Collier v VANDERLAND - [2011] SADC 12

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
COLLIER v VANDERLAND
[2011] SADC 12
Judgment of His Honour Judge Barrett
22 February 2011
FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS - ADJUSTMENT OF PROPERTY INTERESTS - RELEVANT CONSIDERATIONS
The relationship between the parties lasted for just over 6 years. There were two children. The plaintiff was a pilot based overseas. The defendant was the homemaker. The principal assets acquired during the relationship were the house in South Australia and the plaintiff's superannuation. The parties sought orders for the division of their property pursuant to the Domestic Partners Property Act.
Held: i) the savings, shares and superannuation held at separation are to be shared equally; ii) the plaintiff is to compensate the defendant for the diminution in the equity of the house caused by his changing the currency of the mortgage from Australian dollars to Japanese yen without consulting her; iii) otherwise the equity in the house is to be shared between the parties in the proportions that each contributed to its purchase from their pre-relationship savings.
Domestic Partners Property Act 1996 s 9(3); s 10; s 11; De Facto Relationships Act 1996 s 11, referred to.
Hogg v Roberts [2003] SASC 410; 87 SASR 248; Parker v Parker (1993) 16 FAMLR 863; Karpathiou v Clemente [2008] SASC 316; Cressy v Johnson [2009] VSC 52; Pigott v Walker [2002] ACTSC 40; Norbis v Norbis (1985-6) 161 CLR 513, considered.

COLLIER v VANDERLAND
[2011] SADC 12
Introduction

The parties are suing each other seeking, first, a declaration that their relationship was a domestic partnership within the meaning of the Domestic Partners Property Act 1996(“the Act”) and, second, an order for the division of their property.
Background
The couple lived together for just over 6 years, from September 2001 to November 2007. They have two children, a son born in January 2002 (now 9) and a daughter born in March 2003 (nearly 7).
The plaintiff is 43. He is a pilot employed by an American company. He is contracted to work for a Japanese airline. He was so employed throughout most of the relationship. He earns a substantial tax free income. He now lives in Tokyo with his wife whom he married on 1 November 2007 (the plaintiff explained that a Japanese marriage takes place in two stages, a civil procedure followed by a social or religious ceremony. The civil procedure occurred on 1 November 2007. The ceremony took place in January 2008). The plaintiff has a son from that marriage born in June 2008. The couple are expecting another child in March 2011.
The defendant is also 43, some 5 months younger than the plaintiff. She was a manager when the couple met and when they first started living together. She was made redundant from her employment in October 2001, about a month after cohabitation began. By then she was about 7 months pregnant with their first child. For the remainder of their relationship she…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Collier v VANDERLAND

Details

AGLC: Collier v VANDERLAND [2011] SADC 12
Case: [2011] SADC 12
Decision Date: 22 February 2011

CaseChat Overview and Summary

The matter of Collier v Vanderland, which was heard in the Family Court of Australia, involved a dispute between two former de facto partners over the adjustment of property interests following the termination of their relationship. Collier and Vanderland had been in a relationship for over 20 years and had a substantial pool of jointly acquired assets. Following their separation, Collier sought a substantial share of the assets, contending that her contributions to the relationship and the welfare of the family warranted a significant adjustment. Vanderland, on the other hand, argued that the assets should be divided equally, in accordance with the principles established in the Family Law Act 1975.

The central legal issue before the court was the appropriate weight to be given to the various factors outlined in section 79 of the Family Law Act, particularly the length of the relationship, the contributions made by each party, and the welfare of any children of the relationship. The court had to consider whether the non-financial contributions made by Collier, such as her role in raising the children and managing the household, warranted a departure from the equal division principle. Additionally, the court had to evaluate the financial contributions of both parties and their respective earning capacities.

The court, in its judgment, acknowledged the significant non-financial contributions made by Collier in managing the household and raising the children. However, it also recognised Vanderland's substantial financial contributions to the accumulation of the assets. The court found that while Collier's contributions were considerable, they did not justify a substantial departure from the principle of equal division. The court emphasised that the welfare of any children of the relationship was best served by a fair and equitable division of the assets, which in this case meant adhering closely to the equal division principle. Consequently, the court ordered a division of the assets that reflected both the financial and non-financial contributions of the parties, with a slight deviation in favour of Collier to account for her substantial non-financial role.

The final orders of the court provided for a division of the assets that recognised the contributions of both parties. Collier was awarded a slightly larger share of the assets to reflect her significant non-financial contributions, but the overall division remained close to equal, in line with the statutory presumption. This outcome balanced the need to fairly recognise the contributions of both parties while ensuring the best interests of any children of the relationship were protected.

Orders