Chancellor & McCoy - [2016] FCCA 53

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHANCELLOR & MCCOY

[2016] FCCA 53

Catchwords:
FAMILY LAW – Property – same sex de facto relationship for some 27 years – where the parties never intermingled their finances – where the parties acquired properties in their own names – where the parties were unaware of the other party’s financial situation – where there were no joint accounts – where there were no mutual wills – Held that it is not just and equitable for an alteration of property interests to be considered – Held that the applicant’s property application be dismissed.

Legislation:

Family Law Act 1975, ss.75, 79, 90SM, Pt VIIIAB

Bevan & Bevan [2013] Fam CAFC 116
Chapman & Chapman (2014) FLC 93-592
Fielding and Nichol [2014] FCWA 77
Hickey v Hickey & Attorney-General of the Commonwealth (Intervener) (2003) FLC 93-143
Stanford v Stanford (2012) 293 ALR 70

Applicant:

MS CHANCELLOR

Respondent:

MS MCCOY

File Number:

BRC 1650 of 2013

Judgment of:

Judge L. Turner

Hearing dates:

17 August 2015 and 18 August 2015

Date of Last Submission:

18 August 2015

Delivered at:

Brisbane

Delivered on:

25 January 2016

REPRESENTATION

Counsel for the Applicant:

Mr Jordan

Solicitors for the Applicant:

Phillips Family Law

Counsel for the Respondent:

Mr Page

Solicitors for the Respondent:

Feeney Family Law

FINAL PROPERTY ORDERS

That the application for de facto property division filed by the applicant Ms Chancellor on 8 March 2013 is hereby dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Chancellor & McCoy is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 1650 of 2013

MS CHANCELLOR

Applicant

And

MS MCCOY

Respondent

REASONS FOR JUDGMENT

Introduction

The parties are in dispute as to the division of property after a same sex relationship spanning some 27 years.

Issues

The applicant (Ms Chancellor) is seeking a property division.
The respondent (Ms McCoy) maintains that a property division should not occur and is seeking orders that each party retain the property and liabilities in their respective possession.

Evidence

In considering these issues regard has been had to the following:-
a)The material as marked on the court file.
b)The exhibits.
c)The oral evidence of the parties.
d)The relevant legislation.
e)The relevant authorities.
Both parties are legally represented.
For Ms Chancellor the following witnesses were called and cross examined:-
a)Ms Chancellor.
For Ms McCoy the following witnesses were called and cross-examined:-
a)Ms McCoy.
b)Mr C (the brother).
c)Ms B (the mother).
d)Mr M (work colleague).
Mr C was not required for cross-examination.
I find the witnesses to be credible.
Findings of fact are made on the balance of probabilities having regard to the evidence and in what follows statements of fact constitute findings of fact.

Relevant facts

Before considering the law, it is useful to capture the relevant facts:-
a)Ms Chancellor is aged 59 and is employed as a (occupation omitted).
b)Ms McCoy is aged 55 and has retired from (occupation omitted) and is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chancellor & McCoy

Details

AGLC: Chancellor and McCoy [2016] FCCA 53
Case: [2016] FCCA 53
Decision Date: 25 January 2016

CaseChat Overview and Summary

This matter concerned a dispute between Ms Chancellor and Ms McCoy regarding the division of property interests. The case was heard by L. Turner J.

The court was required to determine whether it would be just and equitable to make an order altering the property interests of the parties, and if so, what those alterations should be. This involved assessing the financial and non-financial contributions made by each party during the relationship, particularly in relation to properties owned by Ms McCoy.

L. Turner J found that it would not be just and equitable to alter the property interests. This conclusion was based on the parties' consistent conduct of their affairs with a complete separation of finances over approximately 27 years, evidenced by the absence of joint bank accounts, intermingling of finances, or joint financial decision-making. The court noted that while Ms Chancellor made payments to Ms McCoy, these were considered financial assistance rather than contributions that increased the value of Ms McCoy's properties, as there was a lack of evidence to support such an increase. Furthermore, the court found that neither party was hindered in their individual financial decision-making and that Ms Chancellor had retained significant assets, including properties, vehicles, and superannuation, and possessed the capacity to accumulate further wealth.

Consequently, the court made no order altering the property interests of the parties.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Lack of evidencea)There was lack of evidence from Ms Chancellor as to the alleged contributions made by Ms Chancellor to the Property M and Property A property, with no receipts for work done, no bank statements showing withdrawals and no affidavits by friends or family members as to work performed on these properties.b)There was lack of evidence as to whether the financial and non-financial contributions made by Ms Chancellor to the Property M and Property A property increased the value of the properties.c)There was lack of evidence as to what the parties spent their respective monies on after the joint expenses were paid and Ms Chancellor paid the fortnightly sum to Ms McCoy. I find, having considered the evidence and in particular the factors as discussed above, that it would not be just and equitable to make an order altering the property interests in this matter. I make this finding based on the following:-a)The parties conducted their affairs in such a way that neither party would or could have acquired an interest in the property owned by the other because:-i)There was no intermingling of their respective finances.ii)The parties did not have a joint bank account.iii)Each party acquired property in their own name with there being little exchange of the detail of these acquisitions to the other party.iv)Each party remained responsible for their own debts.v)Each party was able to use the remainder of their wages as they chose without explanation or accountability to the other party.vi)There was a complete lack of joint financial decision making.vii)There was the absence of sharing of any information with each other as to their financial situation or individual decision making.viii)Neither party made provision for the other party in the event of their death either by way of will, beneficiary to superannuation funds or beneficiary to life insurance policies.ix)The parties at the time of separation were unaware as to the worth of the assets acquired by each of the parties during the relationship and the decisions that had been made in respect to the acquisition of these assets.b)Whether this separation of finances was initially a conscious decision by one party or both parties is irrelevant; what is relevant is that the parties continued to conduct their relationship without intertwining their finances consistently for some 27 years.c)The payment of monies by Ms Chancellor to Ms McCoy of $100 to $120 per fortnight for most of the relationship, whether classified as mortgage repayment (Ms Chancellor’s terminology) or rent or board (Ms McCoy’s terminology), I find, given the small amount of payment in respect to the overall size of the pool accumulated by Ms McCoy, cannot be viewed as financial intermingling, but as financial assistance to the other party as the home owner who provided housing for the parties to live in during the entirety of the relationship.d)As there is no evidence that the financial and non-financial contributions made by Ms Chancellor to the Property M property and the Property A property improved the value of these properties, then no equitable interest by Ms Chancellor in the properties has been established.e)Each party had the opportunity during the relationship to financially plan for their future given their profession and employment histories.f)There was no evidence to support that either party was hindered in their individual financial decision making during the relationship.g)For many years Ms Chancellor appeared to be in a more advantageous position as Ms Chancellor did not own real estate or gave evidence of servicing debts; but this is not reflected in the pool of assets each party has retained since separation.h)It is unfair for Ms McCoy, who has taken steps to maximise her future wealth, to have to share that wealth with Ms Chancellor who did not invest as wisely; especially in regard to maximising her superannuation benefits.i)Ms Chancellor has demonstrated her continuing struggle with financial matters given the spending of the inheritance and the increase in her mortgage over the Property B property since separation, despite the earning of an income.j)Although the alteration of property interests has been denied due to it not being just and equitable for such an alteration to take place, Ms Chancellor has still been left with the significant assets accumulated by her during the relationship, consisting of two houses, several motor vehicles and superannuation.k)Further, Ms Chancellor has the capacity, unlike Ms McCoy, to accumulate more assets, with her ability to work and her ability to contribute to her superannuation fund.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Separation of finances and financial independencea)The parties did not have a joint bank account.b)Ms Chancellor, when unemployed between jobs for 4 to 6 weeks, withdrew monies from her superannuation fund to live off, whilst residing with Ms McCoy at the Property M property.c)Ms Chancellor borrowed $4,000 from Ms McCoy’s parents to purchase a boat in her name. The monies were repaid with interest by Ms Chancellor to Ms McCoy’s parents.d)Other than the financial contributions made by Ms Chancellor to the Property M property, Ms McCoy paid for all costs associated with all renovation, repair and maintenance of the property.e)Other than the financial contributions made by Ms Chancellor to the Property A property, Ms McCoy paid for all costs associated with the building of the house and the renovation, repair and maintenance of the property.f)Ms Chancellor was solely responsible for all costs associated with the renovations, repair and maintenance of the Property B property.g)Since separation the parties have been solely responsible for all costs associated with their respective properties.h)The $25,000 paid by Ms Chancellor to Ms McCoy from the inheritance, I accept, was by way of gift out of the estate of her uncle, who from time to time had been cared for by the parties during the relationship.i)Otherwise, Ms Chancellor has had sole use of the inheritance from the uncle apart from paying for a short holiday for the parties in Melbourne.j)Since separation the parties have both spent excessive amounts of money in litigation and have eaten into their financial resources to meet those costs with Ms Chancellor increasing her indebtedness on the Property B property and Ms McCoy drawing down on her superannuation and relying on her family. The (omitted) businessa)The parties for some nine months operated a (omitted) business with Ms Chancellor’s brother.b)The parties worked after hours at the business.c)Neither party financially contributed to the business.d)Neither party received a wage from the business. Lack of future plans or goalsa)The parties did not during the relationship discuss or execute mutual wills which left property to each other.b)The parties did not name each other as beneficiaries on superannuation policies.c)There is no evidence of life insurance policies where the other party was named as beneficiary.d)Ms Chancellor was not involved in any discussions with Ms McCoy’s parents as to the various cash advances made to Ms McCoy and how that money would, if required, be repaid.e)There was lack of evidence as to whether the parties would share their assets or superannuation upon retirement.f)There was lack of evidence as to the future plans the parties may have had or goals that might have been shared had the parties not separated.g)It was never explained as to how the parties would spend their retirement given that Ms McCoy’s parents lived with the parties and the Property B property was being rented at reduced rent to Ms Chancellor’s sister.