Chapman v Chapman

CHAPMAN v CHAPMAN
[2000] SASC 195

Full Court: Doyle CJ, Debelle and Nyland JJ

DOYLE CJ. I agree that the appeal should be dismissed for the reasons given by Debelle J. There is nothing that I wish to add to those reasons.
DEBELLE J. This is an appeal from orders made by a judge in the District Court concerning the division of property held by a man and a woman who lived in a defacto relationship for 26 years. They had always been known as Mr and Mrs Chapman. I will refer to the parties respectively as Mr and Mrs Chapman. Mrs Chapman is the appellant. This claim concerns a relationship which had terminated before the De Facto Relationships Act, 1996 came into operation and is therefore to be determined according to common law and equity.
The parties met and began living together as man and wife in Adelaide in mid-1970. Later in that year they moved to Melbourne. They returned to Adelaide in December 1971. They remained living in South Australia thereafter. The relationship ended on 22 June 1996.
In 1970, when the couple were living in Melbourne, Mrs Chapman’s grandmother died. Mrs Chapman received the sum of $3,855.41 from the estate. As will be seen, a portion of that sum was spent on payment of hospital and funeral expenses on the death of their first child. The balance of some $3,000 was used by Mrs Chapman to purchase furniture and other effects for the family.
The couple have experienced considerable periods of sadness during their relationship occasioned by the early loss of children. Their first child was born in August 1971 but only lived for about three and a half months. A portion of the inheritance from Mrs Chapman’s grandmother was used for medical expenses for that child and subsequent funeral expenses. On 11 March 1975 their son, Mark, was born. He was their first child to survive. Karen, their second child to survive, was born on 1 July 1977. In December 1991 another distressing event occurred when twins were born and lived for only three hours and 18 hours respectively.
Mr Chapman has been employed throughout the period of the relationship. He is currently employed by the Corporation of the City of Charles Sturt. On about 16 October 1974 Mr Chapman commenced employment with the Corporation of the City of Woodville (now called “the Corporation of the City of Charles Sturt”). He then commenced making contributions to the Council’s superannuation fund. The fund now forms part of the Local Government Superannuation Scheme and is administered by that scheme. Mr Chapman remains a member of the scheme and is entitled to benefits under that scheme.
Earlier in the relationship, Mrs Chapman had been working from time to time taking in ironing and doing other tasks while the children were young. On 8 March 1980 she commenced work at Resthaven Nursing Home working periodically between two or three days a week. Thereafter, she worked from time to time at different places. In June 1988 she commenced a course at Adelaide TAFE College. In July 1989 she commenced employment at the Queen Elizabeth Hospital. She was still working at the hospital when she left Mr Chapman on 22 June 1996. Mrs Chapman is a member of the Southern States Superannuation Scheme which is available for employees in the public sector who are not members of any other State Government superannuation scheme. She left employment in the State service on 8 August 1996. I will return to the issue of superannuation.
For almost the whole of the period of their relationship Mrs Chapman operated a bank account and continues to do so. Mr Chapman did not operate a bank account until later in the relationship. He did so when Mrs Chapman organised it for him. Mrs Chapman’s evidence was that Mr Chapman paid $200 per fortnight to her towards household expenses and other accounts. From this, together with her own earnings, Mrs Chapman paid nearly all of the accounts. This is an example of the sketchy and unsatisfactory nature of the evidence given on financial matters. It is reasonable to infer that the amount contributed by Mr Chapman would have increased in amount over the long period of their relationship even if only to keep pace with inflation.
In January 1979 the couple commenced to rent a house from the South Australian Housing Trust at Findon. On 5 April 1982 they received a letter from the Housing Trust offering to sell them the house at Findon for the sum of $24,700. A deposit of $5,000 was required. They did not then have the funds sufficient to pay the deposit. The offer, therefore, lapsed.
In May 1983 Mrs Chapman was involved in a motor vehicle accident on her way to work. She settled a claim for damages in relation to the accident in the sum of $7,447.45. At that time both parties had separate bank accounts and she deposited that sum in her account. Because that sum was available, the Chapmans decided to renew negotiations with the Housing Trust to purchase their home at Findon. The price had then increased to $36,500. They were able to pay the deposit. It comprised $4,300 from Mrs Chapman’s bank account, that is to say, from her damages award, and $3,500 from the First Home Owners’ Scheme. They obtained a joint loan from the then State Bank of South Australia in the sum of $28,700. The house property was purchased in their joint names and they are both still registered as proprietors in their joint names.
The Chapmans decided to carry out various renovations to improve the house. They used most of the balance of the monies received by Mrs Chapman from the settlement of her claim for damages to buy materials. Mr Chapman and another of his friends provided the labour to carry out the renovations to install the various items of materials and equipment that had been purchased. Mr and Mrs Chapman both looked after the house. Mrs Chapman looked after the inside and Mr Chapman looked after the outside of the house and did all of the gardening.
In addition to looking after their own two children, Mr and Mrs Chapman looked after two young boys. Later, another boy called Richard came to live with them when he was 15 years of age. Although they were not Richard’s legal guardians, they obtained and received his child endowment. Mrs Chapman gave evidence that Mr Chapman was an excellent father to the children. She also gave evidence that, for many years while she was on shift work, Mr Chapman would arrive home early and do the cooking and look after the family. The trial judge found that in recent years, Mr Chapman did all of the cooking so that Mrs Chapman could work shift work.
Mrs Chapman also gave evidence that, in the course of the relationship, she bought a motor car which eventually had to be sold for scrap. She then received $300 as the scrap value. A debt of $4,000 remained owing in respect of the car. Mrs Chapman sought to have the balance of $3,700 paid by Mr Chapman.
Mrs Chapman issued proceedings in the District Court claiming 70 per cent of the value of the home at Findon after all debts and liabilities had been discharged and one half of the entitlement of Mr Chapman’s superannuation entitlement. The only major asset of the parties is their equity in the house property at Findon. The value of the house was agreed at $65,000. The amount due and owing upon the mortgage at the date of trial was $24,463.15. The equity of the Chapmans in the home was, therefore, $40,537. I deal later with the superannuation entitlements.

The Judge’s Findings

The trial judge found that the relationship between the Chapmans had all the aspects of a marriage. The relationship had survived some very distressing events. He found that, although they were unable to accept the first offer from the Housing Trust, they wished to have a home of their own. When in June 1984 Mrs Chapman received the sum of $7,447 in settlement of her damages claim, they were able to proceed with the purchase of their home. The judge also found that the Chapmans intended to share the family home equally, notwithstanding who supplied what amount and what proportion of work was performed for that purpose. He found that whoever provided the funds for that purpose provided it for the advancement of the other and for the benefit of the family. He found that it was the intention of Mrs Chapman that any money expended out of her damages settlement was for the benefit of the relationship. He concluded that it was neither unconscionable nor inequitable that Mrs Chapman should not now be able to claim those funds separately.
Mr Chapman cannot drive a motor car. In the course of the relationship, the parties owned motor vehicles. Mrs Chapman would often drive Mr Chapman to work. The trial judge found that the motor vehicles which were owned, in particular the motor vehicle which had been sold for scrap, were used for the purposes of the relationship. He found that, whether the money to purchase the motor car came from Mrs Chapman’s bank account or from any other source, it was intended to be part of the benefit for the family.
The judge found that it was always intended that the bequest from Mrs Chapman’s grandmother’s estate was to be her own money to use as she wished. Although some of that money was expended on furniture and other household effects, the judge was satisfied that the money was for the sole use and benefit of Mrs Chapman. He therefore allowed her the sum of $3,000 relating to that amount.
The judge was not prepared to have regard to the respective superannuation entitlements and make any order enabling Mrs Chapman to benefit in any respect from the superannuation of Mr Chapman.
The judge ordered, among other things, that Mrs Chapman was entitled to one half of the equity in the house ($20,268) plus an amount equal to Mrs Chapman’s beneficial interest in her grandmother’s estate ($3,000), making a total of $23,268. He further ordered that Mr Chapman pay a further $1,800 as his contribution to the agreed debt for the car. The order gave Mr Chapman the opportunity of purchasing the plaintiff’s interest in the house property for the sum of $25,068 being an amount equal to the value of her equity in the house, the sum of $3,000 from her grandmother’s estate and his share of the car debt of $1,800.

Mrs Chapman Appeals

Mrs Chapman appeals to this Court asserting that the trial judge erred in finding that it was the intention of the parties that the monies Mrs Chapman received from the settlement of her damages claim should be applied to the purchase of the house property. She appeals also against the finding that the superannuation entitlements did not accrue to the benefit of the relationship.

The Claim for Reimbursement

Because the monies received by Mrs Chapman from the settlement of her claim for damages were applied in part payment of the deposit for the house and for its renovation, her claim for reimbursement of those monies requires examination of the intentions of the parties concerning the house and those monies. The case for Mrs Chapman was not clearly articulated either in the statement of claim nor by her counsel in opening her case. It is not clear whether her claim was founded on a resulting trust or a constructive trust. Mrs Chapman gave no direct evidence as to the intentions of the parties.
Where two or more persons contribute to the purchase price of property in unequal shares and the property is purchased in their joint names, there is, in the absence of a relationship that gives rise to a presumption of advancement, a presumption that the property is held by the purchasers in trust for themselves as tenants in common in the proportions in which they contributed the purchase money: Calverley v Green (1984) 155 CLR 242 at 246 – 247, 258, 266 – 267. Although the presumption of advancement applies as between husband and wife who are married, it does not apply to parties to a de facto relationship: Calverley v Green at 256, 268 – 269. The presumption of a resulting trust can, of course, be rebutted by proof of the intention of the parties which manifests an intention to the contrary: Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353 at 364 – 365. The relevant time for determining the intention of the parties is the date of purchase: Charles Marshall Pty Ltd v Grimsley (supra); and Calverley v Green at 251, 261, 269 – 270. Although payment of mortgage instalments is not payment of the purchase price, regard can be had to them when determining whether a resulting trust has been established: Calverley v Green at 252, 257 – 258.
In his reasons, the trial judge referred to the reasons of Gibbs CJ in Calverley v Green at 246 and at 249 – 250 where the Chief Justice discussed how a resulting trust can come into existence. The trial judge did not, however, refer to that part of those reasons where His Honour left open the question whether the presumption of advancement applied as between a man and a woman living in a de facto relationship. Nor did he refer to the reasons of Mason, Brennan and Deane JJ who held that the presumption of advancement does not apply to a de facto relationship.
After referring to the reasons of Gibbs CJ, the trial judge found that Mr and Mrs Chapman intended that the house should be shared equally, notwithstanding the respective contributions made by Mr and Mrs Chapman. He said:
“I think it is clear from the relationship that had survived its various traumas up to that stage that, whatever happened, they wished to have a home of their own and the opportunity to achieve that happened when, in June, 1984, Mrs. Chapman received the sum of $7,447.45 in settling her damages claim and, immediately after that, they proceeded with their purchase of the home at Findon from the Housing Trust using $4,300 from Mrs. Chapman’s account as part of the deposit.
I find that Mr. And Mrs Chapman intended to share equally the family home, notwithstanding who supplied what amount and what proportion of work was performed for that purpose. Whoever provided the funds for that purpose, provided it for the advancement of the other and for the benefit of the family.”

As the trial judge had failed to mention that the presumption of advancement does not apply to a de facto relationship, it is not entirely clear what he meant by funds being provided “for the advancement of the other”. Then, after making his finding that the motor vehicle was also to be shared, his Honour went on to refer to the decisions of the High Court in Muschinski v Dodds (1985) 160 CLR 583 and Baumgartner v Baumgartner (1987) 164 CLR 137 and to the decision of this Court in Parij v Parij (1997) 72 SASR 153. Having done so, his Honour then returned to the question of the money received by Mrs Chapman from a damages settlement. He said:

“I have already found that it was the intention of both Mr. and Mrs. Chapman to create a home for themselves in the circumstances when she received the money from her damages settlement and I am certain that it was the intention of Mrs. Chapman that any money expended at that time was for the benefit of the relationship and it is neither unconscionable nor contrary to equity that those funds remain and were intended for that purpose.”

The trial judge’s reasons do not make it clear whether he found that the presumption of a resulting trust had been rebutted so that the property would not be held in trust for the parties as tenants in common in proportion to their respective contributions or whether he was applying the principles in Baumgartner v Baumgartner thus finding that a constructive trust existed, the terms of which were that the parties shared equally. Despite this difficulty, for the reasons which follow, I do not think this Court should interfere with his conclusion.

If the evidence does not point to the existence of a resulting trust, or if the presumption of a resulting trust is rebutted by evidence to the contrary, it might be necessary also to have regard to the principles expressed in Muschinski v Dodds and Baumgartner. In both decisions it was held that the presumption of a resulting trust had been rebutted. In Baumgartner the majority followed the reasoning of Deane J in Muschinski v Dodds and applied the general equitable principle which restores to a party contributions which he or she has made to a joint endeavour which fails when contributions have been made in circumstances in which it was not intended that the other party should enjoy them. A constructive trust is then imposed by equity regardless of actual or presumed agreement or intention to preclude the retention or assertion of beneficial ownership of property to the extent that such retention or assertion would be contrary to equitable principle: Baumgartner at 148. The constructive trust is imposed in order to avoid unconscionable conduct. When determining the contributions which the parties have respectively made, regard will be had to financial and indirect or non-financial contributions by the parties, indirect and non-financial contributions including support, home-making and family care: Muschinski v Dodds at 622 and Baumgartner at 150. The guiding principle in such cases is to prevent unconscionable conduct.

The Proven Facts

Reference has already been made to the sketchy and unsatisfactory nature of the evidence as to the financial contributions of the parties. There was no direct evidence as to the intention of the parties when they purchased the house. The only witness called on these issues was Mrs Chapman. Mr Chapman was unrepresented. His cross-examination did not explore or test relevant issues. He did not give evidence. A number of objective facts were, however, established from which certain inferences can be drawn.

(a)The parties had been living together as husband and wife for some 14 years when they purchased the house at Findon.
(b)At the time of purchase they had been living in the house for about five years.
(c)In the early years of their life together, the parties had endured and survived very distressing circumstances, losing three children very soon after birth or within a short time thereafter. However, two children have survived and Mr and Mrs Chapman were also caring for a third child. They were living together as a family and it is reasonable to infer that they intended to do so indefinitely.
(d)When the Housing Trust offered to sell them the house at Findon in April 1982, Mr and Mrs Chapman wished to accept the offer but could not as they were unable to raise the deposit. However, in 1984, when they could afford the deposit, they renewed negotiations and purchased the house in December 1984. It is reasonable to infer from these facts that they intended to live together indefinitely and to purchase a house for their life together.
(e)Part of the deposit was paid from the damages award received by Mrs Chapman. The deposit was $7,800. It comprised $4,300 from the damages award and $3,500 from the First Home Owners’ Scheme. To the extent that both parties were assisted by the scheme, both can be said to have contributed $1,750 to the deposit.
(f)The balance of the purchase price was borrowed. There is no evidence as to the amount of the mortgage instalments and the evidence is unclear as to the source of funds to pay the instalments. In her evidence, Mrs Chapman said that she paid those instalments as well as rates and taxes except in later years when Mr Chapman paid water rates. Mrs Chapman said that she paid all of the household bills except when Mr Chapman paid the water rates. Her evidence was that she received a housekeeping allowance of $200 from Mr Chapman for as long as she could remember. I have already referred to the unsatisfactory nature of that evidence. Although Mrs Chapman worked from time to time during the relationship, most of that work was on a casual or part-time basis. It was not until July 1989 that she began to work on a full-time basis. Her evidence was not tested in cross-examination. She gave no evidence as to the amount of her income or as to the amount which represented the pooling of their respective contributions. It is apparent that both parties kept part of their earnings for their own purposes. Mrs Chapman gave evidence that she gambled as much as $40 per week on poker machines. No documents were proved which would throw any further light upon the financial position. It is very doubtful whether Mrs Chapman’s income from her part-time or casual employment would have been sufficient to pay all outgoings even allowing for the contribution of $200 per week made by Mr Chapman.

(g)The house was transferred to the Chapmans as joint tenants. There is no evidence as to the intention of either as to what should happen to the house on the death of either. It cannot be assumed what either might have intended. As there were children of the marriage, whatever their respective financial contributions, they might have wished to continue to hold it as joint tenants so that the children could inherit from the survivor. Alternatively, as they were not married, it might have been intended that the joint tenancy should be severed to reflect their contributions. The former appears to be the more likely.
(h)The balance of the damages received by Mrs Chapman (some $3,100) was applied towards purchasing equipment and materials for renovations to the house after the Chapmans had purchased it. The renovations were carried out by Mr Chapman with the assistance of friends and his brother.

Both parties contributed to the conduct and management of the household as well as to the maintenance and upkeep of the house. Mrs Chapman cooked and looked after the inside of the house. Mr Chapman maintained the garden and the exterior of the house. In addition, as Mrs Chapman said in her evidence, Mr Chapman was an excellent father. She said that, for many years whilst she was on shift work, Mr Chapman would arrive home earlier and do all the cooking and look after the family. She said that he was a good cook.

What little evidence there is suggests that this was a case where each of the parties to the relationship retained money for their own use and pooled the balance out of which all household expenses, including repayments of mortgage instalments, were paid.

Mrs Chapman has not satisfactorily proved the source of the funds to repay the mortgage instalments. The fact that the repayments were made from the pool of their earnings does not readily assist in answering that question, since there is no evidence as to how much Mrs Chapman contributed to the pool. Therefore, it is not possible to determine the financial contributions each has made to the purchase of the house. When they purchased the house and in the years immediately thereafter, Mrs Chapman was not in full employment. It is, therefore, reasonable to infer that initially payment of the greater part of any one mortgage instalment or most of the mortgage instalments were made out of Mr Chapman’s weekly contributions, albeit paid thereafter out of Mrs Chapman’s bank account. If that is so, Mr Chapman may have contributed an amount which would have equalled the $4,300 contributed by Mrs Chapman to the deposit. In the absence of proof of the respective financial contributions, it is not possible to determine whether those contributions were unequal and, if so, in what proportion each of the parties contributed. It is not, therefore, possible to determine whether there was a resulting trust to hold the property as tenants in common proportionate to the respective financial contributions of the parties. This is, therefore, a case where, in the absence of any other basis to determine the respective rights and interests of the parties, it is appropriate to apply the principles as expressed in Baumgartner v Baumgartner. This appears to be the approach the trial judge took. For the above reasons, it is appropriate to deal with the matter in that way.
As is apparent from the facts already mentioned and in particular those spelled out in paras (a) – (i), this was essentially a personal relationship. It was not a commercial relationship. The personal relationship survived some tragic personal events and lasted for as long as 26 years. As Deane J observed in Muschinski v Dodds (supra) at 622:
“[A]ny assessment of what would and would not constitute unconscionable conduct would obviously be greatly influenced by the special considerations applicable to a case where a husband and wife or persons living in a ‘de facto’ situation contribute, financially and in a variety of other ways, over a lengthy period to the establishment of a joint home.”

Those view were reiterated in Baumgartner at 149 – 150 by Mason CJ, Wilson and Deane JJ who said, when commenting on a situation where parties in a de facto relationship had to finance the purchase of a house from the pool of their earnings:

“Equity favours equality and, in circumstances where the parties have lived together for years and have pooled their resources and their efforts to create a joint home, there is much to be said for the view that they should share the beneficial ownership equally as tenants in common, subject to adjustment to avoid any injustice which would result if account were not taken of the disparity between the worth of their individual contributions either financially or in kind.”

All due weight must be given to the latter part of those remarks. But regard must also be had to their observations a little later on p 150 where they said:

“The court should, where possible, strive to give effect to the notion of practical equality, rather than pursue complicated factual inquiries which will result in relatively insignificant differences in contributions and consequential beneficial interest.”

The trial judge concluded:

“I have already found that it was the intention of both Mr and Mrs Chapman to create a home for themselves in the circumstances when she received the money from her damages settlement and I am certain that it was the intention of Mrs Chapman that any money expended at that time was for the benefit of the relationship and it is neither unconscionable nor contrary to equity that those funds remain and were intended for that purpose.”

This was a long de facto relationship. The parties were pooling their earnings after retaining a portion for their own use. They were sharing the benefit of their pooled resources, as well as sharing the major assets such as the house and motor vehicle. Mrs Chapman’s evidence does not prove that there was an intention that there be any accounting between them or that the house should be held in the proportions in which they had contributed the purchase money. The fact that the parties held the house property as joint tenants and the fact that, notwithstanding all the difficulties they had encountered, they continued to live in a relationship and that relationship lasted for as long as 26 years lends support to the conclusion that the parties intended that, notwithstanding that they lived in a de facto relationship, any money expended by one was for the advancement of the other. It was only after the relationship had terminated that one party sought an accounting. Applying the principles in Baumgartner to this case, where the evidence does not allow for a reckoning of the respective financial contributions of the parties, regard must be had to the fact that both parties made significant indirect and non-financial contributions as well as financial contribution to the relationship over a period of 26 years. An example is the fact that the balance of the damages paid to Mrs Chapman was applied to the purchase of materials and equipment converted to improvements to the house by the labour and industry of Mr Chapman, his brother and friends. Each contributed either financially or by labour to the renovations. Given the fact that the parties had already been living there for 14 years at the time they decided to purchase the house and lived there for a further 12 years both contributing financially and by other means to the running of the house in every sense, the trial judge’s conclusion that Mr and Mrs Chapman intended to share the family home equally was clearly open. I do not think there is any basis upon which this Court should interfere with that decision. The amounts at stake are not large. The parties do not seek a re-trial. I would, therefore, uphold the reasons of the trial judge.
Surprisingly, the trial judge also held that Mrs Chapman was entitled to recover the sum of $3,000 which she had received from her grandmother’s estate and which had been applied to the purchase of household effects. He said:
“As to the bequest that she received from her grandmother’s estate, I find that, having regard to all of the circumstances of the evidence, it was always intended that that was to be her own money to use as she wished for her own benefit and, although some of it was expended on furniture and other like items, I am satisfied that it was intended by both Mr. and Mrs. Chapman that that money would be for the sole use of and benefit of Mrs. Chapman and, having regard to some amounts that were spent for other purposes, I allow her the sum of $3,000 relating to that amount.”

This conclusion is surprising for at least two reasons. First, there is no evidence as to the intention of Mr Chapman. Secondly, the money had been spent to purchase furniture and to pay various household expenses in 1971, some 25 years before the relationship terminated. Mrs Chapman’s evidence was that about $1,500 was spent to buy furniture and that the rest of the money was applied to general living expenses. Over the years, that furniture had been replaced. In June 1996 only one item of that original purchase of furniture remained, a kitchen table. The furniture was no doubt replaced because it had worn out, had otherwise become unserviceable, or was no longer of any use. It would have been replaced with other furniture purchased with money provided from the pooled resources of the parties. There is no evidence that the furniture was traded in to buy other furniture. It is reasonable to infer that some items were replaced more than once. In short, whatever benefit had been received by Mr Chapman had come to an end long ago. In addition, Mr Chapman had himself purchased items of furniture. In short, both contributed to buying furniture. Although this part of the decision is open to question, it is unnecessary to pursue it as Mr Chapman has not instituted a cross-appeal. I deal with it only to show that the trial judge’s decision on this part of the claim does not assist Mrs Chapman in her other claims. Mrs Chapman is fortunate that there is no cross-appeal.

The Superannuation Benefit

The judge’s reasons for concluding that Mrs Chapman had no entitlement to any part of Mr Chapman’s superannuation benefit were:
“As to the superannuation benefits which I have analysed earlier in this judgement, I am satisfied that it was always the intention of both Mr. and Mrs. Chapman that their respective superannuation benefits would eventually accrue for the benefit of the relationship but, as the relationship has not continued until those benefits accrue, I think it is proper and reasonable that no account be taken of either of the superannuation amounts and that Mr. Chapman and Mrs. Chapman continue with their own superannuation benefits to their own advantage whenever they might accrue and I do not allow any amount of this and I do not believe that it is unconscionable or contrary to equity that that should be the situation.”

Although Mrs Chapman had initially claimed one half of Mr Chapman’s superannuation benefit, she now contends that she should receive an amount equal to one half of the value of his superannuation at the date when the relationship terminated less one half of the value of her own superannuation benefit.

On 22 June 1996, the date when the relationship came to an end, three options were available to Mr Chapman in relation to his superannuation benefit if he ceased employment. However, he could not gain access to some benefits until he reached the age of 55 years. He was aged 52 years at the date of the trial. Mrs Chapman based her claim on the first option which is called a “cash benefit”.
The evidence was that, if Mr Chapman had resigned on 22 June 1996, he would have received a lump sum of $31,630.58 after tax of which $6,042.47 would have been preserved until he attained the age of 55 years or retired from the work force. His cash benefit after tax would have been about $25,500.
The value of Mrs Chapman’s superannuation benefit on 22 June 1996 was $8,948.15. The benefit could not be paid until she reached the age of 55 years and retired. If Mrs Chapman had retired on the grounds of invalidity, she would have been entitled to a lump sum benefit of $34,487.70. The evidence suggests that Mrs Chapman did terminate her employment with the Queen Elizabeth Hospital but there is no evidence as to the terms on which she did. It is not apparent whether she received the invalidity benefit. Her evidence was as follows:
“Q. You were at the Queen Elizabeth Hospital for nearly 7 years.
A...... Yes, actually I got my pro rata; the last six weeks I was on sick pay then I resigned.”

That is the only evidence on the issue of what Mrs Chapman received. It appears that she received some payment. The expression “pro rata” was not explained. It is not apparent whether she received an invalidity payment or some other payment. Although an officer of her superannuation fund was called, no evidence was led as to the actual payment. As she could not claim $8,948.15 until she reached the age of 55 years, the “pro rata” must have referred to some other kind of payment. There was evidence that on reaching the age of 55 years, tax payable on the benefit was $1,476.44 resulting in a net benefit of $7,471.71.

The method advanced on behalf of Mrs Chapman for calculating her claim is to deduct her superannuation benefit at age 55 years after deducting tax from Mr Chapman’s benefit similarly computed and halving the result. Thus,
Value of Mr Chapman’s policy after tax                  $31,630
Less value of Mrs Chapman’s policy after tax          $7,471
__________
Balance  $24,159
__________

One half of that sum is $12,079.50, and that is the amount Mrs Chapman claims.

There are a number of difficulties when dealing with this aspect of the appeal. First, apart from the fact that the parties have no present entitlement to the respective superannuation benefits, there is no evidence as to the intention of the parties as to the application of those benefits when received. Superannuation is a form of saving providing a future financial resource. Evidence may show that, in some cases, it is intended to provide both a form of savings and a nest egg for the retirement of the parties: In the marriage of Hauff (1986) 10 Fam LR 1076. Where parties are married, that conclusion may be readily inferred. It cannot be so readily inferred in the case of parties living together in a de facto relationship. Evidence of intention is therefore desirable. When such evidence is lacking, it may be possible to infer intention from the objective facts. Counsel for Mrs Chapman relied on this Court’s decision in Parij v Parij (supra). But there is nothing in the reasons in that decision which suggest anything different from what has just been noted. Indeed, in that case, the matter was referred to a Master to enquire as to the relevant facts.
There are other deficiencies in the evidence. In addition to the absence of evidence as to the terms on which Mrs Chapman terminated her employment with the Queen Elizabeth Hospital, there is no evidence as to whether she is currently employed and, if so, on what terms. There is no evidence whether she is now entitled to any kind of superannuation benefit. There is no evidence whether she has retained her present benefit or whether that benefit has increased.
The shortcomings in the evidence are underlined by the fact that the evidence shows that while the parties pooled part of their earnings, they kept separate bank accounts and retained money for their own purposes. The principles in Baumgartner can be applied to determine how to treat the contributions towards the house property because there was some, albeit slight, evidence concerning the respective contributions of the parties, both financial and non-financial. In addition, there are other objective facts which assist in resolving that issue. But the principles in Baumgartner cannot be applied to the superannuation entitlements because of the lack of evidence as to intention and the fact that each retained something from their own earnings for their own benefit. It is not, on its face, unconscionable for Mr Chapman to retain the benefits of his own superannuation which represents one of the fruits of his work for his employer. Furthermore, Mrs Chapman had the onus of proof on these issues and has failed to adduce any evidence. While a court would, generally speaking, be reluctant to decide issues such as these merely on the ground that a party had not discharged the onus of proof, in this case that is but one further ground which, when added to the others, tells against Mrs Chapman’s claim.
In the absence of evidence on this issue and as the other facts which had been proved provide little assistance, there is no basis upon which to make the order sought by Mrs Chapman. Any such order would be an attempt at unprincipled palm tree justice. There is, in short, nothing which justifies interfering with the decision of the trial judge. For all of these reasons, I would dismiss the appeal in relation to the superannuation benefits.
It follows from the reasons I have given that I would dismiss this appeal.
NYLAND J. I agree that the appeal should be dismissed for the reasons expressed by Debelle J.

[2000] SASC 195

29 June 2000