading the stock into the respondent’s home garage. Following the unloading, the applicant and the respondent sorted the stock.[22]
[11] Applicant’s affidavit, filed 7 May 2010 in ACT Supreme Court, [136].
[12] Respondent’s affidavit, filed 11 August 2010 in ACT Supreme Court, [160].
[13] Applicant’s affidavit, filed 7 May 2010 in ACT Supreme Court, [137].
[14] Respondent’s affidavit, filed 11 August 2010 in ACT Supreme Court, [161].
[15]Applicant’s affidavit, filed 7 May 2010 in ACT Supreme Court, [138].
[16] Respondent’s affidavit, filed 11 August 2010 in ACT Supreme Court, [162].
[17] Applicant’s affidavit, filed 7 May 2010 in ACT Supreme Court, [139].
[18] Respondent’s affidavit, filed 11 August 2010 in ACT Supreme Court, [163].
[19] Applicant’s affidavit, filed 7 May 2010 in ACT Supreme Court, [140]
[20] Respondent’s affidavit, filed 11 August 2010 in ACT Supreme Court, [164].
[21] Applicant’s affidavit, filed 7 May 2010 in ACT Supreme Court, [141].
[22] Applicant’s affidavit, filed 7 May 2010 in ACT Supreme Court, [142].
The applicant’s evidence was that she spent, on average, about two days each fortnight doing work associated with the respondent’s business, but she did not receive a salary and was not paid any dividends.[23] The respondent vehemently denies this saying he does not believe the applicant could have done this with her busy schedule.[24]
[23] Applicant’s affidavit, filed 7 May 2010 in ACT Supreme Court, [143].
[24] Respondent’s affidavit, filed 11 August 2010 in ACT Supreme Court, [166].
Suburb H premises
Also in relation to the respondent’s business, the applicant says she helped the respondent look for new premises from which the business could be run. The applicant went with the respondent to shopping areas in Suburb T and Suburb W to inspect those shopping precincts. They searched the internet together to look for appropriate commercial premises. Upon finding one in Suburb H, the applicant assisted the respondent in cleaning the premises, installing the pegboard and shelving, building counters and painting the property in preparation for trading. The applicant was also involved in selecting and transporting the hardware and painting equipment to the Suburb H premises and the sorting and organisation of stock on the shelves.[25]
[25] Applicant’s affidavit, filed 7 May 2010 in ACT Supreme Court, [157]-[161].
The respondent subsequently decided to vacate the Suburb H premises in about mid 2007. The applicant, using a template lease, drafted a lease for the Suburb H premises and prepared signage for the shop window advertising the property for lease.[26]
[26] Applicant’s affidavit, filed 7 May 2010 in ACT Supreme Court, [161].
While the respondent does not deny that the applicant completed these tasks, he claims the applicant spent only about six hours on the Suburb H premises.[27]
[27] Respondent’s affidavit, filed 11 August 2010 in ACT Supreme Court, [172].
Suburb K property
The applicant’s evidence was that she also provided personal commitment and support to the respondent in respect of the renovation or maintenance of his house in Suburb K:
a)When the Suburb K property was repainted in 2003/2004 the applicant assisted with the selection of the paint colours, preparation of the walls for painting and painted the majority of the property’s interior and the rear pergola and deck[28]. The respondent agrees that the applicant did all of this, except the rear pergola and deck which he says was painted by a former girlfriend.[29]
b)The applicant did the “cutting in” and the finer detail on the door and floor trims. She also painted the internal cupboards.[30]
c)She selected the respondent’s bedroom suite and the respondent’s child’s bedroom suite as well as the dining suite.[31] The respondent denies that the applicant assisted with the bedroom suites, but agrees she helped select the dining suite which was for the Suburb P property.[32]
d)The applicant was “responsible” for a major clean-out of the Suburb K property in about 2003. She cleaned the interior of the house, went through the cupboard and storage location and sorted items into those that needed to be thrown away and those that should be stored elsewhere. The applicant claims she did this every year at the Suburb K property until the parties separated.[33]
[28] Applicant’s affidavit, filed 7 May 2010 in ACT Supreme Court, [145], [146], [148], and [149].
[29] Respondent’s affidavit, filed 11 August 2010 in ACT Supreme Court, [169] and [170].
[30] Applicant’s affidavit, filed 7 May 2010 in ACT Supreme Court, [147].
[31] Applicant’s affidavit, filed 7 May 2010 in ACT Supreme Court, [150].
[32] Respondent’s affidavit, filed 11 August 2010 in ACT Supreme Court, [171].
[33] Applicant’s affidavit, filed 7 May 2010 in ACT Supreme Court, [151].
Town D property
The applicant asserts the respondent wanted to purchase a house on the coast that they could holiday in together “as a family”.[34] According to the applicant, the parties inspected properties on the coast together and eventually found the Town D property. This property was purchased in 2002 in the respondent’s name allegedly because the applicant could not afford to purchase this jointly with the respondent.[35]
[34] Applicant’s affidavit, filed 7 May 2010 in ACT Supreme Court, [164].
[35] Applicant’s affidavit, filed 7 May 2010 in ACT Supreme Court, [165].
The applicant assisted the respondent with renovations at the Town D property on the weekends and sometimes for longer periods. Renovations of the property allegedly occurred from the time it was purchased in 2002 until 2007. The parties removed existing fixtures, renovated the kitchen and bathroom and all floor and window coverings.[36]
[36] Applicant’s affidavit, filed 7 May 2010 in ACT Supreme Court, [166].
The applicant removed wallpaper and paint from the internal walls of the Town D property, prepared the property for painting, transported waste material which arose from the renovations from the house to a “refuse location” on the property, and generally kept the property clean during the renovations. The applicant also organised quotations for renovations of the bathroom and the kitchen, selected the paint colours, assisted the respondent in choosing the floor and wall tiles, bathroom fittings, light fittings, door fittings, window coverings and all kitchen fittings. She also assisted the respondent with tiling of the floors.[37]
[37] Applicant’s affidavit, filed 7 May 2010 in ACT Supreme Court, [169]-[177].
The respondent’s evidence is that the parties spent “limited time” at Town D and that he paid professionals to fit the carpets, curtains, kitchens, bathrooms and the laundry. He “guess[es]” that the applicant was present on only one weekend out of the six that his friend spent helping him at Town D.[38] This does not, however, negate the applicant’s evidence that she prepared the property for painting, transported waste, kept the property clean, selected paint colours, and assisted with tiling the floors.
[38] Respondent’s affidavit, filed 11 August 2010 in ACT Supreme Court, [174].
Queensland investment properties
The applicant says she assisted the respondent in his purchase of investment properties in Queensland by researching the local property market and providing him with advice about certain areas in Queensland based on her knowledge of those places. The research carried out by the applicant involved viewing images of houses; locating them on a street map; assessing their proximity to schools, universities, shops and town centres; determining whether they may be at risk of flooding; and comparing the number of bedrooms, garages and overall land size.[39]
[39] Applicant’s affidavit, filed 7 May 2010 in ACT Supreme Court, [180]-[183].
After completing this research, the applicant would “rank” the various properties based on her findings and taking into account the asking price, and provide her “rankings” to the respondent.[40]
[40] Applicant’s affidavit, filed 7 May 2010 in ACT Supreme Court, [184].
The respondent admitted in cross-examination that the applicant had done research in relation to some properties in Queensland, but says that they were not the properties he chose to purchase.
Applicant’s relationship with the respondent’s son
The applicant says she provided personal commitment and support to the respondent by developing a relationship with his son, C.
Generally, the applicant claims she played with C on the weekends when he was in the respondent’s care and was mindful of not planning social engagements on those weekends.[41] The respondent denies these claims.[42]
[41] Applicant’s affidavit, filed 7 May 2010 in ACT Supreme Court, [195] and [196].
[42] Respondent’s affidavit, filed 11 August 2010 in ACT Supreme Court, [183]-[184].
During the first three years of the relationship, the applicant and C played games that C had invented including the “shopping game” and the “army men game”. From about 2004 onwards, she and C spent “considerable periods of time” playing computer games. The parties and C rode their bikes together; the applicant and C rode their bikes to the BMX track and then practised their skills there.[43] The respondent’s version minimises the applicant’s involvement with his son; he recalls the applicant going to the BMX park only once, that she got scared and did not go back.[44]
[43] Applicant’s affidavit, filed 7 May 2010 in ACT Supreme Court, [197]-[199].
[44] Respondent’s affidavit, filed 11 August 2010 in ACT Supreme Court, [185].
The applicant also helped C with his homework, particularly with his speeches and projects. She sometimes checked his maths homework for him, though this was usually done by the respondent.[45] The respondent’s evidence again minimises the applicant’s involvement; his evidence is that the applicant struggled to help C with his maths homework so she did not help him with this again, and she helped him with one Chinese project for one hour.[46]
[45] Applicant’s affidavit, filed 7 May 2010 in ACT Supreme Court, [201].
[46] Respondent’s affidavit, filed 11 August 2010 in ACT Supreme Court, [188].
The applicant was also otherwise involved in C’s school commitments – she attended his sporting games with the respondent, practised sports with C and sometimes the respondent as well, and attended school functions such as Christmas pageants and award ceremonies.[47] While the respondent concedes the applicant attended C’s sporting games, he claims this occurred only on a limited number of occasions because the parties rarely went out as a couple.[48] In relation to playing sports with C, the respondent recalls this only occurred on “a couple” of occasions,[49] and in relation to attendance at school functions, the respondent states the applicant only attended one Christmas function[50] and one sports awards presentation.[51]
[47] Applicant’s affidavit, filed 7 May 2010 in ACT Supreme Court, [205]-[208].
[48] Respondent’s affidavit, filed 11 August 2010 in ACT Supreme Court, [192].
[49] Respondent’s affidavit, filed 11 August 2010 in ACT Supreme Court, [193].
[50] Respondent’s affidavit, filed 11 August 2010 in ACT Supreme Court, [194(a)].
[51] Respondent’s affidavit, filed 11 August 2010 in ACT Supreme Court, [195].
When C was on school holidays, the applicant took leave from work to holiday with C and the respondent at Town D. During these holidays, the parties and C played together at the beach, and the applicant would care for C while the respondent went swimming.[52] The respondent’s evidence is that he cannot recall a time when the applicant took leave from work to go to Town D.[53] Somewhat contradictorily, the respondent also said that while at Town D, he recalls some occasions when the applicant and C went into the water together.[54] Exhibit A11 contains photographs depicting the applicant in the water with C and the applicant building a sandcastle with C on his sixth birthday in January 2002.[55] These support the applicant’s assertions that she had played with C at the beach, but whether or not this was at Town D is unclear.
[52] Applicant’s affidavit, filed 7 May 2010 in ACT Supreme Court, [202]-[204].
[53] Respondent’s affidavit, filed 11 August 2010 in ACT Supreme Court, [189].
[54] Respondent’s affidavit, filed 11 August 2010 in ACT Supreme Court, [190(b).
[55] Exhibit A11.
The applicant would also provide personal support to the respondent by caring for C on some occasions when the respondent worked in the business on the weekend, and also attending to some of C’s medical care e.g. by applying cream to C’s skin rashes.[56] While the respondent agrees the applicant did some of these things, he qualifies this by saying that they did not occur often.[57] He denies that the applicant arranged a physiotherapy appointment for C after C injured his gluteal muscles, but agrees that she may have researched some stretches he could do to help assist with the injury.[58]
[56] Applicant’s affidavit, filed 7 May 2010 in ACT Supreme Court, [209]-[213].
[57] Respondent’s affidavit, filed 11 August 2010 in ACT Supreme Court, [199].
[58] Respondent’s affidavit, filed 11 August 2010 in ACT Supreme Court, [200].
The respondent does not only contend that the applicant did not do the activities she claims she did with his son, the respondent was eager to paint a picture that his son was in fact an impediment to the applicant committing to any permanent relationship with him. He alleges the applicant said to him in 2002, “The reason that I don’t want to have a relationship with you is [C].”[59] The respondent claims that this continued throughout the parties’ involvement with one another. In about April 2007, when the parties had purchased the Suburb P property, the respondent alleges the applicant said “I am not going to move in with you if your son is going to keep coming to our house. …[C’s] mum can play her part in raising [C]. He is not your responsibility.”[60]
[59] Respondent’s affidavit, filed 11 August 2010 in ACT Supreme Court, [30].
[60] Respondent’s affidavit, filed 11 August 2010 in ACT Supreme Court, [63].
It is difficult to find precisely the nature of the applicant’s relationship with C. The letter finally written by the applicant to him is consistent with there being a good and warm relationship between them. This is broadly consistent with the applicant’s evidence that she got on well with him and in fact did things with him including caring for him when he was younger.
I find the evidence about these matters from each of the parties somewhat unsatisfactory. I am inclined to the view that the relationship between the applicant and the respondent’s son was rather better than the respondent suggested but not as strong as the applicant suggested. I suspect, without being able to determine it, that the fact the respondent had a son was, at the beginning of the time the parties became associated, an impediment to the commencement of a more permanent relationship between them. But, this probably diminished as an impediment as time went by. There is no doubt from the pictures that have been tendered, from the evidence of the parties and the admissions of the respondent that the applicant and the respondent’s son did a number of activities together (as described above) and did so in a pleasant and enjoyable way.
All in all I accept that there was some significance to the relationship between the applicant and the respondent’s son and to that extent it supports positively that there was provision of personal commitment and support from the applicant to the respondent.
Homemaking
The applicant asserts she provided domestic support to the respondent in the form of homemaking duties.
When the respondent worked at his business on Saturday mornings, the applicant cleaned and tidied up the Suburb K house and later, the Suburb P property. She did the washing ironing and changed the bed linen. The applicant cooked meals for the respondent and put those meals into containers so that he could take them with him to work. She also took these meals to the Suburb K property for the parties to eat during the working week. The applicant also cooked when the parties and C holidayed at Town D.[61] The respondent denies all of these claims and says the applicant cleaned his house only once during their relationship and subsequently complained about it.[62]
[61] Applicant’s affidavit, filed 7 May 2010 in ACT Supreme Court, [215]-[216], [220], [225].
[62] Respondent’s affidavit, filed 11 August 2010 in ACT Supreme Court, [202] and [203].
The applicant says she organised most of the parties’ holidays, she booked flights and/or accommodation and made enquiries about things to do in the holiday area.[63] The respondent denies this, saying the applicant only booked and paid for one holiday to a resort.[64]
[63] Applicant’s affidavit, filed 7 May 2010 in ACT Supreme Court, [226].
[64] Respondent’s affidavit, filed 11 August 2010 in ACT Supreme Court, [213(a)].
The applicant also deposes to specific instances where she provided personal support to the respondent. In 2003, following the Canberra bushfires, the applicant negotiated with the neighbour of the Suburb K property for payment of half the costs of the fence destroyed in the bushfire. When the respondent purchased a new car in about 2005/2006, the applicant accompanied him to the dealership in Town Y to pick up the car and the applicant drove the respondent’s old car back to Canberra while the respondent drove his new car. When the respondent decided to sell the car, the applicant wrote the description and took the photographs for the advertisement of the car and emailed those to the car sales website.[65] The respondent agrees that the applicant did these things.[66]
[65] Applicant’s affidavit, filed 7 May 2010 in ACT Supreme Court, [221]-[224], [226].
[66] Respondent’s affidavit, filed 11 August 2010 in ACT Supreme Court, [208]-[211].
The personal, i.e. non-financial, commitment and support provided by the applicant arose out of the personal relationship between her and the respondent. Her actions demonstrate on her part a willingness to provide some support to the respondent and a commitment to their relationship. The weight and quality of any contribution is a matter to be assessed if I determine there is a domestic relationship. It is enough perhaps at this point to note that there were some personal contributions on her part.
Financial commitment and support
The Suburb P property
The most significant financial commitment and support given by the applicant to the respondent and their relationship was her financial contribution to the Suburb P property.
The parties purchased the Suburb P property with the intention of making it their home. This is indicated by the fact that the property was purchased in their joint names.[67] The arrangements between the parties were that the bulk of the funds required in relation to the purchase, at least initially, were to be supplied by the applicant.
[67] Applicant’s affidavit, filed 7 May 2010 in ACT Supreme Court, [92].
The Suburb P property was purchased for $560,000 and the applicant paid the five percent deposit of $28,000 as well as the legal fees associated with the conveyance.[68] The applicant says she paid for the home insurance over the Suburb P property,[69] but this is disputed by the respondent who claims that it was he who paid for the insurance.[70]
[68] Applicant’s affidavit, filed 7 May 2010 in ACT Supreme Court, [106].
[69] Applicant’s affidavit, filed 7 May 2010 in ACT Supreme Court, [105]
[70] Respondent’s affidavit, filed 11 August 2010 in ACT Supreme Court, [146] and [147].
The parties renovated the Suburb P property after purchase. The applicant met half of the costs of paint, purchased tools, painting equipment and other items required for the renovation.[71] She also paid $4,000 in mortgage repayments.
[71] Applicant’s affidavit, filed 7 May 2010 in ACT Supreme Court, [110] and [117].
I have considered the question of whether the fact that this commitment occurred late in the relationship/involvement is significant. If it happened at the beginning of the relationship would that have made my task of determining whether or not a domestic relationship existed any easier? That is part of my overall consideration about the circumstances of the parties to which I will refer in more detail in due course.
Suburb K property
When the Suburb K property was repainted as discussed in paragraph 30 above the applicant says she purchased about half of the paint used, however the respondent denies this.
I can not make a finding about this particular matter, but it is not significant as little turns on the purchase of paint on one occasion.
Town D property
The applicant purchased items to be used in the kitchen such as storage containers, mixing bowls, serving utensils and other items. She also purchased bed linen and doona covers.[72]
[72] Applicant’s affidavit, filed 7 May 2010 in ACT Supreme Court, [178].
Other provisions of financial commitment and support
The applicant claims that she bought clothes for C throughout the relationship because the respondent did not often buy clothing for him.[73] The respondent denies the applicant did this.[74] It is also asserted by the applicant that she purchased low irritant washing powder to help minimise the occurrence of C’s skin rashes. Again, the respondent denies that the applicant did this.[75]
[73] Applicant’s affidavit, filed 7 May 2010 in ACT Supreme Court, [200].
[74] Respondent’s affidavit, filed 11 August 2010 in ACT Supreme Court, [187].
[75] Respondent’s affidavit, filed 11 August 2010 in ACT Supreme Court, [198(e)].
According to the applicant, she generally purchased groceries for the respondent.[76] This is denied by the respondent whose evidence is that the applicant purchased groceries for her home and he purchased groceries for his home.[77]
[76] Applicant’s affidavit, filed 7 May 2010 in ACT Supreme Court, [217].
[77] Respondent’s affidavit, filed 11 August 2010 in ACT Supreme Court, [204].
It is evident that the contributions and level of personal and financial commitment and support provided by the applicant varied significantly from project to project. In each case her commitment and support was significantly outweighed by the contributions, both financial and non financial, of the respondent. Nevertheless, they point collectively to an involvement together and, on the part of the applicant, to a commitment of personal and financial support for the respondent and for these projects.
Both the personal and financial commitment and support provided by the applicant to the respondent were clearly of a domestic nature as they arose out of the personal relationship that existed between the parties. The expectations of the parties themselves about the relationship and about their future (see paragraphs 11 to 13 of these Reasons) support the proposition that, at least for substantial parts of the time that the parties were in a relationship, they were contemplating a future in a committed relationship one to the other.
I therefore find that there was personal and financial commitment and support provided by the applicant to the respondent and that such commitment and support was of a domestic nature.
Notwithstanding the analysis set out above, in relation to the personal commitment and support provided by the applicant to the respondent, and notwithstanding that under the terms of s 3(1) of the Domestic Relationships Act it is only necessary that one party provide such support and commitment, it would be appropriate for me to affirm that during the period of the parties’ relationship, personal commitment and support was provided by the respondent to the applicant.
This is conceded even by the respondent. In an e-mail to the applicant dated 13 July 2007, the respondent wrote to the applicant:
… I have brought [sic] for you expensive presents in the past and have paid for holidays away… I made a commitment to you from day one and worked towards your goal of not having to work to raise kids, which I achieved.[78]
[78] Exhibit R3.
In an earlier letter dated 17 November 2006, the respondent wrote to the applicant:
… I always supported and encouraged you to grow…
Last year is was clear to me that I needed to reduce my hours at work increase my income to support you and what would be our family and to buy a nice house. You had clearly stated that this is the number one issue that needed to be addressed. I had two options in my mind sell [sic] the business or expand the business, I obviously choose the later. …The business is now making the money I needed to feel secure and to support a family. I now have the money in the bank to buy the dream house.[79]
These statements from the respondent show that he was aware of the applicant’s expectations from him and from their relationship, and that he provided the personal and financial commitment and support to meet the applicant’s expectations.
[79] Exhibit A10.
For the material benefit of the other
If there was a personal relationship between the parties which involved on the part of the applicant personal or financial commitment and support of a domestic nature, there still remains a question about whether such personal or financial commitment and support was for the material benefit of the respondent. The inclusion of the word “material” in s 3 would suggest that this is to exclude ‘random acts of kindness’ or the like.
The word “material” is defined in the Macquarie Dictionary[80] only as a noun but “materially” is defined as:
1. to an important degree; considerably. 2. with reference to matter or material things; physically 3. Philosophy with regard to matter or substance as distinguished from form.
[80] Macquarie Dictionary, fourth edition.
In the Shorter Oxford English Dictionary[81] “material” is given an adjectival meaning. That is:
… Of much consequence; important…
[81] Shorter Oxford English Dictionary, third edition.
In combination it might be suggested that “material” must mean something of consequence or something that is significant or important.
It is perhaps easier to determine financial commitment and support as of some consequence. What is more difficult to determine is whether personal commitment and support were of a material benefit.
Some personal support is objectively observable, for example nursing care and support. However, in relation to support which is more intangible, for example playing computer games with the respondent’s son and viewing potential properties to purchase together, the best judge of this would probably be the recipient of such commitment and support – in this case, the respondent.
The recipient appears to have placed reasonably high regard on the personal commitment and support from the applicant because, even until the very end of the relationship, he wanted the relationship to be a marriage and to involve significant and permanent commitment on the part of both of them. This desire is demonstrated through various correspondence the respondent sent to the applicant. In one letter addressed to the applicant after the parties had separated, the respondent wrote:
So you are everything I ever wanted or dreamed was possible in a girl. You bring me to higher levels all the time. I actually think I am even getting better and stronger now. You bring me such joy. I am happy just looking at you.
…
I learnt so much from you and I feel much better man [sic] today from knowing you.[82]
In an e-mail to the applicant dated 17 November 2006, during one of the periods of separation, the respondent wrote “You do developed me [sic] in many good ways.”[83]
[82] Exhibit A13.
[83] Exhibit A10.
The respondent’s hope that the parties would commit permanently to a long-term relationship is also demonstrated by the comments he wrote to the applicant as described in paragraph 13 above.
That the respondent so greatly desired to engage in a committed long-term relationship with the applicant is an indication that he valued the support she gave him and the contributions she brought to their relationship. I therefore find that the applicant’s commitment and support were of material benefit to the respondent.
I make the same finding with respect to the respondent’s commitment and support for the applicant. The adjudication of the quality of the support (that is, whether it was of material benefit) should be by the applicant who was the recipient of the support. The applicant clearly valued and placed high regard on the commitment and support the respondent gave her. As mentioned previously, she had hoped throughout the parties’ relationship that the respondent would ask her to marry him and was upset that he never did so:
…I am also upset that [the respondent] never asked me to marry him even though he talked about it for 7 years.
Had the respondent’s support and commitment not been of material benefit to the applicant, it is unlikely she would have continued to hope they would marry.
Conclusion about a domestic relationship
The respondent would say that any domestic relationship did not occur until the parties combined in the joint venture for mutual financial commitment and support in the purchase of the Suburb P property. It is true that the level of the applicant’s participation, commitment and support to the respondent in the projects referred to above is in dispute. I propose to examine this matter more carefully later in these reasons as I look at the quality of the applicant’s contributions.
It is notable that, for the entirety of their involvement with one another, the parties did not share a household. They slept under one roof, sometimes at the respondent’s home and sometimes at the applicant’s, with some frequency, though it is difficult to be precise about this arrangement. The respondent maintained they had not been together for more than three nights at a time although there were holiday periods which may have been a little longer. I suspect that the truth lies somewhere between the versions of each of the parties. In any event there is no pattern of living together even though each stayed at the other’s place on a regular basis, and I accept that such ‘sleepovers” were, for much of the time, on a regular basis.
While it might be said that to an outside observer, the relationship between the parties was somewhat unusual, it was characterised by persistence on the part of each of them. This was not an involvement of finance or convenience but one of personal commitment. In the end after they had finally collaborated on a joint project in the purchase of the Suburb P house, the fact that they then separated does not in my opinion remove the fact (at least on the balance of probabilities) that the parties did both give and receive personal commitment and support from each other. I accept there was some participation and some commitment and support both from the applicant and from the respondent for the material benefit of the other.
On balance I find that there was a domestic relationship in this matter. It is a matter of balance – in this case, a fine balance – but the legislation is enabling or facilitative in nature and, in my opinion, should be construed wherever it is reasonable to do so, as facilitating a finding that a domestic relationship existed (see also paragraph 132 of these Reasons). In finding that a domestic relationship existed, I am perhaps employing an “intuitive synthesis” of the factors before me. No one factor was determinative, but all taken together with the benefit of seeing and hearing the parties lead me to find that a domestic relationship did exist between the parties.
For not less than two years
S 12 of the Domestic Relationships Act states:
(1)A court must not make an order under this part in relation to a domestic relationship… unless satisfied that the domestic relationship has existed between the applicant and respondent for not less than two years.” (my emphasis)
(2)However, if the court is not so satisfied, it may make an order under this part if it is satisfied that –
(a)there is a child of the parties to the relationship; or
(b)the applicant-
(i)has made substantial contributions of the kind referred to in section 15(1)(b) or (c) for which the applicant would otherwise not be adequately compensated if the order were not made; or
(ii)has the care and control of a child of the respondent;
and the failure to make the order would result in serious injustice to the applicant.
It is clear from the legislation that the threshold question is whether the ‘domestic relationship’ existed for at least two years. If it did not, the Court must look at the other factors. In this case, there is no child of the parties to the relationship and the applicant does not have the care or control of a child of the respondent. Therefore, if it is found that the domestic relationship did not exist for at least two years, then I must consider whether the applicant made “substantial” contributions of the kind referred to in s 15(1)(b) or (c) of the Domestic Relationships Act for which she would not be adequately compensated if an order adjusting property interests were not made.
I turn first to the question of whether the parties’ domestic relationship existed for the required two year minimum.
Each of the parties presented a different version of their relationship. The applicant’s evidence was that the parties were in a committed relationship that lasted for about seven years, with two periods of separation. On the respondent’s version, his relationship with the applicant consisted of “numerous short term casual relationships generally under one month”.[84]
[84] Respondent’s affidavit, filed 11 August 2010 in ACT Supreme Court, [5(c)].
I set out hereunder each party’s version of their relationship.
Applicant’s history of the relationship
The applicant and the respondent met in early 2001 while working at the same government department.[85] However, they did not commence a romantic relationship immediately because the applicant felt some unease about commencing a personal relationship with a work colleague.[86] It was not until July 2001, when the applicant transferred to a different government agency, that the parties commenced a romantic relationship.[87]
[85] Applicant’s affidavit, filed 7 May 2010 in ACT Supreme Court, [9].
[86] Applicant’s affidavit, filed 7 May 2010 in ACT Supreme Court, [10].
[87] Applicant’s affidavit, filed 7 May 2010 in ACT Supreme Court, [10].
It is the applicant’s evidence that throughout the relationship she spent about three nights each week at the respondent’s home, usually Friday and Saturday nights as well as one other night of the week. For the period that the respondent worked at the government agency, the parties would have dinner at her home on one or two nights during the working week before going to the respondent’s home where the parties stayed for the night.[88]
[88] Applicant’s affidavit, filed 7 May 2010 in ACT Supreme Court, [16].
The respondent would occasionally stay at the applicant’s home. [89]
[89] Applicant’s affidavit, filed 7 May 2010 in ACT Supreme Court, [15].
This was the arrangement for the entirety of the parties’ relationship, save for the periods of separation.[90] The parties never cohabited.
[90] Applicant’s affidavit, filed 7 May 2010 in ACT Supreme Court, [19].
According to the applicant, the first period of separation occurred in August 2006 when she told him she was “seeing someone else.”[91] The applicant had started a romantic relationship with a Mr Z. In cross-examination, the applicant revealed that her relationship with Mr Z continued until January 2007.
[91] Applicant’s affidavit, filed 7 May 2010 in ACT Supreme Court, [26].
Despite the fact they had separated as a romantic couple, the parties still spent time together and during this time the applicant asserts that the respondent expressed a desire to reconcile, would attempt to kiss her and tell her that “[n]o one will love [her] like [he] does”. This was despite the respondent also having commenced a relationship with someone else.[92]
[92] Applicant’s affidavit, filed 7 May 2010 in ACT Supreme Court, [27] and [28].
By late 2006 the parties had reconciled and they spent the 2006/2007 Christmas holidays with C on the Gold Coast in Queensland.[93] The applicant conceded during cross-examination that she was still involved with Mr Z at this time and that involvement continued until just after New Year’s Day in January 2007.
[93] Applicant’s affidavit, filed 7 May 2010 in ACT Supreme Court, [30].
The second period of separation, the applicant states, began in May 2007 soon after the Suburb P property was purchased. The parties reconciled again in about October 2007.[94]
[94] Applicant’s affidavit, filed 7 May 2010 in ACT Supreme Court, [31]-[33].
The relationship then continued until the parties separated on a final basis in August 2008.[95]
[95] Applicant’s affidavit, filed 7 May 2010 in ACT Supreme Court, [34].
Respondent’s history of the relationship
The respondent agrees the parties commenced a romantic relationship in July 2001. However, his evidence is that the applicant was still in contact with her previous boyfriend at the time so their relationship was “slow going” and “casual at best”.[96]
[96] Respondent’s affidavit, filed 11 August 2010 in ACT Supreme Court, [10].
This “casual” relationship continued until January 2002. The respondent agrees that during the relationship the parties lived in separate households. Unlike the applicant, however, the respondent says that they stayed over at each other’s homes once a week or once a fortnight.[97]
[97] Respondent’s affidavit, filed 11 August 2010 in ACT Supreme Court, [15].
In January 2002 the applicant allegedly told the respondent that she no longer wished to continue the relationship because she “[couldn’t] be in a relationship with someone who has a child. [She couldn’t] be a mother to someone’s child.”[98]
[98] Respondent’s affidavit, filed 11 August 2010 in ACT Supreme Court, [14].
The respondent asserts that the relationship resumed in June 2002 at the applicant’s instigation. The relationship seemed to continue as before, with the parties maintaining separate households and spending the occasional night, according to the respondent less than one night per fortnight on average, at each other’s homes.[99] The respondent recalls the applicant often said to him “I don’t do sleepovers during school nights.”[100]
[99] Respondent’s affidavit, filed 11 August 2010 in ACT Supreme Court, [16], [19] and [21].
[100] Respondent’s affidavit, filed 11 August 2010 in ACT Supreme Court, [23].
The applicant allegedly complained that she did not wish to stay over at the respondent’s house because it was “not clean enough” and that she did not want to have a relationship with him because of his son.[101]
[101] Respondent’s affidavit, filed 11 August 2010 in ACT Supreme Court, [[32] and [30].
In September 2003, the applicant reportedly ended the relationship because, after the respondent received a promotion at work, this meant he was at a “higher level” than she and it was “inappropriate that [they] continue to see each other.”[102]
[102] Respondent’s affidavit, filed 11 August 2010 in ACT Supreme Court, [37].
Three months later in January 2004, the parties reconciled. On this occasion, the reconciliation lasted, according to the respondent, less than four weeks. The applicant had agreed to move into the respondent’s home in Suburb K, but after only three days of living together left the Suburb K home and the relationship.[103]
[103] Respondent’s affidavit, filed 11 August 2010 in ACT Supreme Court, [38]-[39].
The parties resumed a relationship in May 2004. It was during this time that the applicant told the respondent that she had terminated a pregnancy and that the child had been the respondent’s. The parties then separated again in June 2004 and during this period of separation, the respondent purchased three investment properties in Queensland.[104]
[104] Respondent’s affidavit, filed 11 August 2010 in ACT Supreme Court, [40], [41] and [43].
In December 2004, the parties again commenced a relationship which lasted until July 2005. This period of separation lasted for about 12 months. During this time, the respondent met a girl, Ms L, at work; he had dinners with Ms L and his staff at his home and the two would regularly go to lunch together. During the time that Ms L worked with the respondent, she lived with the respondent in his home.[105] Neither party contends that the relationship between the respondent and Ms L was a romantic one.
[105] Respondent’s affidavit, filed 11 August 2010 in ACT Supreme Court, [44], [48].
It was not until January 2006, when the applicant contacted the respondent, that the parties rekindled their romantic relationship. According to the respondent, this period of reconciliation was short-lived and the parties again separated at the end of February 2006.[106]
[106] Respondent’s affidavit, filed 11 August 2010 in ACT Supreme Court, [50].
It appears the parties were together again for a brief period in about April or May 2006, but then separated again in June 2006.[107] As stated above, the applicant commenced a relationship with Mr Z shortly after this period of separation.
[107] Respondent’s affidavit, filed 11 August 2010 in ACT Supreme Court, [51]-[53].
This period of separation lasted until January 2007, and during this interval, each of the parties commenced relationships with other people.[108]
[108] Respondent’s affidavit, filed 11 August 2010 in ACT Supreme Court, [54]-[57].
In January 2007 the parties resumed their relationship. The respondent claims the applicant contacted him again and asked to “catch” up with him on the Gold Coast while he was holidaying with his son. [109] Upon deciding they should resume their relationship, both parties agreed that they should “commit” to that relationship, “settle down and buy a house together”.[110]
[109] Respondent’s affidavit, filed 11 August 2010 in ACT Supreme Court, [59].
[110] Respondent’s affidavit, filed 11 August 2010 in ACT Supreme Court, [62].
Following on from this promise, the parties purchased the Suburb P property on 14 April 2007. However, on this date, the applicant allegedly complained to the respondent, again, that his son was an impediment to their relationship progressing[111] and so the relationship would appear to have ended again.
[111] Respondent’s affidavit, filed 11 August 2010 in ACT Supreme Court, [63].
If it did not end at this point, then it did end in October 2007 when the respondent informed the applicant that another woman, one he had had a relationship with in July 2007, was pregnant with his child and that he had committed himself to her.[112]
[112] Respondent’s affidavit, filed 11 August 2010 in ACT Supreme Court, [66]-[67].
In January 2008, the applicant initiated another reconciliation with the respondent, saying she wanted a relationship with him even though he had a child with another person. However, that reconciliation, according to the respondent, was short-lived and the relationship ended again in about April 2008. It would seem that the respondent’s reason for the relationship ending at this point was that the applicant wanted him to “sign all [his] assets over to [her] in the will”. Because the respondent refused to do so, the relationship ended.[113]
[113] Respondent’s affidavit, filed 11 August 2010 in ACT Supreme Court, [68]-[73].
In May 2008 the parties once again resumed their relationship. In about August 2008 the renovations on the Suburb P property were complete and the property was ready for the parties to occupy. However, the applicant refused to move in and the relationship ended on a final basis.[114]
[114] Respondent’s affidavit, filed 11 August 2010 in ACT Supreme Court, [74].
On the applicant’s version, the domestic relationship clearly lasted for at least two years, having commenced in about mid 2001 with the first period of separation occurring in August 2006, and the Court may make an order for adjustment of property interests.
On the respondent’s version, however, the parties were in a romantic relationship for periods ranging from four weeks to about 15 months with varying periods of separation in between. The question that arises, if the respondent’s evidence is accepted, is whether the periods are capable of being aggregated together to meet the two year requirement.
In this regard I prefer the applicant’s evidence to that of the respondent. I regard her version as more probable in the context of the history of the parties and the period of time over which the parties were connecting in one way or another. I accept not only that the parties were in a domestic relationship, but that they were in a domestic relationship from at least July 2001 until August 2006.
However, if I did not accept the applicant’s version of events, it is necessary for me to determine whether at law it is proper or, indeed, permissible to aggregate the periods of the relationship.
There have been a number of cases before the Supreme Court in New South Wales which deals with this issue. These cases concern the now called Property (Relationships) Act 1984 (NSW) (originally the De Facto Relationships Act 1984 (NSW)). The Property (Relationships) Act is worded in similar terms to the Domestic Relationships Act:
(1) Except as provided by subsection (2), a court shall not make an order under this Part unless it is satisfied that the parties to the application have lived together in a domestic relationship for a period of not less than 2 years.[115] (my emphasis)
[115] Property (Relationships) Act 1984 (NSW), s 17.
In Lipman v Lipman[116], which concerned the De Facto Relationships Act, the parties had lived together from 1973 until 1986 with a six month separation in 1983. When the parties separated, the de facto husband had required the de facto wife to leave the home and a new partner took her place. In these particular circumstances, Powell J found that the periods of relationship on either side of the six month separation were two discrete de facto relationships rather than one continuous de facto relationship. However, it is significant for the matter before me to note that Powell J specifically stated that:
... although I do not discount the possibility that “a de facto relationship” may properly be regarded as continuing nothwithstanding that the parties may have separated only temporarily while they attempted to work through some difficulty which they had encountered in their relationship, I am quite unable to see how such a relationship can be said to continue in a case, such as this, in which the “de facto husband” requires the “de facto wife” to leave the “matrimonial home” and installs another in her place. (my emphasis)[117]
[116] (1989) 13 Fam LR 1.
[117] Lipman v Lipman (1989) 13 Fam LR 1, 24.
It is clear from this that in Powell J’s view, it is possible for a de facto relationship which has been ‘interrupted’ by temporary separations to be considered one relationship (rather than a series of relationships). However, in circumstances where one party requires the other to leave the joint home and commences a relationship with a new partner, that separation renders the relationship ended so that any resumption of a relationship between the two parties constitutes a new relationship, separate from the first one.
In Thomas v Badger[118], which also concerned the De Facto Relationships Act, the parties’ relationship was interrupted by a large number of absences. They had 13 separate periods of cohabitation in a seven year period, and during that time neither party had a sexual partner other than the other party to the proceedings. In this case, Young J found:
Looking at the totality of the relationship over the period of seven years one can see that it was not the happiest of relationships but was one which always continued on from where it left off. There was an incident, a separation and then usually a short time later the parties got back together again on the same basis as before. In my view the proper determination of the factual question raised is that there was a de facto relationship which continued between July 1981 and June 1988.[119]
[118] (1990) DFC 95-078.
[119] Thomas v Badger (1990) DFC 95-078, 76,105.
McKone v Maretta[120] is another case which dealt with this issue under the De Facto Relationships Act. In that matter, the parties lived together in a de facto relationship for a number of periods between late 1984 and the middle of 1995. In that case, Master Macready noted:
58. … The qualification that perhaps emerges from what his Honour Young J was referring to in Thomas v Badger is that when one has a situation of frequent interruptions and then a return to the relationship that may, in fact, lead one, on a factual basis, to suggest that perhaps an expressed intention to leave the relationship was not the real intention and was more a pattern of behaviour.[121]
[120] (1999) DFC 95-213.
[121] McKone v Maretta (1999) DFC 95-213, [58].
In Davies v Richardson[122] Slattery J considered the question of when a de facto relationship commenced and when it ended in order to determine whether it was the de facto relationship provisions in the Family Law Act 1975 or whether it was the Property (Relationships) Act that would be applicable. Slattery J said:
28.But short separations may not end a relationship. The New South Wales Court of Appeal in Gazzard v Winders (1998) 23 Fam LR 716. [sic] In that case Justice Beazley in contrast to Powell JA and with the agreement of Stein JA found that it was not in the spirit of the De Facto Relationships Act (1984) (NSW), as the legislation was then known, or reality to find that a short interruption that “which, in a long relationship may be no more than a hiccup, would have completely brought the relationship to an end” (at [20]).
29.The effect of a period of separation on a de facto relationship may influenced [sic] by the presence of a third person during the separation period. In Thompson v Badger (1990) DFC 95-078 several periods of separation were not seen as fatal to the inference of a de facto relationship. However an element in determining that such separation periods did not signify that the relationship was at an end was not only that the parties eventually reconciled after their periods of separation, but that neither party had another sexual partner during the times of separation.[123]
[122] [2011] NSWSC 810.
[123] Davies v Richardson [2011] NSWSC 810, [28] and [29].
These cases indicate that simply because parties to a relationship temporarily ‘separate’, this does not necessarily permanently end the relationship or prevent the various periods of relationship from being classified as one relationship. Factors that are indicative of the relationship being classified as such include the parties picking up and continuing the relationship where they left off at the time of separation, or neither party commencing a relationship with another partner during the time of separation. It has also been recognised that even if one party expresses an intention to leave the relationship, that is not necessarily indicative of the termination of the relationship, but rather a pattern of behaviour.[124] On the other hand, when one party commences a sexual relationship with another person in the intervening period of separation, the periods when the parties were ‘involved’ are treated as discrete of relationships.
[124] McKone v Maretta (1999) DFC 95-213, [58].
I find that the parties’ periods of involvement from July 2001 until about mid 2007 constitute one relationship (not a series of discrete relationships) for the following reasons.
According to the respondent, the parties’ association with one another was characterised by frequent separation followed by reconciliation. However, each time the parties resumed their involvement with one another, they continued on from where the relationship had left off – they continued their routine of staying over at each other’s homes on a few occasions each week, they had meals at one another’s homes, holidayed together and, it would appear from various correspondence exchanged between the parties and from the applicant to the respondent’s son, each continued to hope that the other would commit to marriage. This continuity in the way the parties participated in their relationship indicates that it was one continuous relationship rather than a series of relationships, as the respondent would argue it was.
I note the authorities Thomas v Badger (supra) and Davies & Richardson (supra), which suggest that if the parties or either of them had a sexual relationship during a period of separation, this would apparently in their Honours’ respective views terminate the de facto relationship in NSW. It seems to me that the nature of the sexual relationship must be taken into account and logic (and modern mores) do not necessarily ascribe to a sexual act or acts, the significance attributed to it or them by their Honours. If such finality is part of their Honours’ rationes decidendi I respectfully disagree and decline to follow their Honours’ decisions. Though the parties separated in about August 2006 and commenced relationships with other people, I am unable to make a finding on the evidence that those relationships were more than sexual relationships. Furthermore, the applicant asserts that, during that period of separation, the parties still spent time together and during this time, the respondent attempted to kiss her and tell her that no one would love her like he does.[125] For reasons I stated earlier, I accept the applicant’s evidence. This would indicate that the periods from July 2001 until mid 2007 constitute one relationship. (The respondent “committed” himself to the pregnant mother of his second child in about mid 2007).
[125] Applicant’s affidavit, filed 7 May 2010 in ACT Supreme Court, [27] and [28].
However, even if I follow their Honours’ decisions that commencement of a sexual relationship with another person means that the parties’ relationship with one another is permanently terminated, I still find that the parties were in one domestic relationship from July 2001 until August 2006 for the reasons described at paragraph 127.
However, I am nevertheless satisfied that the domestic relationship continued after 2006 and in fact terminated in 2007 when the respondent “committed” himself to the pregnant mother of his second child.[126] I reiterate that I decline to follow the authorities which state that commencement of a sexual relationship with another person permanently ends the parties’ relationship. However, the respondent’s decision to commit himself to the mother of his child in about mid 2007 was more than simply a sexual liaison, at least on the uncontested evidence of the respondent. Accordingly, in accordance with Lipman v Lipman[127], whatever domestic relationship existed between the applicant and the respondent at that point ceased. A new domestic relationship began again afterwards in late 2007 or early 2008 but cannot properly, in my opinion, be regarded as part of the original domestic relationship.
[126] Respondent’s affidavit, filed 11 August 2010 in ACT Supreme Court, [66]-[67].
[127] Lipman v Lipman (1989) 13 Fam LR 1, 24.
On either the applicant’s or the respondent’s history of the relationship, I find that a domestic relationship existed for the requisite two year period.
Such a finding would necessitate the obtaining of leave to commence proceedings[128]. Although this was not raised as a substantive issue, if it were in contest, I would grant leave primarily because the parties continued (at least) in some sort of relationship until 2008 and the earlier commencement of proceedings would have been unrealistic – to say nothing of unromantic.
[128] Domestic Relationships Act 1994 (ACT), s 13.
There is no evidence to suggest that the respondent has adversely altered his position between 2008 when the proceedings should have been commenced, if the relationship had permanently ended in August 2006, and 2010 when the proceedings were in fact commenced. I am satisfied that greater hardship would be afforded to the applicant if leave were to be refused than to the respondent if leave were granted.
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[129], 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.
[129] (2007) DFC 95-408.
The issue of leave was not raised during the proceedings. When I became aware of its potential significance before delivery of these Reasons, I invited the lawyers (particularly those representing the respondent) to make submissions if they wished to do so about the question of whether leave might be granted at this stage of the proceedings. Neither party sought to make such submissions.
I am therefore satisfied that there was a domestic relationship between the parties and that it existed for at least two years; and I grant leave for the applicant to apply for an order for adjustment of property in accordance with s 13(2).
Division of Property
The provisions of s 15 of the Domestic Relationships Act require the Court to make an order adjusting the interests in the property of either or both of the parties to a domestic relationship ‘that seems just and equitable’ to the Court, having regard to the following matters:
(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.
S 15(1)(a) – Nature and duration of the relationship
It is to be noted that, in contrast with the Family Law Act any division of property made in respect to the domestic relationship involves, among other things, a consideration of ‘the nature and duration of the relationship’.[130] Such a consideration may operate to encourage the inclusion of relationships into the Court’s consideration. This suggests that a sporadic, episodic or occasional relationship may reflect less significantly in the contributions to be taken into account under s 15 of the Act.
[130] s 15(1)(a)
S 15(1)(b) – Financial and non-financial contributions
The property of the parties, as finally agreed, as is set out below:[131]
[131] Exhibit A15
| ASSETS | OWNERSHIP | VALUE |
| [Suburb P] property – proceeds of sale | Joint | $72,193 |
| [Suburb K] property | R | $455,000 |
| [Suburb H] premises | R | $172,500 |
| [Property 1] (QLD investment property) | R | $250,000 |
| [Property 2] (QLD investment property) | R | $210,000 |
| [Property 3] (QLD investment property) | R | $235,000 |
| [Property 4] | R | $630,000 |
| [AA] business | R | $463,325 |
| Shares | R | $70,368 |
| Savings | R | $3,032 |
| Household contents | R | $22,000 |
| Household contents | A | $1,000 |
| LIABILITIES | ||
| Loan over [Property 1] | R | $309,483 |
| NET ASSETS | $2,274,935 | |
| ADD BACK | ||
| For [Town D] property (sought by the applicant) | $64,750 | |
| $2,339,935 |
The applicant argues that the net asset pool is $2,339,935 and this includes the add back for the Town D property. The respondent contends there should be no add back for the Town D property and the net asset pool is $2,274,935.
The figure for the proceeds of the sale of Town D, or at least the amount to be included in the asset pool, was agreed (for the purposes of the hearing) at $64,750.[132] I accept counsel for the applicant’s submission that, absent any evidentiary explanation, that sum should be part of the assets, i.e. “added back”. (The respondent had the benefit of these funds). The respondent did not provide any evidence about the application of the proceeds of sale.
[132] Exhibit A15.
In proceedings in relation to the division of the property of parties to a marriage under the Family Law Act the High Court has ruled that either a global approach or an asset-by-asset approach is legitimate[133], however it would seem that the preferred approach seems to be that the assets of the parties and their contributions to them should be regarded ‘globally’ rather than on an item by item basis. This approach is consistent with the nature of marriage or marriage-like relationship under consideration and with the implicit agreement between the parties, to which I have referred previously, as to who should make financial or non-financial contributions.
[133] Norbis v Norbis (1986) 161 CLR 513.
However, in this matter, the relationship was not a traditional marriage-like relationship where the parties combined or partially combined their finances and accumulated properties together. Rather, it was a relationship in which the parties, though each hopeful of making a more permanent commitment to one another, kept their finances separate and did not live together but stayed over at each other’s homes on a few occasions each week. In circumstances such as these, it is not appropriate, in my opinion, to treat the contributions of the parties to all of the assets other than on an item by item basis.[134] In the end it may be a matter of considering the combined effects of all those contributions but the contributions may be different in respect of each of the assets under consideration.
[134] See for example, Stiller & Power [2011] FMCAfam 996.
I am conscious of the fact that the parties seek that, if there is an adjustment between them, it should be by a payment from the respondent to the applicant. I propose to begin by considering the contributions of the parties to various items of property as they were identified by the parties and in the submissions before me. I note that the contributions by the applicant to these properties were set out at paragraphs 21 to 69 above.
The determination of the percentage contribution in relation to each of the various assets cannot be mathematically precise because it involves the balancing of different forms of contribution at different times to different sorts of properties.
In my determination the percentages selected most closely represent what, in my opinion, constitute the value of the contributions made.
The business
The business was owned by the respondent before the relationship began. There is no doubt that his was the major expertise associated with the business. There is also no doubt that he was the one who was financially responsible for the business during the whole of the relationship.
It is clear from what is contained in paragraphs 25 to 29 above that there is no agreement about the extent and nature of the contributions made by the applicant to the respondent’s business. The applicant asserted that she assisted him by doing some bookwork; by, on one occasion, making what amounted to a calculation of the employees’ superannuation entitlements; by stacking and adjusting and unloading certain items of stock; depositing money for the business at the bank on some occasions; and doing research once in relation to anti-competitive behaviour and another time in relation to the prohibition of the sale of specific goods – but not much more. The regularity with which these tasks, limited though they may be, were carried out was a matter of dispute and again, as with other areas of dispute between the parties, I am inclined to the view that it is more likely than not that the truth lies somewhere between the assertions of each of them.
Even taking the applicant’s assertions at their highest it would seem that her contributions over the period of the parties’ association were relatively minor. It would be hard in percentage terms to set the contributions in relation to the conservation of the business (the acquisition of the business was made by the respondent) at more than a single digit contribution. This I find to be seven per cent.
In some cases involving marriages or relationships where the parties had lived together for almost all of the duration of the relationship, one party, through his or her contributions in a non-financial sense as homemaker or parent, might have been said to have provided the opportunity for the other to have made money or to have developed an asset or to have created an investment. Such a claim was not available to the applicant in this case. Although, her case at its highest point, claims that she cooked meals for the respondent and put those meals into containers so that he could take them with him to work, and took meals to the Suburb K property for the parties to eat during the working week, did some ironing and washing; she maintained a separate living space, she worked separately, there was no pooling of income, and the applicant was not involved in full-time maintenance of the parties’ joint home. Her contributions were identifiable, as she herself identified them in her evidence and were of the nature that I have suggested above.
Queensland investment properties
At some point the respondent determined that he wanted to purchase investment properties in Queensland. It was his decision to purchase in the Town R area.[135] He says he advised the applicant to do the same[136]. This last comment (which I accept the respondent made) identifies in part the separate nature of the investment and the fact that the purchases of the Town R properties were not regarded as joint projects. I have no doubt the parties at least contemplated that it would enure for the benefit of both in due course – if the relationship persisted. Nevertheless it was the respondent’s money that purchased the property; the respondent’s money that facilitated the paying of stamp duty, legal fees and the like and the applicant conceded with her customary forthrightness that her contribution really amounted to reviewing available properties on an internet site over a weekend (or perhaps a little longer) and discussing the matter with the respondent. The extent of that contribution is not in dispute. The applicant has never seen the properties. She has never visited the properties. She has never been involved in the leasing or other arrangements relating to their maintenance. She has not contributed to rates or any other outgoings in respect of the properties. In regard to this property both as to acquisition and conservation my assessment is that she has contributed five per cent.
[135]
[136] I do not doubt that there was discussion between the parties but I accept as generally truthful and accurate in this instance the account of the exchanges between the parties as it was related by the respondent.
The Suburb K property
This was the home of the respondent during the course of the relationship and before. The applicant made no contributions to the acquisition of the property, however, she did contribute to the maintenance of the property from time to time. It is conceded by the respondent that she did some painting and engaged in some upkeep of the property from time to time. There is no suggestion that the applicant was living consistently in the property and thereby maintained it by her physical efforts on a regular basis. There is equally no suggestion that her efforts in maintaining the property, such as they were, were of the nature of providing the respondent with an opportunity to otherwise earn money or develop other assets. The applicant’s claim that she paid for half the paint when the house was re-painted is not a significant financial contribution.
Her contributions to the Suburb K property and its conservation (she made no contribution to its acquisition) were more than her contributions to the Town R properties, and slightly more than her contributions to the business. In other words it would seem that her contribution to the Suburb K property was nine percent.
The Town D property
This property was acquired by the respondent and outgoings relating to this property were paid for by him as well. The applicant’s involvement in the conservation and improvement of the property was more significant than in relation to the other properties. I base this finding on the evidence of both of the parties and in particular I accept the applicant’s evidence about the tasks that she did in relation to the house. These tasks, however, were not major physical reconstructions but rather in the nature of relatively minor renovations – including preparing walls for painting, cleaning, marking out tile fittings, grouting, and choosing various fittings for the renovation – conducted over, I accept, a relatively lengthy period. Although counsel for the respondent sought to diminish the number of days and weekends involved in such renovations it seems to me there was sufficient evidence taken as a whole on this matter to say that the applicant’s contributions to this asset were more significant in labour, energy, planning and commitment than to any of the other items.
In addition, it would appear from the evidence of the respondent, which I accept, that during some visits to the Town D property the applicant spent time with, and participated in activities with the respondent’s son, thereby enabling the respondent to continue with renovation work.
As with her financial contributions to the Suburb K property, the applicant’s financial contributions to the Town D property were not significant. She purchased storage containers, mixing bowls, utensils, bed linen and doona covers.
I place the contributions of the applicant in relation to the Town D property at a higher level than those made to either the Suburb K property or the business and I find that her contributions in this regard were in the order of 12 per cent. Even in relation to this property her contributions were relatively minor when considered alongside the contributions of the respondent.
The Suburb P property
The Suburb P property was, as previously described, apparently determined by the parties to be the means of cementing their relationship, establishing their commitment to one another both financially and as a physical realisation of their relationship. The parties worked together for the property and by agreement the applicant put up the funds necessary for the five per cent deposit and the initial expenses. This amounted to $29,640 (=$28,000 deposit + $1,140 legal fees + $500 insurance expense). The applicant also paid $4,000 in mortgage repayments. Therefore the applicant’s total financial contribution to the Suburb P property was $33,640.
The respondent met some of the costs of mortgage repayments and also met the bulk of the renovation costs at Suburb P. According to the respondent, his renovation costs totalled about $120,000.[137] The respondent acknowledges that the applicant paid something towards the cost of renovations. However, it is impossible on the evidence to resolve precisely how much she paid.
[137] Respondent’s affidavit, filed 11 August 2010 in ACT Supreme Court, [152].
The Suburb P property was renovated by the parties and the applicant’s involvement is detailed at paragraphs 21 to 24 in these Reasons. Effectively the property remained as a joint project until the applicant finally announced that the relationship between them was terminally concluded in August 2008. The Suburb P property was maintained in part by the respondent thereafter and he made contributions to it. Subsequent to the termination of the relationship between the parties the property was sold and the net proceeds were in the order of $75,000.
There is a dispute about the extent of the physical involvement of the parties in the renovations. It was a joint project. I do not accept that the parties’ physical contributions should be regarded otherwise than as equal.
Although the respondent paid more of the mortgage repayments than the applicant, any difference in this regard should be set off against the respondent’s sole occupation of the property.
There was some argument and cross-examination directed to the fact that the respondent had failed to agree upon an interest-bearing deposit as a place in which to keep the money and that, accordingly, the funds that might have been available to the parties were diminished. No evidence was given about what that diminution might be and the respondent offered an explanation of sorts about to his failure to be involved. This explanation seemed to be that such an investment would have had little net effect on the parties. I do not make any finding that there was any ‘negative contribution’ by the respondent and furthermore, I do not agree that in a consideration of contributions I should take account of what has sometimes been described as “negative contributions” (unless it were analogously, with a Kowaliw v Kowaliw[138] waste argument under the Family Law Act. The conditions necessary to establish such a proposition in respect of the actions of the respondent in this instance are absent.)
[138] (1981) FLC 91-092.
Given the vagueness of the evidence, it is impossible to be precise. However, weighing all relevant factors as well as I can, I determine that the applicant contributed 35 per cent to the Suburb P property.
Other property
The parties agreed that each of them should retain any other property in his or her name – except where a financial adjustment is required by the respondent to the applicant. In my opinion there were no sufficient contributions by either of the parties to the assets of the other party (other than the assets already discussed above) or in reduction of the other’s liabilities, to require me to separate or further assess the contributions to those other assets, or to determine what in the circumstances would be a just and equitable division of these other items.
S 15(1)(c) – The contributions of either party to the welfare of the other or any child of the parties
As detailed in paragraphs 38 to 53, the applicant contributed physically to home duties and, more significantly, to the well-being of the respondent’s son. She had no legal obligation to do the latter. In my opinion, the respective contributions made by the applicant to the business, the Suburb K property, the Town D property and the Suburb P property should be adjusted upwards by a notional two per cent.
S 15(1)(d) – Section 19(2) considerations
I am to take into account the matters referred to in s 19(2) - as far as they are relevant.[139] Section 19 is a framework somewhat akin to s 75 of the Family Law Act. It is a section primarily directed to maintenance. Some of the factors contained within it however, (similarly to those in s 75(2)) might properly have a bearing on what might be just and equitable in the division or adjustment of the property of the parties.
[139] Domestic Relationships Act 1994 (ACT), 15(1)(d).
Each of the parties submitted that there should be an adjustment in favour of him or her as a consequence of the matters referred to in s 19(2).
Income, property and financial resources of each party
The preponderance of assets as between the parties, detailed in the table at paragraph 139, is and was with the respondent both before and after the relationship.
In her Financial Statement filed 9 September 2011, the applicant discloses that her average weekly income is $2,365, totally $122,980 annually.[140] This income comes from the applicant’s employment at the time of final hearing with government agency 1 on a 12 month contract basis.
[140] Applicant’s Financial Statement, Part D.
The respondent’s current income is somewhat unclear.
The respondent did not seek to rely upon a sealed copy of his Financial Statement at final hearing. An unsealed copy of his Financial Statement was provided by the respondent’s solicitors to the applicant’s solicitors on 26 March 2010, and a copy of this Financial Statement was tendered by the applicant.[141] This Financial Statement disclosed that the respondent was employed by AA and that his total weekly salary before tax was $850 per week.[142]
[141] Exhibit A5.
[142] Exhibit A5, Parts C and D.
Cross-examination revealed that an E-Bay account under the name of “[the respondent’s first name Ms S’s first name the nature of the AA business]” existed through which, the respondent says, his current partner, Ms S, sells AA’s stock. The respondent gives to Ms S “obsolete” stock that he is allegedly unable to sell in his store, and Ms S then puts those items on E-Bay for sale.
The respondent’s evidence was that it was Ms S, not he, who runs the E-Bay account, and that he had nothing to do with the E-Bay account other than to supply products to Ms S to sell. I find this evidence to be incredible. The name of the E-Bay account is “[the respondent’s first name Ms S’s first name the nature of the AA business]”[143] which indicates that the respondent has some involvement in this E-Bay account. Further, information provided about payment methods indicate that, if a customer were to pay by direct deposit, they should make the payment out to account name “[AA]”. I accept this shows that income from the sales on E-Bay is income received by the respondent through AA.
[143] Exhibit A14.
However, it is difficult to find precisely how much of the respondent’s income is made through sales on E-Bay. A document was tendered by the respondent which shows that in a period of approximately two months (August and September 2011), sales for customers who have provided feedback about products sold by “[the respondent’s first name Ms S’s first name the nature of the AA business]” total approximately $2,314. This figure does not take into account sales for customers who have not provided feedback and is not necessarily representative of the average monthly sales figure.
The respondent’s ability to finance debts indicates that whatever his income might be, it is adequate for his purposes.
So far as I am able to ascertain from the evidence, there is no discrepancy between the levels of income of the applicant and the respondent such as to justify any adjustment in favour of one party or another party under s 19(2).
Physical and mental capacity of each party for appropriate gainful employment
Each party has a physical and mental capacity for appropriate gainful employment.
While the applicant is currently only employed on a contractual basis for 12 months, I accept, based on her work history, that she will be able to secure gainful employment in the future. For the duration of the relationship, the applicant was employed by government agency 2 and also by government agency 3. At the commencement of the relationship, the applicant earned $67,000 per annum and by the end of the relationship in August 2008, the applicant was earning $117,000 per annum.[144] After the parties separated, the applicant was employed by various organisations which were managed under the auspices of government agency 2. Between April and December 2010, the applicant was employed by government agency 4 under a temporary contract. When that contract ended, the applicant took her 4 months recreation leave and long service leave, being paid leave, accumulated during her time with government agency 2. Shortly after her contract with government agency 4 ended, the applicant found employment with Company DD in March 2011. Her income from employment with that organisation was approximately $146,000 per annum. The applicant resigned from her position with Company DD in August 2011 when she accepted the offer from her current employer, government agency 1.[145]
[144] Applicant’s affidavit, filed 7 May 2010 in ACT Supreme Court, [79], [85], [186]-[188].
[145] Applicant’s Financial Statement, Part O, notes 1 and 2.
Although the respondent’s father in response to questions in cross-examination was somewhat sceptical of his son’s ability to run a business, the respondent has continued to run his business. Although profits do not appear to be large, he appears to enjoy a reasonable standard of living as a consequence of the business.
As was somewhat pointedly extracted in cross-examination by counsel for the applicant, the respondent was sufficiently confident in the future of his business to expend (on lease apparently) over $90,000 for the purchase of a Mercedes-Benz sports car. This was at a time when he already had a vehicle suited to his business and to his normal day to day activities. For the purposes of s 19(2) I accept the respondent’s own vote of confidence in his further future commercial skills.
Furthermore, aside from running the business, the respondent was employed by government agency 2 from, at least, the commencement of the relationship in 2001 until about late 2006 or early 2007.[146] The respondent was appointed as a Director of that government agency in 2003.
[146] Respondent’s affidavit, filed 11 August 2010 in ACT Supreme Court, [9] and Applicant’s affidavit, filed 7 May 2010 in ACT Supreme Court, [86].
Financial needs and obligations of each party
The applicant’s personal expenditure each week totals $1,909. Her weekly income exceeds this figure.
In the Financial Statement provided by the respondent’s solicitors to the applicant’s solicitors on 26 March 2010, the respondent had total liabilities of $764,000. This comprised a loan from National Australia Bank and credit card debts.[147] However, in the joint list of assets handed up at final hearing, the only liability identified by the respondent was a loan over the Town R property of $309,483. I accept that this is the only loan which the respondent is servicing.
[147] Exhibit A5, Part M.
The respondent also pays $100 each week in maintenance/child support for his child with Ms B, TT. His other personal expenses total $78 a week.
The responsibilities of either party to support any other person
Each of the parties has, it appears, re-partnered. The respondent’s current partner is involved at least in a minor way in the respondent’s business and is supported partly out of a subsidiary internet-based business involving the sale of apparently superseded stock on E-Bay. She has no other employment but the arrangements referred to are apparently regarded by both of them as a satisfactory method of her contributing to the relationship funds and also to provide for her own support.
The respondent has the obligation of supporting two children from other relationships, C aged 15 years[148] and TT aged about three years at the time of final hearing[149]. He does not claim that this is causing him any hardship and I do not see it as a basis for any adjustment between the parties.
[148] Respondent’s affidavit, filed 11 August 2010 in ACT Supreme Court, [18].
[149] Applicant’s affidavit, filed 7 May 2010 in ACT Supreme Court, [8].
The applicant is currently in a relationship with Mr CC. However, she is about to move to South Australia and this may bring about the termination of that relationship. The financial consequences of the applicant’s involvement in this union are not therefore likely, in the overall course of things, to be relevant and in any event, I give little weight to them in my determinations.
No other s 19(2) factors are relevant.
Taken overall in my consideration of the factors to be taken into account under s 19(2), there is a discrepancy in the property owned by of each of the parties. In particular the respondent has much more property than the applicant. However, aside from the three Queensland investment properties and the Town D property, the respondent’s property was acquired by him before the relationship with the applicant began. Given the overriding requirement to do justice and equity, it does not seem to me that it would be appropriate to adjust the determinations I made previously about the contributions that each party made to the assets and interests in property.[150]
[150]So far as I can recall the respondent made no claim to have contributed to any of the assets of the applicant other than the Suburb P property which I have previously dealt with.
Summary
Taking the individual assets as set out above and applying the percentage contributions of the applicant, which I determined above, results in the applicant being entitled to the following:
Suburb P proceedings
37 (= 35 + 2) per cent of $72,193 = $26,711[151]
Suburb K property
11 (= 9 + 2) per cent of $455,000 = $50,050
Queensland investment properties
(less loans)5 per cent of $385,517 = $19,276
The business
9 (= 7 + 2) per cent of $463,325 = $41,699
Town D property
14 (= 12 + 2) per cent of $64,750 = $9,065
[151] All figures are rounded to the nearest dollar.
According to these calculations, the applicant is entitled to $146,801. In the overall scheme of the relationship of the parties it would seem to me that it would be just and equitable if I were to order that she receive the whole of the proceeds of the sale of Suburb P together with an additional sum of $74,608. Any interest accumulated in the account of J Law Firm above $72,193 should be shared between the parties in proportion to their contributions to the Suburb P property, i.e. the applicant should receive 37 per cent thereof. I order accordingly.
I certify that the preceding one hundred and ninety-two (192) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks.
Legal Associate:
Date: 16 March 2012
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