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

1. 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

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

Issues

1. The applicant (Ms Chancellor) is seeking a property division.

2. 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

1. 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.

2. Both parties are legally represented.

3. For Ms Chancellor the following witnesses were called and cross examined:-

   a)Ms Chancellor.

4. 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).

5. Mr C was not required for cross-examination.

6. I find the witnesses to be credible.

7. 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

1. 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 caring for her elderly parents.

   c)In 1982 the parties commenced a same sex relationship.

   d)At the time of the relationship Ms Chancellor was a (occupation omitted) at (employer omitted) and Ms McCoy was a (occupation omitted) at (employer omitted).

   e)In 1983 Ms McCoy purchased in her name only a house property at Property M (the Property M property) for approximately $51,000 using deposit moneys of $27,000 together with a mortgage.

   f)In 1983 the parties commenced cohabitation in the Property M property with Ms Chancellor contributing financially to the household.

   g)Between 1983 and 1984 the parties renovated the Property M property with Ms McCoy providing the funds and Ms Chancellor assisting with the labour.

   h)In 1984 Ms Chancellor transferred to (employer omitted) and Ms McCoy transferred to (employer omitted) as (occupation omitted).

   i)In late 1984 Ms McCoy’s parents provided $35,000 to payout the mortgage on the Property M property.

   j)In 1985 Ms Chancellor was transferred to (employer omitted) in (omitted).

   k)In (omitted) 1985 Ms Chancellor resigned from (employer omitted) and after a period of 4 to 6 weeks obtained employment at (employer omitted) in (omitted).

   l)During the 4 to 6 weeks Ms Chancellor painted the deck on the Property M property.

   m)In mid-1986 Ms McCoy sold the Property M property for $62,000 and used approximately $51,000 to purchase land in her name only at Property A (the Property A property).

   n)Between 1986 and 1987 the parties lived with Ms McCoy’s parents during the week and in a small cottage on the Property A property on weekends.

   o)In 1987 Ms McCoy borrowed $45,000 from her parents to build a house on the Property A property.

   p)In 1987 Ms McCoy made a will appointing her parents as the sole executors and beneficiaries.

   q)In 1987 the parties moved into the Property A property to which Ms Chancellor contributed financially to the household.

   r)In late 1989 Ms McCoy’s brother started a (omitted) business called (omitted) and Ms Chancellor’s uncle provided $100,000 to fit out the (business omitted) and finance the business.

   s)The parties worked outside of (omitted) hours at the (omitted) business but did not receive wages.

   t)In 1990 Ms Chancellor was appointed as (occupation omitted) at (employer omitted) and Ms McCoy was appointed as (occupation omitted) at (employer omitted).

   u)In (omitted) 1990 the (omitted) business was closed down and the (omitted) equipment was sold for $75,000.

   v)From the sale proceeds Ms Chancellor’s uncle received $25,000 and gifted to Ms Chancellor $50,000.

   w)In 1993 Ms McCoy was appointed as (occupation omitted) at (employer omitted).

   x)Between 1993 and 1999 Ms McCoy acquired shareholdings from her parents which were later gifted to Ms McCoy.

   y)In 1996 Ms McCoy was appointed as (occupation omitted).

   z)In 1997 Ms McCoy’s parents moved into the Property A property.

   aa)In (omitted) 1998 Ms McCoy acquired monies from her parents to purchase a Toyota Landcruiser motor vehicle (Toyota Landcruiser).

   bb)In (omitted) 1999 Ms McCoy entered into a Flexible Remuneration Package which allowed her to make additional voluntary superannuation contributions and salary sacrifice.

   cc)In (omitted) 2002 Ms Chancellor purchased in her name only a house property at Property B (Property B property) for $187,000 using monies from her uncle from the sale of the (business omitted) equipment as deposit and funding the remainder through a mortgage.

   dd)In (omitted) 2002 the Property B property was rented to Ms Chancellor’s sister at a reduced rent.

   ee)Between 2002 and 2003 the parties renovated the Property B property with Ms Chancellor providing the funds and Ms McCoy assisting with the labour.

   ff)In (omitted) 2006 Ms Chancellor was appointed as (occupation omitted) at (employer omitted) at (omitted).

   gg)In 2006 Ms McCoy renovated the Property A property, including the installation of a pool, through funds acquired from Ms McCoy’s parents and Ms McCoy’s own savings.

   hh)In 2006 Ms McCoy acquired a (omitted) Bank Line of Credit for $150,000.

   ii)In (omitted) 2010 Ms Chancellor’s uncle passed away.

   jj)In or around (omitted) 2010 Ms McCoy purchased a bobcat for $22,000.

   kk)In December 2010 the parties separated under the one roof.

   ll)In (omitted) 2010 Ms McCoy took leave from (occupation omitted).

   mm)In (omitted) 2011 Ms McCoy purchased a second hand trailer for $1,000 and a tip truck for $10,000.

   nn)In (omitted) 2011 Ms Chancellor received an inheritance in excess of $560,000 from her uncle’s estate which included a property at Property E (the Property E property) and cash of $165,000.

   oo)In (omitted) 2011 Ms McCoy purchased a half interest using the (omitted) Bank Line of Credit in a (omitted) Boat (the boat) with her brother.

   pp)In December 2011 Ms Chancellor moved out of the Property A property.

   qq)In (omitted) 2012 Ms McCoy repartnered with Ms S.

   rr)In November 2012 the parties attended private mediation and agreement was reached but never finalised into consent orders.

   ss)In March 2013 Ms Chancellor commenced court proceedings to proceed out of time for a de facto property division.

   tt)In April 2013 Ms McCoy retired.

   uu)In or around April 2013 Ms Chancellor obtained a Home Loan Overdraft for $50,000 over the Property B property.

   vv)In April 2013 Ms McCoy drew down $96,000 from her superannuation which was used to pay out the (omitted) Bank to pay for legal costs and living expenses.

   ww)In July 2013 leave was granted for Ms Chancellor to proceed out of time.

   xx)In July 2013 Ms McCoy appealed the decision to proceed out of time.

   yy)In or around September 2013 Ms McCoy drew down $60,000 from her superannuation to purchase a new car for $37,477, to pay legal costs, to pay living expenses and to purchase a second hand (omitted) float for $6,500.

   zz)In or around October 2013 Ms McCoy traded in the (omitted) float and paid cash of $12,000 to purchase a second hand Trailer Co Float.

   aaa)In or around November 2013 Ms Chancellor increased the Home Loan Overdraft to $90,000.

   bbb)In November 2013 the appeal was dismissed.

   ccc)In or around February 2014 Ms McCoy drew down $20,000 from her superannuation to meet costs associated with the boat, for legal costs and living expenses.

   ddd)In March 2014 the parties attended mediation but no agreement was reached.

   eee)In April 2014 Ms McCoy made an application for the judge to be disqualified. The application was unsuccessful.

   fff)In or around May 2014 Ms McCoy sold her share of the boat to her brother for $60,000.

2. As at the time of the final hearing:-

   a)Ms McCoy is living and caring for her parents at the Property A property.

   b)Ms Chancellor is (occupation omitted).

   c)Ms Chancellor lives with family during the week and at the Property E property on weekends.

3. Consideration will now be given to the law.

The law

1. In determining de facto property matters consideration must be had to Part VIIIAB of the Family Law Act 1975.

2. A clear framework exists in determining property division.

3. The first question that must be asked is articulated by the High Court in Stanford v Stanford (2012) 293 ALR 70 at [79] and [80] is whether:

   “it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.”

4. If answered in the affirmative, then the matter can proceed to a property division, applying the various principles.

5. Consideration must be given as to whether a global or asset by asset approach is to be adopted.

6. The four step process to be applied in accordance with the Full Court decision of Hickey v Hickey & Attorney-General of the Commonwealth (Intervener) (2003) FLC 93-143 at [39] which can be summarised as follows:-

   a)Identify and value, as at the date of the hearing, the parties’ property, liability and financial resources;

   b)Identify and assess the parties’ contributions pursuant to Section 79 of the Family Law Act 1975;

   c)Identify and assess the parties’ ongoing needs taking into account the relevant factors relevant under s.79 and s.75(2); and

   d)Consider the effect of the above and resolve what order is just and equitable in all the circumstances of the case.

Application of the law

The question to be considered as set out in Stanford

The proposals

1. Ms Chancellor submits that this was a long de facto relationship during which time both parties contributed to the large property pool and therefore it is just and equitable for the court to consider a property division.

2. Ms McCoy submits that although the parties were in a long de facto relationship the parties’ finances were kept separate with each party accumulating their own financial pool and therefore it would not be just and equitable for the court to consider a property division.

The law

1. The High Court in Stanford recognises that in the majority of matters the circumstances will immediately lead the court to the conclusion that it is just and equitable to proceed to a property division stating at [42]:-

   “In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s. 79(4).”

2. But if faced with the situation, as in this matter, where it is raised by one party that a property division would not be just and equitable the High Court in Stanford provides guidance as to what needs to be considered in determining just and equity:-

   “[36] The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations.  It does not admit of exhaustive definition.  It is not possible to chart its metes and bounds.”

   “[40]…whether making a property settlement order is “just and equitable” is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4).  The power to make a property settlement order must be exercised “in accordance with legal principles, including the principles which the Act itself lays down”. To conclude that making an order is “just and equitable” only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.”

3. The issue of just and equitable was further explored by the Full Court in Bevan & Bevan [2013] Fam CAFC 116 at [84]:-

   “[83] Just as the expression “just and equitable” does not admit of exhaustive definition, it is not possible to catalogue the “range of potentially competing considerations” that may be taken into account in determining whether it is just and equitable to make an order altering property interests. However, in our view, it would be a fundamental misunderstanding to read Stanford as suggesting that the matters referred to in s 79(4) should be ignored in coming to that decision. Indeed, such a reading would ignore the plain words of s 79(4), which make clear that in considering “what order (if any)” to make, the court must take into account the matters referred to in that subsection.”

   “[85] This requirement to consider the s 79(4) matters in determining whether it is just and equitable to make any order provides fertile ground for potential conflation of the two different issues, which the High Court has warned against.  However, this potential will not be realised in many cases because of what the plurality said at [42] about the “just and equitable” requirement being “readily satisfied”.  But there will be a range of cases, of which arguably the present is a good example, where determining whether it is just and equitable to make any order altering property interests will not be so clear cut and will therefore require not only separate but very careful deliberation.”

4. In the first instant decision of Fielding and Nichol [2014] FCWA 77 Thackray J provides a thorough analysis of the case law since Stanford and Bevan (which I do not intend to repeat) as what must be taken into account in determining what is just and equitable.

5. After much discussion in essence His Honour concluded at [51] citing the Full Court decision of Chapman & Chapman (2014) FLC 93-592 that whilst a judge is not “obliged to take into account the matters in s79(4)” then a judge is at “mere liberty” to do so in determining whether it is just and equitable to make any order altering property interests.

6. Section 79(4) (which refers to alteration of property interests in matrimonial matters) is the equivalent to section 90SM (which refers to alteration of property interests in de facto property matters).

7. Thackray J concluded in Fielding and Nichol that it would not be just and equitable to make any order altering property interests and subsequently ordered that the application for property settlement be dismissed.

The decision of Fielding and Nichol

1. Ms McCoy relies heavily on the decision of Fielding and Nichol in support of her position.

2. Ms Chancellor submits that the facts in Fielding make it clearly distinguishable from the facts in this matter and therefore the case has no application to these proceedings.

3. I will now consider the distinguishing features and the commonalities between the facts in this matter and that of Fielding.

4. The distinguishing features are as follows:-

   a)In Fielding, the relationship lasted 12 years whereas in this matter the relationship lasted in excess of 27 years.

   b)In Fielding, the parties were older (74 and 66) whereas in this matter the parties are younger and of similar ages (59 and 55).

   c)In Fielding the credibility of one party was an issue with Thackray J stating at [7] of the de facto husband that “I was less inclined to accept his evidence over that of the wife in relation to those relatively few matters where there was any important difference.”

   d)In Fielding the parties had a joint account for some of the expenses whereas in this the parties did not have a joint account.

   e)In Fielding there was an absence of direct financial contributions made by the de facto husband to the de facto wife’s real property whereas in this matter Ms Chancellor maintains that direct financial contributions were made.

5. The common features are as follows:-

   a)Each couple were involved in a de facto relationship.

   b)Neither couple had children.

   c)When the parties commenced cohabitation the parties lived in a house owned and in the name of one party only.

   d)In both cases the parties owned real property in their names only and were responsible for any expenditure on their own real properties.

   e)In both cases the parties maintained their finances almost entirely separately.

   f)In both cases the parties contributed almost equally to household bills and groceries.

   g)In both cases the parties did not execute wills leaving their estate to the other party.

   h)In both cases the parties made non-financial contributions to the other’s party’s property.

   i)In both cases the parties lived together post separation.

   j)In both cases the parties at separation divided up those few items that had been acquired jointly.

1. Having considered the similarities and differences between Fielding and this matter, I find that the case of Fielding and Nichol is an authority which must be given consideration in the determination of this matter.

2. I will now turn to the question as to whether it is just and equitable to proceed to a determination of altering property interests between the parties.

Just and equitable

1. Whilst it is in the court’s discretionary power to consider what is just and equitable with the relevant authorities providing guidance as to the pathway that must be followed in reaching a finding as to what is just and equitable, one must not lose sight as to what the terms “just” and “equitable” actually mean.

2. The word “just” is defined in the Macquarie Australian Encyclopedic Dictionary as:-

   “1. actuated by truth, justice and lack of bias….2. in accordance with true principals; equitable; even handed…..3. based on right; rightful; lawful….4. agreeable to truth or fact; correct…..”

3. The word “equitable” is defined in the Macquarie Australian Encyclopedic Dictionary as:-

   “1. the quality of being fair and fair or impartial; fairness and impartiality….2. that which is fair and just…”

4. I will give due consideration to the definitions of “just” and “equitable” when determining whether this matter is to proceed to an alteration of property interests.

The property pool in this matter

1. That concept of what is fair and unfair is a common theme in this matter.

2. To understand why, consideration must be given to the current de facto property pool and who owns what.

3. Taking into account the agreed major assets (based on valuations) and the existing liabilities (excluding the alleged loan from Ms McCoy’s parents) the property pool as at the current date is held as follows:-

Asset	Ms Chancellor	Ms McCoy
Property A property	650,000
Property B property	385,000
Property E property	350,000
(omitted) shares	7,940
(omitted) shares	71,878
(omitted) Shares	6,410
(omitted) shares	3,002
(omitted) shares	7,450
BMW motor vehicle	17,000
Boat	4,250
Toyota Prado	30,200
Toyota Skid loader	14,750
Isuzu truck	9,000
Tools and equipment	6,250
Horse float	12,000
(omitted) Superannuation	204,177
(omitted) Super	887,724
TOTAL	968,367	1,698,664
Liabilities
(omitted) Bank	91,996
(omitted) Bank	155,980
TOTAL	247,976
TOTAL NET ASSETS	720,391	1,698,664

1. The perception of Ms Chancellor is, if there is no alteration of the property interests that it is unfair after such a long relationship that Ms Chancellor receive property worth substantially less than half of the value of property to be retained by Ms McCoy.

2. The perception of Ms McCoy is, if there is an alteration of the property interests that it is unfair that Ms Chancellor should share in the wealth which has been accumulated by Ms McCoy alone when there has been no intermingling of financial lives.

3. I must now, as required in Bevan conduct a “separate but very careful deliberation” in determining whether it is just and equitable to make any order altering property interests.

A separate but very careful deliberation of this matter

1. In conducting a separate but very careful deliberation of this matter, I find that there are several salient factors in this matter which assist in the determination of whether it is just and equitable to make an order altering property interests.

2. I will now set out the factors.

3. Nature of the parties

   a)The parties are mature, educated and intelligent.

   b)The parties are high achievers in their profession.

   c)The parties are both (occupations omitted) and in the absence of evidence to the contrary, appear to have had similar employment conditions and opportunities.

   d)Both parties were employed full time during the relationship, except for a 4 to 6 week period where Ms Chancellor was between jobs.

   e)Whilst presenting as very different in character, there is no suggestion that one party was overbearing of the other or that there was any power imbalance in their relationship.

4. Acquisition of property

   a)During the relationship the parties utilised their own funds and resources to acquire real property in their own name.

   b)Ms McCoy first purchased the Property M property.

   c)After the sale of the Property M property, Ms McCoy purchased and built a house on the Property A property with financial assistance from her parents.

   d)After a number of years Ms Chancellor purchased the Property B property and through her uncle’s inheritance obtained the Property E property.

   e)Smaller purchases such as cars and boats were also acquired individually utilising their own funds.

   f)The evidence supports that the only items purchased jointly and at equal costs were:-

   i)Tinting for the windows in the extension on the Property A property;

   ii)Blinds for the extension on the Property A property;

   iii)A flat screen TV;

   iv)A recreational vehicle (which no longer exists);

   v)A camper trailer (which was retained by Ms Chancellor);

   vi)A ride on mower (which was sold during the relationship); and

   vii)Some items of furniture (which were shared and distributed at separation).

5. Direct financial contributions to each other’s real property

   a)The evidence supports that Ms Chancellor made the following direct financial contributions to improvements on the Property M property:-

   i)Gift of a lead light window.

   b)The evidence supports that Ms Chancellor made the following direct financial contributions to the house building and improvements on the Property A property:-

   i)The land clearing ($680).

   ii)Paint ($499).

   iii)Blinds ($1063).

   iv)Purchase of wire, chain wire, star pickets and white wire.

   v)Curtains for Ms Chancellor’s room.

   c)The evidence supports that Ms McCoy made no financial contributions to the Property B property.

6. Indirect financial contributions to each other’s real property

   a)The evidence supports that Ms Chancellor made the following indirect financial contributions to the improvements on the Property M property:-

   i)Her father purchased metal and built the balustrading on the deck.

   b)The evidence supports that Ms Chancellor made the following indirect financial contributions to the house building and improvements on the Property A property:-

   i)Family and friends helped with labour.

   ii)Ms Chancellor helped with labour.

   iii)At times Ms Chancellor did all the domestic chores to enable Ms McCoy to do labour.

   c)The evidence supports that Ms McCoy made the following indirect financial contributions to the maintenance and repair of the Property B property:-

   i)Labour.

7. Sharing of day to day living expenses

   a)During the whole of the relationship Ms Chancellor lived in properties (firstly the Property M property then the Property A property) owned by Ms McCoy.

   b)Ms Chancellor made the following contributions:-

   i)During most of the relationship Ms Chancellor paid $100 to $120 a fortnight Ms McCoy.

   ii)Ms Chancellor paid for half of the groceries.

   iii)Ms McCoy paid for bills on MasterCard in order to obtain points and Ms Chancellor reimbursed her in cash for her half share of the bills.

   iv)Ms Chancellor paid a total of $4,600 towards house insurances and Ms McCoy paid a total of $11,700 towards house insurances for the Property M and Property A properties.

8. Separation of finances and financial independence

   a)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.

9. The (omitted) business

   a)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.

10. Lack of future plans or goals

    a)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.

11. Lack of knowledge as to the financial situation of the other party

    a)The evidence supports that Ms Chancellor lacked knowledge as to:-

    i)What money Ms McCoy had at the commencement of the relationship.

    ii)The amount of money being contributed to Ms McCoy’s superannuation fund.

    iii)How the salary sacrifice worked in respect to Ms McCoy’s superannuation.

    iv)When Ms McCoy commenced contributions to her superannuation fund.

    v)When the Property M property was subject to a mortgage and when that money was paid out by Ms McCoy’s parents.

    vi)Ms McCoy making out a will in favour of her parents.

    vii)How much Ms McCoy paid to purchase the Property A property land.

    viii)How much Ms McCoy paid for the house and extension to the house on the Property A property.

    ix)The extent of the monies provided by Ms McCoy’s parents.

    x)The purpose of the (omitted) Bank Line of Credit.

    xi)How Ms McCoy acquired her share portfolio.

    xii)What savings Ms McCoy had.

    b)The evidence supports that Ms McCoy lacked knowledge as to:-

    i)What assets Ms Chancellor had at the commencement of the relationship.

    ii)What happened to the sale proceeds of the (omitted) business.

    iii)How Ms Chancellor acquired the deposit for the Property B property.

    iv)Whether Ms Chancellor was contributing to her superannuation fund.

    v)What savings Ms Chancellor had.

    vi)What property Ms Chancellor had as at the date of separation.

12. Lack of evidence

    a)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.

Conclusion

1. 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.

2. 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.

3. I therefore order that Ms Chancellor’s application for de facto property division be dismissed.

Final comment

1. This has been a long and difficult matter and I have no doubt that Ms Chancellor will find the outcome hard to accept.

2. It is easy to assume that where parties have been together in a recognised legal relationship, whether a marriage or a de facto relationship, and during that relationship the parties have accumulated property, then it automatically flows that a property settlement will occur following separation.

3. In the majority of cases this is true.

4. But as the High Court in Stanford was quick to point out this is not always the case.

5. There are matters due to their particular facts which cannot fall within that assumption and where it is not just and equitable to progress to an alteration of property.

6. Granted, these cases are in the minority.

7. But being in the minority does not mean that it is to be glossed over lightly.

8. There were many indicators in this matter that attracted the principals in Stanford; the lack of financial intertwining, the lack of financial planning for the future, the evident separation of finances and the continued individual ownership of property; just to name a few.

9. Whilst Ms McCoy adopted this position since the commencement of the proceedings some 2½ years ago, I must comment that it was only after all the evidence was presented at the final hearing and after a comprehensive analysis of the material by the court that the outcome has crystallised.

10. Ms McCoy needs to keep this in mind when considering a costs application.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge L. Turner

Date:  25 January 2016