Cole and Childs
[2010] FMCAfam 631
•23 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| COLE & CHILDS | [2010] FMCAfam 631 |
| FAMILY LAW – Property – de facto relationship – does relationship continue during period of not cohabiting – contributions – respondent’s children ordinarily members of the family unit – relevance of domestic violence – section 90SF(3) factors. |
| Family Law Act 1975, ss.90SF, 90SM |
| Todd and Todd (No. 2) (1976) FLC ¶90-008 Pavey and Pavey (1976) FLC ¶90-051 Fenech and Fenech (1976) FLC ¶90-035 Jones v Dunkel (1959) 101 CLR 298 Robb and Robb (1995) FLC ¶92-555 Crawford and Crawford (1979) FLC ¶90-647 Kennon v Kennon (1997) FLC ¶92-757 |
| Applicant: | MR COLE |
| Respondent: | MS CHILDS |
| File Number: | MLC 8883 of 2009 |
| Judgment of: | McGuire FM |
| Hearing dates: | 24, 25 & 26 February & 25 March 2010 |
| Date of Last Submission: | 25 March 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 23 June 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Crozier-Durham |
| Solicitors for the Applicant: | David Stagg Tonkin & Co |
| Counsel for the Respondent: | Mr Moisidis |
| Solicitors for the Respondent: | Bowlen Dunstan & Associates |
ORDERS
That the applicant shall within 28 days of the date of these orders:
(a)Transfer and/or vest all his right, title and interest in the following to the respondent absolutely:
(i)All personalty and chattels in the possession of or under the control of the respondent as at the date of these orders but subject to these orders.
(ii)Any bank account or like investment in the name of or to the benefit of the respondent as at the date of these orders.
(iii)Any superannuation policy or entitlement of the respondent.
(b)Be solely responsible for and indemnify the respondent in respect of the following liabilities:
(i)Any and all liabilities incurred by the applicant since separation in either his name alone or in joint names.
(ii)Any and all liabilities attaching to any of the assets to be retained by the applicant pursuant to these orders.
(iii)The capital gains tax liability in respect of the sale of the Property N property.
(iv)The loan liability to the applicant’s mother.
(c)Pay to the respondent a lump sum of $28,485.00.
That the respondent shall contemporaneously with the payment to her pursuant to order (1)(c) hereof:
(a)Vacate the property at Property S in Victoria and leave that property in a good and fit order and condition.
(b)Transfer and/or vest all her right, title and interest in the following to the applicant absolutely:
(i)The property situate at Property S in Victoria and registered in the name of the applicant.
(ii)All personalty, chattels and motor vehicles in the possession of the applicant as at the date of these orders but subject to these orders.
(iii)Any bank account or like investment in the name of or to the benefit of the applicant as at the date of these orders.
(iv)Any superannuation policy or entitlement of the applicant.
(v)The following:
·[jewellery omitted]
·dog
·kennel
·large wall cabinet
·crystal cabinet
·antique clock
·Westminster fine bone china dinner set
·small wall unit (in entrance)
·rug
·outdoor setting (four chairs and a table)
·tools and equipment in garage (mower, ladder grass-cutter and tools)
·refrigerator in kitchen
·couch and two armchairs
·small television (silver)
·sporting memorabilia and prints
(c)Be solely responsible for and indemnify the applicant in respect of the following liabilities:
(i)Any and all liabilities incurred by the respondent since separation in either her name alone or in joint names.
(ii)Any and all liabilities attaching to any of the assets to be retained by the respondent pursuant to these orders.
That in respect of the list of chattels annexed to these orders and not already dealt with by these orders, the applicant and the respondent have alternate choices to retain particular items with the applicant to have the first such choice and that the distribution of such chattels be finalised within 14 days of the date of these orders.
THE COURT DECLARES
A.That these orders are intended to finally determine the financial relationships between the parties with respect to Part VIIIAB of the Family Law Act 1975 (as amended).
IT IS NOTED that publication of this judgment under the pseudonym Cole & Childs is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 8883 of 2009
| MR COLE |
Applicant
And
| MS CHILDS |
Respondent
REASONS FOR JUDGMENT
Background
In this matter Mr Cole is the applicant for final orders for property settlement. The respondent is his former de facto partner, Ms Childs.
The parties commenced a relationship in the first half of 2003.
The relationship ended in 2009. The applicant suggests at one point
of his evidence that the emotional relationship was over as early
as January 2009. There is no issue, however, taken with the jurisdiction of the Court given that the relationship between the parties was a de facto one. Indeed, the applicant also deposes the relationship to have finally finished in April 2009 and it is clear that the applicant finally left the home in October 2009. Given that there are no issues
of jurisdiction, and on the evidence that will be set out below, I am satisfied that the parties’ relationship ended in or about April 2009.
There is a dispute between the parties as to the status of their relationship for a period from March 2006 until June 2008.
The applicant, Mr Cole, says that there was no de facto relationship during this period. Ms Childs, whilst conceding that the relationship took on a different nature, argues that it remained a committed de facto union.
There are no children of this relationship. Ms Childs, however, does have two children who were ordinarily members of the household during the period of the parties’ cohabitation. Mr Cole has a son who visited during that relationship.
Ms Childs receives a disability pension. Mr Cole is a [occupation omitted] currently suspended from [work] on pay and pending charges of assault by him against Ms Childs being finalised in the criminal courts. They are currently at the stage of committal proceedings.
Ms Childs has re-partnered with a gentleman by the name of Mr J. She does not, however, claim this to be a de facto relationship. There is no evidence that Mr Cole has re-partnered.
In about August or September 2008 a home was purchased at
Property S in Victoria in Mr Cole’s name. Ms Childs remains resident in that property and does so pursuant to orders of his Honour Cronin J made in the Family Court of Australia on 20 October 2009. It is inherent in those orders, however, that Ms Childs would remain in the home only until having made a successful application for priority housing through the Ministry of Housing Victoria.
The parties’ proposals
The applicant, Mr Cole, seeks an order whereby he retain the home
at Property S. He proposes a cash adjustment on Ms Childs. By the time of this matter coming before the Court for hearing that proposal was that she receive a sum of $20,000.00 to be paid as to $10,000.00 immediately and the further sum of $10,000.00 to be retained
by solicitors in trust pending Ms Childs vacating the Property S home.
In final submissions counsel for Ms Childs sought a cash adjustment
of $60,000.00.
The issues
Despite the relatively limited ambit of this dispute in dollar terms, there are numerous issues of fact and credit between the parties. This is not surprising given the evidence of both parties that their relationship
was a volatile and often violent one. From the evidence adduced
I isolate the following issues between the parties:
a)The period of cohabitation and specifically the status of the relationship between March 2006 and June 2008.
b)
The status of a capital gains tax liability of $30,396.00 resulting from the sale by Mr Cole of a block of land in about 2008 the proceeds of which were put towards the purchase of the
Property S property. Ms Childs disputes that this is a liability of the relationship.
c)
The status of moneys received by Mr Cole from his mother
in a sum of $29,000.00 in about 2008 or 2009. There is no dispute that those moneys were received and were used essentially for renovations to the Property S property. Ms Childs argues, however, that those moneys were a “gift” whilst Mr Cole maintains that they constitute a loan to be repaid.
d)
There is an argument as to the distribution of numerous items
of chattels which are best listed in Ms Child’s amended case summary document handed to the Court as an aide memoir during the hearing.
e)The relative contributions of the parties but with specific reference to the following:
i)
$23,000.00 brought into the relationship by Ms Childs.
She maintains that this money was used for the benefit
of the parties to its full value. Mr Cole says that Ms Childs retained most, if not all, of these funds for her own use and benefit.
ii)
Generally the contributions as homemaker by Ms Childs during the relationship. There is no dispute that Mr Cole worked full time as a [occupation omitted]. Ms Childs says that her contribution was equal and in the form of homemaking duties. Mr Cole argues to the contrary.
Ms Childs claims a further contribution by way of her expertise in the [omitted] market and hence gaining a beneficial purchase price for Mr Cole for the Property S property.
iii)The weight, if any, to be given to the fact that Ms Childs’ children were ordinarily members of the household during the relationship.
f)
The relevance, if any, of domestic violence in the relationship
in respect of the contributions by either of the parties.
g)The relevant needs factors of the parties and specifically as to any discrepancy in earning capacity.
The law
This is not a matter in which I am required to make a declaration
as to whether there was a de facto relationship or indeed whether the matter comes within the jurisdiction of the Court. As mentioned above, the applicant’s evidence is a little equivocal as to the date of separation but on the best evidence before me I take his view as to final separation occurring in April 2009. Neither party contests the jurisdiction of this Court.
Section 90SM(4) of the Family Law Act 1975 (“the Act”) (as amended) provides the considerations to be had by the Court in making final orders for distribution for property. Those considerations include:
a)
The financial and non-financial contributions made directly
or indirectly by or on behalf of each party to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship.
b)
The contribution made by a party to the welfare of the family constituted by the parties to the de facto relationship and any children of the relationship, including any contribution made
in the capacity of homemaker or parent.
c)
The effect of any proposed order upon the earning capacity
of either party.
d)The matters referred to in sub-s.90SF(3) so far as they are relevant.
Sub-section 90SF(3) provides the considerations to be had by the Court in adjusting property interests after a consideration of the contribution elements. Those considerations include:
(a) the age and state of health of each of the parties to the de facto relationship (the subject de facto relationship); and
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c) whether either party has the care or control of a child of the de facto relationship who has not attained the age of 18 years; and
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person; and
(f) subject to subsection (4), the eligibility of either party for
a pension, allowance or benefit under:(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g) a standard of living that in all the circumstances is reasonable; and
…
(k)the duration of the de facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
…
(m) if either party is cohabiting with another person—the financial circumstances relating to the cohabitation; and
…
(r) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account…
There is now a well established approach for the courts in determining a property settlement. Essentially, it is a multi-step process. The first step is to identify the pool of property including assets, liabilities
and financial resources of the parties as at the date of the hearing. Amendments to the Act provide that superannuation entitlements
are now to be treated as property. Secondly, the Court is to isolate and evaluate the contributions made by the parties as defined in s.90SM
of the Act. The third step is to consider those matters listed above and set out in s.90SF of the Act insofar as they are relevant to the proposals of the parties and the probative evidence before the Court. There
is then arguably a fourth step pursuant to s.90SM(3) of the Act which states that the Court must not make an order unless it is satisfied that, in all the circumstances, it is just and equitable to make the orders.
In this sense it is the justice and equity of the actual orders that the Court must consider.
The evidence
Mr Cole relied on affidavits filed 2 October 2009, 16 December 2009 and his final affidavit filed 11 February 2010. That last affidavit effectively consolidates the previous material. Mr Cole also filed
a sworn financial statement on 16 December 2009.
Mr Cole adduced evidence from his mother, Ms C, whose affidavit was filed 16 December 2009. On that day Mr Cole also filed affidavits of two colleagues being Mr A and Mr T.
The respondent, Ms Childs, relied on two affidavits filed 19 October 2009 and 18 February 2010. She also filed a sworn financial statement on 26 November 2009.
The respondent caused to be filed affidavits from her own mother and her sister. Unfortunately, neither deponent was available on the date
of the hearing although that hearing date had been allocated as long ago as 22 December 2009 and both deponents had apparently been available in Melbourne until shortly before the hearing of this matter.
I was told that both were required for a family function interstate. Ultimately those two affidavits were not relied upon.
The pool of property
The value of the Property S property is agreed at $520,000.00 with
a mortgage liability of $341,000.00 giving an equity of $179,000.00.
Mr Cole has a gross superannuation entitlement of $124,637.00 after adjustment pursuant to a previous splitting order made in favour of his former wife. Ms Childs does not disclose any superannuation entitlement in her name.
Mr Cole has a motor vehicle valued at $8,000.00. He also has a visa card liability of $1,000.00. The fact or value of both the motor vehicle and the visa card were not challenged in cross-examination and I intend to include both in the pool of property.
Mr Cole claims a further liability of the relationship namely a capital gains tax debt of $30,396.00. Corroborating evidence was adduced
in respect of both the debt and the quantum. That debt arises out of the sale by Mr Cole of a vacant block of land at Property N in about 2008. He received that block of land as part of his previous property settlement. All of these facts are conceded by Ms Childs.
Ms Childs, surprisingly, argues that the capital gains tax liability should not be included in the pool of property for the purposes of my determination. In the witness box Ms Childs claimed some knowledge in the field of capital gains tax law. If I understand her evidence correctly, she was of the view that there would be no liability struck
if Mr Cole had not sold the property when he did but had held it until the following year. I do not accept Ms Childs as an expert in taxation law. Indeed, and quite properly, her counsel in final submissions did
not vigorously pursue this issue and, in fact, conceded the capital gains tax liability as being a current liability. The simple fact is that
the proceeds of sale of the Property N property were put towards
the purchase of the Property S property. It is clear on the evidence
that the Property N property was a vacant block and therefore did not give the parties any taxation advantages as residents. Any suggestion by Ms Childs that she urged Mr Cole to retain the property is illogical and contrary to the claim that she makes in respect of the Property S home and what she says were her contributions towards the finding
and purchasing of that property. I intend to include the capital gains tax liability as a liability in the pool of property for the purposes
of my determination at a quantum of $30,396.00.
Mr Cole maintains that he owes his mother, Ms C, $29,000.00, and this is properly a liability of the relationship. Ms C gave evidence and was cross-examined. She also says that she is owed $29,000.00. Both she and her son say that the moneys were provided on an interest-free basis but with an expectation by both that they be repaid. Ms C maintained this position under vigorous cross-examination by counsel for
Ms Childs. I accept the evidence of Mr Cole and his mother and include the sum of $29,000.00 in the pool of property as a liability.
Consequently, I find the property pool for the purposes of my determination to be the following:
Assets
Equity in the Property S home
$179,000.00
Applicant’s motor vehicle
$8,000.00
Total assets
$187,000.00
Liabilities
Applicant’s visa card liability
$1,000.00
Capital gains tax liability
$30,396.00
Liability to applicant’s mother
$29,000.00
Total liabilities
$60,396.00
Net assets
$126,604.00
Superannuation
Applicant’s superannuation entitlement
$124,637.00
Total superannuation
$124,637.00
Net property including superannuation
$251,241.00
Contributions
The nature and extent of the contributions of each of the parties is in many ways dependent upon my findings as to the duration of the relationship and especially as to the status of the relationship between March 2006 and June 2008. It should be noted that both parties have variously during the course of these proceedings thought that the first separation occurred in September 2005 rather than March 2006. However, by the time of the evidence before me, they were agreeing that the “separation” or change in the status of the relationship occurred
in March 2006.
Ms Childs concedes that she and Mr Cole did not live together between March 2006 and June 2008 in the sense that they had done before
and after those two dates. She lived with her sister and her own children. Mr Cole lived with his mother.
The respondent bases her argument on the fact that the sexual relationship between the parties continued over this period of in excess of two years. She says that the relationship was monogamous. This fact is disputed by Mr Cole. He does, however, concede that he might visit Ms Childs and stay overnight with her on an average of two to four nights per week.
Mr Cole argues that there was no financial interdependence or support between he and Ms Childs during this period. He concedes that they did socialise on occasions including some family functions and some events for his work.
The parties differ as to the motivation for the change in the nature
of the relationship. Ms Childs says that there was a deliberate and mutual decision made by the parties to live separately so as to save money apparently for the joint purchase of a home. Mr Cole disagrees. He maintains that the change in the nature of the relationship
was simply that one or other of them, or perhaps mutually, came
to a decision that they could not live together as a couple at that time. He cites the numerous instances of violence alleged by each against the other during the relationship.
Mr Cole also raises the fact that he received a letter from lawyers acting for Ms Childs during that period. Whilst that letter was not tendered into evidence, it seems that the thrust of the letter was one informing Mr Cole that he was not to remove any chattels from the previously jointly rented premises. He says that the tenor and content of that letter is inconsistent with the parties continuing an emotional and committed relationship.
I must consider, therefore, on the evidence whether the parties were
in fact separated during this period of in excess of two years
or alternatively whether they continued their de facto relationship albeit
in a different form after March 2006. In making this determination
I glean assistance from early decisions of the Family Court of Australia where the Court was regularly called upon to determine whether parties had separated under the one roof for the purposes of divorce applications. Those early authorities together formulated a number
of considerations for the Court in determining whether there was,
in a legal sense, a separation. They include:
a)The development of an intention to separate. That intention need not be mutual.
b)The communication of that intention by one party to the other and in terms which are unconditional and unambiguous.
c)
An action by one or the other of the parties upon the forming
of the intent to separate.
Justice Watson in Todd and Todd (No. 2)[1] at [75,079] said in relation
to this issue:
Separation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention, or alternatively act as if the marital relationship has been severed. …Casual acts of sexual intercourse do not constitute an interruption of separation.
[1] (1976) FLC ¶90-008.
Further, as the Full Court said in Pavey and Pavey[2] at [75,214]:
…it is not possible to apply some mathematical formula to these activities and determine whether a “separation” has occurred. Rather the evidence should examine and contrast the state of the marital relationship before and after the alleged separation.
[2] (1976) FLC ¶90-051.
It is also proper that I consider as to whether the parties’ relationship
as of March 2006 had “broken down” or was rather perhaps “breaking down” where for instance the parties might choose to change the terms and nature of their relationship in order to save and maintain it. Again, using the analogy of the separation under the one roof of parties
to a marriage, her Honour Evatt CJ in Fenech and Fenech[3] stated
at [75,133] and [75,134]:
[3] (1976) FLC ¶90-035.
I am satisfied that the breakdown has been continuing for at least a year, but that is not enough.
Marriage comes in many shapes and sizes and many families are living in a strained relationship like this. To the outside observer, matters go on much as usual, and only within the family itself — between the husband and wife — is there any acknowledgment of the breach. To comply with the Act there must be some overt separation, some evidence that there are two households, not one…
The applicant relies on the evidence of his two work colleagues Mr A and Mr T. The force of their evidence is that they worked with
Mr Cole during the relevant period. They say that they understood and considered him to be separated although they note the fact of some continuing relationship with Ms Childs by way of telephone calls and some attendances at work functions.
Clearly, each such determination rests on its own factual platform and the standard of proof I am required to apply is one of “on the balance of probabilities”.
After consideration of all of the salient facts and on balance, I am
of the view that the parties were separated and not in a de facto relationship for the purposes of the Act during the period from March 2006 until June 2008. I find it difficult to reconcile the respondent instructing a lawyer to write a letter of demand to the applicant during this period and in the terms described consistently by each of the parties. There is no doubt that there was a fundamental change in the nature of the relationship in March 2006. The parties did not live together. They had previously done so. There is no evidence
of financial dependence or even a mingling of finances during the relevant period. The best evidence suggests that there was, despite the argument of Mr Cole, some mingling of finances prior to March 2006. The respondent says that the motivation for the change in the form
of the relationship was to save money for a joint home. There is no evidence that this occurred or that there was any serious attempt
at saving by either of the parties separately or jointly. The fact
of regular sexual relations between the parties is not itself indicative
of a de facto relationship. Nor is the fact of some socialising or even Mr Cole visiting Ms Childs’ home for a meal evidence of a de facto relationship.
Respondent’s introduction of $23,000.00
Both parties concede that the respondent Ms Childs received a sum
of $23,000.00 from her former husband during the early part of their relationship. Ms Childs says that these moneys were used for the joint benefit of the parties. She says that some of it was used for the purchase of furniture. Mr Cole’s evidence is that he purchased all
of the furniture and produces bank and credit card statements
to corroborate his version. Ms Childs counters this argument by saying that she reimbursed Mr Cole for some of these purchases.
Specifically, Mr Cole says that the respondent used the moneys to pay $10,000.00 to her former solicitors or to repay a loan obtained from her mother (presumably for legal expenses). The respondent’s evidence
in respect of the allegation of repayment of $10,000.00 was vague and uncertain. She had the opportunity to present corroborative evidence from her mother but did not do so. I have some sympathy with
the submission of counsel for Mr Cole that I should therefore make negative inferences against Ms Childs for this failure in what
is normally called a “Jones v Dunkel inference”.[4] Overall I prefer the evidence of Mr Cole that Ms Childs did satisfy a liability of $10,000.00. His evidence in respect of this point was clear and consistent and withstood cross-examination. Nevertheless, on the balance of probabilities, I am of the view that the residue of some $13,000.00 was used for the joint benefit of the parties by way of payment for some furniture and a contribution to household expenses. These moneys were received when the parties were together. I accept
Ms Childs’ evidence that they both contributed to living expenses.
They contributed to setting up a home together. There is no direct evidence of Ms Childs utilising these moneys otherwise or just for her own benefit.
[4] Jones v Dunkel (1959) 101 CLR 298
Other contribution factors
Mr Cole was undoubtedly the major financial contributor during the course of the relationship. He was in full-time and well paid employment as a [occupation omitted]. The respondent’s direct financial contribution was sporadic and inferior to that of Mr Cole.
It is of course proper to consider the totality of property of the parties as at the date of the hearing and this would include the applicant’s motor vehicle valued at $8,000.00. The best evidence before me is that Mr Cole brought with him a motor vehicle into this relationship, whereas Ms Childs had little or no tangible assets at that time.
The respondent’s two children were ordinarily members of the household during the relationship. The respondent received the $23,000.00 from her former husband by way of child support arrears. The evidence suggests that she may have received some ongoing child support. Nevertheless, the evidence as a whole suggests that Mr Cole contributed significantly to the support of the respondent’s two children in the sense that they were members of the household. This finding
is supported by the statement by Ms Childs herself that she considered Mr Cole to be the “father-figure” for her children during the relationship. The fact that Ms Childs volunteered such a statement
as part of her evidence as to the issue of the alleged continuity of the relationship between March 2006 and June 2008 is significant when seen against her evidence that she was solely responsible for the support of her children during the period that she and Mr Cole lived together. Generally, the respondent was not a believable witness.
I have no difficulty in finding that her evidence was in many respects selective and embellished and that she was inclined to give answers
in cross-examination that best served her case for the particular point
in issue with the result often being contradictory evidence. I make these findings as to credit having had the benefit of seeing the parties cross-examined and observing their demeanour in the witness box.
I find that there was a contribution by Mr Cole towards the care and support of the respondent’s two children during the course of the relationship in the terms expressed by the Full Court in Robb and Robb.[5] For reasons that I do not fully comprehend the Court in that case considered the party’s contributions to the children of his partner, not being his biological children but nonetheless ordinarily members of the household, under s.75(2)(o) of the Act rather than simply as a contribution. Whilst the end result may not differ I prefer to see such contribution simply as that – being a contribution to the family unit.
[5] (1995) FLC ¶92-555.
The major tangible asset of the parties is the equity in the home
at Property S registered in the name of Mr Cole. That purchase was made with the benefit of a sum of approximately $113,000.00 received by Mr Cole from the sale of an Property N block of land which he had received from his previous property settlement. These moneys were used to meet the deposit for the purchase of the Property S property and for renovations to that home. The renovations were completed with the assistance of the interest free loan from his mother. That interest free loan is clearly a contribution on behalf of Mr Cole.[6]
[6] See Crawford and Crawford (1979) FLC ¶90-647.
The parties moved into the Property S property in about August
or September 2008. Mr Cole has met the mortgage and outgoings since that time with the exception of three payments of $800.00 contributed by the respondent. Of even greater consequence is that
Ms Childs has had the sole use and occupation of that property since about October 2009 pursuant to the orders of Cronin J. The clear intention of his Honour’s orders was that Ms Childs was to make a bone fide effort to obtain government housing and then vacate the home at Property S. Ms Childs says that she made an application to the housing department in mid-December 2009. She has not yet received housing. She gave no adequate explanation for the delay of near two months in making her application for alternative housing. Regardless, Mr Cole has continued to meet the mortgage and outgoings on the property whilst not having the benefit of occupation or use of that home in the intervening months. I consider this to be a contribution
by him.
The respondent claims some contribution in negotiating a beneficial purchase price for the home. She claims to have some experience and expertise in the [omitted] industry. I am not convinced of the respondent’s evidence in this regard and particularly given her sworn evidence in respect of her claimed expertise in respect of capital gains tax law which she also says she derived from her experience in the [omitted] industry. It is common for prospective purchasers to negotiate a beneficial purchase price. The title to the property and the mortgage are both solely in the name of Mr Cole. Whilst I have no doubt that the respondent was an interested party in the prospective purchase, I cannot find on the evidence or on the balance of probabilities that the respondent was able to utilise her expertise and special knowledge to obtain any or any significant savings to the parties in the purchase of the Property S home.
Both parties are generally critical of the others’ contribution
as homemaker during the course of the relationship. On the available evidence I am not convinced that either played a superior role to the other in this respect.
Much of the evidence at the hearing of this matter was devoted to the history of domestic violence between the parties. The respondent has taken intervention orders against the applicant. As stated above, the applicant is facing criminal charges in respect of an alleged assault
of the respondent. He says that he will vigorously defend those charges and says that the respondent was opportunistic in her complaints to the police as, for example, making one complaint
of assault almost immediately after he had advised her that he would
be taking family law proceedings effectively to have her removed from the home. The proceedings against the applicant are at the committal stage.
Taking the evidence as a whole, I am able to find that the relationship between the parties was a volatile one and that there were incidents
of mutual violence between them. I am not able to attribute any blame specifically and consistently to one or other of the parties in this respect.
In opening submissions, counsel for the respondent raised the issue
of domestic violence as being relevant to my determination as to property settlement. The law is, of course, well established that applications for property settlement are generally speaking “no fault” proceedings. However, it is equally clear that domestic violence
or conduct generally can be made relevant by a party in claiming
a greater contribution during the relationship if the impact of such domestic violence or conduct causes that party to undertake a greater contribution. I emphasise, however, that it is not enough for a party
to simply allege, or even prove, the fact of domestic violence.
That party must go further and somehow connect such instances
of conduct to their own contributions.[7]
[7] See Kennon v Kennon (1997) FLC ¶92-757.
In final submissions, and after having the evidence tested, counsel for the respondent did not pursue this issue vigorously. On the evidence before me I cannot find any correlation between the allegations
of domestic violence and a greater contribution by the respondent
or indeed either of the parties.
Within a limited net property pool, the applicant’s superannuation entitlement derives some significance. His gross entitlement is now $124,637.00. The evidence shows that the applicant has as times
contributed himself to his superannuation policy over and above the employer contribution and so as to achieve a beneficial annuity
or pension upon retirement. I accept Mr Cole’s evidence that he has regularly made those extra contributions himself throughout the duration of his superannuation policy but did not do so for a number
of years after separation from his previous wife which was in May 2003. Mr Cole says that he has resumed those contributions but cannot remember when he did so. I accept however that for much of his relationship with Ms Childs he was not making voluntary contributions.
Evidence adduced by the applicant from his superannuation fund shows that the date of commencement of his eligible service period was 2 June 1986 and that the date that he first became a member of the plan was 9 August 1987. The relationship between these parties commenced in about May 2003. Whilst I do not have the benefit
of actuarial evidence, it is easy for me to find that the relative contribution to Mr Cole’s superannuation entitlement during the course of this relationship has been minimal in respect of its total value.
In addition, I have found that the parties were not in a de facto relationship for a period of in excess of two years from March 2006 until June 2008. Their periods of cohabitation therefore are for about three years until March 2006 and then a further 10 months between June 2008 and April 2009. In total they cohabited for less than four years whilst the applicant’s superannuation has now accrued for about 23 years.
The respondent does not seek a splitting or flagging order in respect
of Mr Cole’s superannuation.
Conclusions as to contributions
My determination as to contributions must necessarily be seen against the short duration of this relationship.
I have found that the respondent made a direct contribution of about $13,000.00 from the child support arrears moneys she received from her former husband. That contribution was put to furniture and generally setting up home for the parties but at least matched
by Mr Cole. However, by far the greatest direct financial contribution came from the applicant via the proceeds of sale of the Property N property in an amount of approximately $113,000.00. This contribution is now evident in the equity in the Property S property. I accept, however, that there were renovations to that property albeit financed with the assistance of the interest free loan from Mr Cole’s mother but also with some assistance by the respondent through her own labours.
The other contribution factors generally favour Mr Cole. I find that
he contributed to the support of the respondent’s children. He was the major financial contributor during the course of the relationship.
He has made the post-separation contribution towards the payment
of the mortgage and outgoings on the Property S property whilst the respondent has been living there without any significant contribution save and except three payments of $800.00 towards the mortgage in the period since late 2008.
I take into account the respondent’s indirect contributions to the applicant’s superannuation entitlement but only within the context
of the short relationship.
After consideration and balance of all the contribution factors I am
of the view that there should be a distribution of the tangible assets
of the parties as to 87.5 per cent to the applicant Mr Cole and 12.5 per cent to the respondent, Ms Childs. Such a distribution takes into account Mr Cole’s superannuation accruals during the course of the relationship. There will, however, be no splitting order.
Section 90SF(3) factors
My final determination as to alteration of property interests is, of course, not based only on contributions. I am to consider the numerous matters in the legislation generally as to the needs of the parties. Those considerations are set out earlier in my reasons.
The respondent argues that Mr Cole has a greater earning capacity than her. He is in permanent employment as a [occupation omitted] with an income approaching $75,000.00 per annum. I must, however, take into account that he is currently suspended on full pay pending the resolution of the criminal proceedings against him. There is some irony in the fact that Ms Childs relies on this greater future earning capacity in Mr Cole whilst being the complainant in the assault charges against him which, on the evidence of Mr Cole, which I accept, would result in him losing his employment if convicted. I am unable
to hypothesise as to the result of those criminal proceedings and for the purposes of the applications before me I proceed on the basis that
Mr Cole currently has an income of approximately $75,000.00 per annum.
The respondent is reliant upon a disability pension. The evidence
as to her disability was scant but I am able to infer from the evidence that she has suffered some emotional and addiction difficulties
which give her this entitlement. There is some force to the argument
of Mr Cole that the respondent’s difficulties are in a sense self-inflicted
at least in respect of her addiction to alcohol. To his credit, however, he conceded in cross-examination that she most likely has little current capacity for employment. Ms Childs has re-partnered with a Mr J. There was no evidence from Mr J and I am unaware of his financial circumstances. Ms Childs says that this relationship is not a de facto one and not financially interdependent. I know little else about Mr J or the future of his relationship with Ms Childs except that he at times stays with Ms Childs in the home the subject of these proceedings, registered in the name of Mr Cole, for which he pays the mortgage and outgoings and to which Ms Childs has a conditional right of sole occupancy.
As a consequence of his greater income, Mr Cole will be able to better provide for his own superannuation which currently has a quantum
of some $124,000.00.
The evidence is clear that the duration of the relationship has had little or no effect on the earning capacity of Ms Childs. The best evidence
is that she suffered her addiction and emotional difficulty before she entered into a relationship with Mr Cole.
Ms Childs has the continuing responsibility for the primary support
of her two children from a previous relationship now aged 11 and 10 years.
With emphasis on the current discrepancy in earning capacities and
the superior current and future superannuation prospects of Mr Cole,
I am of the view that there should be a further adjustment in favour
of the respondent of 10 per cent of the tangible assets of the parties set out above (but not inclusive of the superannuation).
Conclusion
Consequently, after consideration of both the contribution and s.90SF(3) factors I conclude that the applicant should retain his superannuation entitlement but that there should be a distribution of the net tangible assets of the parties as to 77.5 per cent to the applicant and 22.5 per cent to the respondent. I calculate those net assets exclusive
of superannuation to be $126,604.00. The respondent would therefore be entitled to a cash adjustment of $28,485.00. Mr Cole will retain the home registered in his name and it is proper then that there be an order for Ms Childs to vacate that property.
Taking into consideration the short duration of the relationship, the superior contributions by the applicant from his clock of land
in particular, and the relevant needs factors, I am of the view that such a distribution is just and equitable.
The remaining issue for my determination is in respect of the chattels. There was much argument during the course of the evidence as to the origins of the chattels which I am able to find primarily remain in the home at Property S and therefore in the possession of the respondent. With reference to the list of assets set out in the applicant’s outline
of case document, the respondent was cross-examined as to which
of those items she wished to retain. There are some items of particular significance to the parties. Firstly there is a dog. Ms Childs agreed
in cross-examination that the dog could be returned to Mr Cole. Secondly there is [jewellery omitted] currently in the possession of
Ms Childs but which was presented to Mr Cole as a part of his employment in [occupation omitted]. Ms Childs claims that the [jewellery] was given to her by Mr Cole. Quite frankly, I have difficulty in understanding why she would wish to retain such an item given the breakdown of the relationship and her own evidence as to the volatile history of that relationship. I am of the view that the [jewellery] should be returned to Mr Cole given his emotional attachment to it. There is also an issue as to some sporting prints and memorabilia which the applicant says he purchased over time. I prefer the applicant’s evidence in this regard and am prepared to find that he should retain all those items.
The chattels at issue are annexed to these reasons. In cross-examination the respondent conceded that the applicant could retain the following:
·dog
·large wall cabinet – gift from applicant’s mother
·crystal cabinet – left to applicant by his grandmother
·antique clock – left to applicant by his grandmother
·Westminster fine bone china dinner set – belonging to applicant’s grandmother
·small wall unit (in entrance) – gift from applicant’s mother
·rug – gift from applicant’s mother
·outdoor setting (four chairs and a table) – gift from applicant’s mother
·tools and equipment in garage (mower, ladder grass-cutter and tools) – gift from applicant’s mother
·refrigerator in kitchen – gift from applicant’s mother
·couch and two armchairs – gift from applicant’s mother
·small television (silver) – purchased by applicant in 2004
·kennel – purchased by applicant in 2003
Of the remaining items I intend to order that the parties share those chattels item by item with each having alternate choices from the remaining list. I will order that the applicant shall have the first and then each alternate choice until the list of items is exhausted.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of McGuire FM
Date: 22 June 2010
Annexure – list of chattels
Panasonic plasma television and remote control
Large television cabinet
DVD player and remote control
PlayStation 2 console, remote control and games
Couch and two armchairs
Portable air conditioner
Large wall unit
Crystal cabinet
Antique clock
Westminster fine bone china dinner set
Small wall unit (in entrance)
Bedroom setting (master bedroom) including bed, two tables, dresser, mattress and doona
Refrigerator (in kitchen)
Washing machine
Cutlery, crockery, glassware and cooking pots
Rug
Barbeque
Outdoor setting (four chairs and a table)
Tools and equipment in garage (mower, ladder grass-cutter and tools)
DVDs and CDs in cabinet
Small television (silver)
Dog and kennel
Sporting prints (Collingwood, Socceroos, Nathan Buckley, America’s Cup)
Clothing and personal items
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