D, N H v T, L E - [2015] SADC 147

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
D, N H v T, L E
[2015] SADC 147
Judgment of His Honour Judge Chivell
30 October 2015
FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS - ADJUSTMENT OF PROPERTY INTERESTS
Domestic partnership dissolved after over 20 years. Extension of time to bring the application granted. House property only asset under consideration – relevant factors taken into account and property divided according to established principles.
Domestic Partners Property Act 1996 (SA) s 3, s 9, s 10, s 11; Commonwealth Powers (De Facto Relationships) Act 2009 (SA); Law of Property Act 1936 (SA) s 69, s 70, referred to.
Cooper v Lees (2009) 267 LSJS 53; Hogg v Roberts (2003) 87 SASR 248; H v G [2005] SASC 344; Evans v Marmont (1997) 42 NSWLR 70; Ferris v Winslade (1998) 22 Fam LR 725, considered.

D, N H v T, L E
[2015] SADC 147

Mr D has made an application for division of property pursuant to s 10 of the Domestic Partners Property Act 1996 (SA) (‘DPPA’). Neither he nor Ms T, the defendant, was represented by counsel at the trial.
Application of the Domestic Partners Property Act
Section 9(1) of the DPPA allows a domestic partner to apply to a court for division of property after the domestic partnership ends. An application may only be made if the applicant or respondent is resident in South Australia when the application is made; the parties were resident in South Australia for the whole or a substantial part of the period of the relationship; and the domestic partnership existed for at least three years or there is a child of the domestic partnership.
A domestic partner includes a person who lives in a close personal relationship.[1] A close personal relationship is defined as ‘the relationship between 2 adult persons … who live together as a couple on a genuine domestic basis’. The note to the definition reads:
Two persons may live together as a couple on a genuine domestic basis whether or not a sexual relationship exists, or has ever existed, between them.
[1] s 3.
There is no doubt that Mr D and Ms T were domestic partners for more than three years. There are also two children of the relationship.
It is common ground that the relationship between Mr D and Ms T began in about 1986, the year they came to Australia from New Zealand, and ended prior to July 2010. Mr D said it ended in 2009, when he left the bedroom he shared with Ms T and moved to sleep in another room. Ms T argued that the relationship ended much earlier, in 2001 or 2002. She conceded that they continued to share a bed, albeit with pillows dividing them, until December 2009.[2]
[2] T 6.
The power to make laws concerning de facto relationships was referred by the South Australian Parliament to the Commonwealth Parliament by the Commonwealth Powers (De Facto Relationships) Act 2009. This Act commenced on 1 July 2010.[3]
[3] SA Government Gazette 4/2/10, p 461.
A de facto relationship which suffered a breakdown prior to 1 July 2010 continues to be governed by the DPPA. I am satisfied that I have jurisdiction to hear Mr D’s application.
The most significant property to be considered is the house and land formerly occupied by the parties at Wattle Park. Ms T still resides there with one of the children. Mr D lives in rented accommodation in another suburb.
The power to make an order of the type sought by Mr D comes from s 10 of the DPPA:
10—Power to make orders for division of property
(1) On an application for the division of property after the end of a domestic partnership, the court may make such orders as it considers necessary to divide between the domestic partners the property of either or both partners in a way that is just and equitable.
(2) For example, the court may make orders for—
(a) the transfer of property from one domestic partner to the other; or
(b) the sale of property and the division of the net proceeds between the domestic partners in proportions decided by the court; or
(c) the payment by one domestic partner of a lump sum to the other.
Extension of Time
The application was commenced on 4 June 2014. Section 9(3) of the DPPA requires that an application must be made within one year of the end of the domestic relationship unless the court, after considering the interests of both domestic partners, is satisfied that an extension of this period of limitation is necessary ‘to avoid serious injustice to the applicant’.
Doyle CJ discussed the factors relevant to an application for extension of time under the DPPA in Cooper v Lees.[4]
[4] (2009) 267 LSJS 53.
Applying what his Honour said in Cooper v Lees to the facts of this case, I took into account the following factors which I consider relevant to whether the application for extension of time should be granted:
·Mr D’s genuine attempts to settle the matter without resort to litigation, including direct conversation with Ms T, correspondence between his solicitor and Ms T, and attempts to have Ms T engage in mediation through Relationships Australia;
·after the ‘formal’ ending of the domestic relationship in December 2009, when Mr D moved out of the shared bedroom into another room, Mr D continued to live ‘under one roof’ with Ms T until November 2014, when he moved out of the house altogether. It was only then that it was conclusive that the matter could not be settled without resource to litigation;
·as alternatives to relief under the DPPA, Mr D seeks equitable relief, or an order for sale of the property pursuant to ss 69 and 70 of the Law of Property Act 1936 (SA);
·Ms T did not oppose an extension of time being granted. Having regard to her health, her financial position and her ongoing care of one of the children of the relationship, she probably has more to gain from relief under the DPPA than relief from either of the alternatives, since it is ‘intended to provide a form of relief more flexible than that available in the application of equitable principles, and one better calculated to ensure overall justice and fairness’.[5]
[5] Cooper v Lees at [38].
For those reasons, I granted an extension of time.
The Application
Mr D and Ms T met in New Zealand in 1982. He said they commenced cohabiting in 1985, she said 1986. Nothing turns on this discrepancy. In 1986 they emigrated to Australia, settling in Adelaide. Neither party owned significant assets at that stage. They lived in rented accommodation until 1999, when the Wattle Park property was purchased in Ms T’s name.
Until 1995, both parties had full-time employment – Mr D in the construction industry as a carpenter and Ms T performing clerical duties in private enterprise.
The first child of the relationship was born in October 1995. Ms T has not had formal employment since shortly before the birth. Since that time, she has done some part-time clerical work in Mr D’s business, and otherwise acted as homemaker and parent.
Throughout the same period, Mr D has worked as a carpenter/builder, initially as an employee and later as a sole trader/contractor, and then as the sole director of a company.
Matters for Consideration by the Court
Relevant parts of s 11 of the DPPA are as follows:
11—Matters for consideration by court
(1) In deciding whether to make an order for the division of property under this Part, and if so the terms of the order, the court—
(a) must consider the financial and non-financial contributions made directly or indirectly by or on behalf of the domestic partners to—
(i) the acquisition, conservation or improvement of property of either or both partners; or
(ii) the financial resources of either or both partners; and
(b) must consider the contributions (including homemaking or parenting contributions) made by either of the domestic partners to the other partner or to children of the partners or either of them; and
(c) …
(d) may have regard to other relevant matters.
Contributions to Acquisition, Conservation or Improvement of Property
The purchase price of the Wattle Park property was $230,000.00. With stamp duty and other charges, the total was $238,386.87.[6] Ms T had received a gift of shares from her late father’s estate in 1997. From that, she contributed:
[6]    T 23.
$16,000.00 – initial deposit
  $90,000.00 – further deposit
  $20,500.00 – further deposit
  $     520.00 – first mortgage instalment
  $20,000.00 – on 23 March 2006
  $ 5,000.00 – on 23 March 2006
  $10,000.00 – on 3 February 2014
$ 8,000.00 – since 14 December 2014
Total:       $170,020.00
Mr D paid all the mortgage instalments, apart from the first one, until he left in November 2014. These total $183,507.00.[7]
[7] Exhibit P1.
Both parties contributed to the maintenance or ‘conservation’ of the property, Ms T as homemaker and, in her words, ‘builder’s labourer’, and Mr D as a tradesman. Without descending into unnecessary detail, I regard their contributions as of equal value.
Ms T was critical that Mr D did not do more to conserve or improve the property. It is not necessary that I inquire into this – the DPPA requires me to examine what he did do in that regard, rather than inquire into whether or not he could have done more.
Division of Property
The parties agree that the only valuation available puts the value of the Wattle Park property at $595,000.00 as at 31 October 2014. Mr D considers this conservative (he used the term ‘fire sale’[8]). Ms T considers it accurate because the house is in poor condition.[9]
[8] T 67.
[9] T 27.
Since leaving the house, Mr D has taken some furniture and his personal equipment and effects, along with his tools and building equipment. Some furniture remained, and Ms T has purchased more since he left.
I have no specific evidence which would justify any further division of property other than the real estate.
Principles to be Applied
The starting point in cases of this type is always the judgment of the Full Supreme Court in Hogg v Roberts.[10] That involved the interpretation of the previous legislation, the De Facto Relationships Act 1996, but the terms of s 11(1) of that Act are the same. Doyle CJ, with whom Perry and Gray JJ agreed, said:
[10] (2003) 87 SASR 248.
My understanding of the Act is that the requirement to make an order that is “just and equitable” does not give rise to a general and unfettered discretion. First of all, the court is dividing property, not settling all outstanding financial issues as between the partners. Secondly, s 11(1) indicates that the contributions referred to in that provision are important considerations in deciding what is just and equitable. The initial and primary focus must be on the property in question, contributions to that property, contributions to financial resources and then contributions by one party to the other and to the children.
However, the obligation under s 11(1)(d) to have regard “to other relevant matters” means the contributions are not the only matter for consideration. It is to be noted that the court must have regard to “relevant matters”. I think that must mean matters relevant to a just and equitable division of property. The provision is not as wide as, for example, a direction to have regard to such matters as the court thinks fit.
Bearing that in mind, I consider that it is not the role of the court to use the division of property to remedy any justified grievances that one party may have against the other, or to compensate one party for disappointed or unfulfilled expectations. The focus appears to me to be on a just and equitable distribution of property, after considering primarily contributions of the kind identified by s 11(1) of the Act. The task of the court is a narrower one than the task of the court under s 79 of the Family Law Act 1975 (Cth). The relevant considerations are more narrowly confined. Matters that are likely to be relevant are the length of the relationship and the immediate needs of the parties. I say “immediate needs” because the court’s focus is on the division of property. In deciding what is “just and equitable”, the needs of the parties at that time will be relevant. However, the court is not dividing property with a view to providing, for example, for the continuing maintenance of the parties, or taking into account their future financial prospects.
Other matters may be relevant. It would be dangerous to try to draw a line here in the abstract. I go no further than to say that the focus is on the just and equitable division of property and not on an order that is fair having regard to all the circumstances surrounding, and everything that happened during, a relationship.
I agree with the observations made in decisions in other States that the court is not concerned with attributing fault for the breakdown of the relationship; that contributions as homemaker and parent are not to be treated as inferior to material or financial contributions, they are to be taken into account in a substantial way; that contributions of a non-material kind are to be assessed in a broad way, rather than by reference to the rate of remuneration payable to commercial providers of such services, and that there is no reason to approach the matter on the basis of an assumption that an equal division is appropriate, unless there is good reason to depart from that position.
…
In Parker v Parker (1993) 16 Fam LR 863 Young J suggested a four-stage approach which will often be helpful. The four stages he suggested (at 870) are:
(i) to identify and value the assets of the parties;
(ii) to determine whether any, and if so what, contributions of type A or type B had been made by each partner;
(iii) to determine whether in the circumstances the contributions of the applicant had already been sufficiently recognised and compensated for;
(iv) to make the appropriate adjustment.
Once again, he was concerned with different legislation, but the process he suggested is likely to prove helpful under the Act. However, I emphasise that this is simply one approach. In some cases a broader approach will work better. There is no need to take what might be called a narrow approach involving a careful tracking of income and expenditure, contributions made and benefits received. The legislation requires a reasonably broad and practical approach.
Between stages (iii) and (iv) it will be necessary to consider whether there are “other relevant matters” to be considered. It will also be necessary to bear in mind that the object is to divide property in a “way that is just and equitable”. As I have said, I do not treat that expression as opening up all aspects of the relationship, but it appears to me that the matters identified in s 11(1) of the Act do not alone dictate the order to be made under s 10(1). They are matters to be considered, they are important, but they will not necessarily be decisive.
In H v G,[11] Layton J, with whom Sulan and White JJ agreed, considered interstate authority, particularly Evans v Marmont[12] and Ferris v Winslade.[13] Her Honour then referred to Hogg v Roberts (supra), concluding, at [124]-[125]:
Finally, it is pertinent to note that the Chief Justice in Hogg stated in [45], at 254:
if Ms Roberts had other assets, or other sources of income, Mr Hogg’s position might be a relevant matter, leading to the making of a lesser award in favour of Ms Roberts. But in the circumstances it seems to me that, as the Goolwa house is the only available asset, the approach that the Judge took is correct…
Contrary to the defendant’s present argument, this passage would seem to suggest that circumstances operating beyond the date of judgment are relevant to the order that should be made at the time of judgment.
In summary on this point, the provisions in ss 10, 11 and 12 of the Act contemplate that not only is the Court required to consider the financial and non-financial contributions either direct or indirect as well as the contributions made by one partner to another or to the children of partners; the Court may have regard to the “means and needs” of the parties insofar as they relate to the circumstances of the de facto relationship. This may in turn allow the Court to consider the longer term effect of such contributions when making an order which is “just and equitable”.
[11] [2005] SASC 344.
[12] (1997) 42 NSWLR 70.
[13] (1998) 22 Fam LR 725 at 732.
As to Ms T’s ‘means and needs’, she has, in addition to the Wattle Park property, the furniture and other equipment in the house, a motor vehicle worth about $7,000.00, a superannuation account worth about $8,000.00, savings of less than $2,000.00, and a modest share portfolio.[14]
[14] T 28-9 – at a further hearing on 23 October 2015, Ms T provided details of her shareholding (Exhibit D4), but there is no valuation. I remain satisfied that the portfolio can be described as modest.
Mr D lives in rented accommodation, has some furniture, his tools and equipment, a van which is subject to finance, a superannuation account containing $15,250.00 as at 30 June 2012,[15] and a dismantled classic motorcycle worth about $5,000.00.[16]
[15] T 30.
[16] T 37.
Both parties have credit card debts. Mr D’s is about $11,500.00 (mostly legal fees) and Ms T’s is about $5,000.00.
Mr D has his business. He has supplied Ms T with full documentation. He states that his assets are worth $30,000.00 to $40,000.00 (for plant and equipment)[17] and his liabilities are about $50,000.00.[18] Ms T did not challenge these figures, although she expressed surprise, having regard to a high turnover, that Mr D’s net income was only $39,000.00 last year.[19]
[17] T 39.
[18] T 38.
[19] T 46.
Both parties sought to present further evidence by posting documents to the court after the evidence had closed and I had reserved my decision. I convened a further hearing on 23 October 2015, gave both parties leave to reopen their cases, and received the documents into evidence (Exhibits P3 and D4).
Exhibit P3 is an affidavit of Mr D annexing documents which disclose payments he made to his solicitors. Although I received the documents, I explained to Mr D that the question of costs must await the judgment I give.
Exhibit D4 consists of a set of detailed written submissions by Ms T, some documents concerning Mr D’s business, details of her share portfolio and details of payments into Mr D’s business bank accounts.
As to the written submissions, they seek to re-agitate matters discussed at the trial, provide irrelevant information, and make claims for money which do not amount to a division of property. For example, Ms T claimed:
·a share of the plaintiff’s profits from 1990-2014 – there is no evidence of what those profits were – I have no power to order such a payment;
·unpaid wages as a full-time housekeeper – there is no evidence to support such a claim;
·unpaid wages as a part-time secretary – there is no evidence to support such a claim;
·unpaid superannuation contribution – there is no evidence to support such a claim.
In all the circumstances, the additional material provided does not assist me to reach a conclusion on the claim before the court.
Mr D said his business is ‘struggling’[20] in the current economic climate, but he has noticed that there are signs of improvement, and he is ‘hopeful’[21] for the future. He pays child support for the younger, 15-year-old, child, who lives with Ms T. The amount of that support, of course, is dependent on his income. That is a not a matter for this court.
[20] T 38.
[21] T 47.
Clearly, Mr D’s capacity to earn income is much greater than Ms T’s. She has the care of their son, but her health prevents her from returning to the workforce.[22] Her ‘means and needs’ are such that she should receive a higher share of the assets of the relationship. I fix her share at 70%.
[22] Exhibit D2.

For those reasons, I consider the following orders are appropriate by way of division of property pursuant to s 10 of the DPPA:
1.That Ms T pay to Mr D the sum of $178,500.00, being 30% of the value of the Wattle Park property of $595,000.00, within two calendar months of this date.
2.If the said sum is not paid by the due date, the Wattle Park property be sold and the net proceeds of sale be divided, as to 70% to Ms T and as to 30% to Mr D.
I have not been more specific as to the detailed address of the Wattle Park property out of consideration for the privacy of Ms T. The detailed address will be specified in the order of the court.
I will hear the parties as to any consequential orders.