Day & Jacobsen
[2022] FedCFamC2F 1163
Federal Circuit and Family Court of Australia
(DIVISION 2)
Day & Jacobsen [2022] FedCFamC2F 1163
File number(s): PAC 4327 of 2019 Judgment of: JUDGE NEWBRUN Date of judgment: 30 August 2022 Catchwords: FAMILY LAW – de facto property adjustment proceedings – threshold hearing – declaration that the parties were in a de facto relationship, within the meaning of s 4AA(1) of the Family Law Act 1975 (Cth), for a period of less than two years, and the Applicant made substantial contributions of a kind mentioned in s 90 SM(4) and that a failure to make the declaration would result in serious injustice to the Applicant – property adjustment Orders made Legislation: Family Law Act 1975 (Cth), ss 4AA, 90RG, 90SB, 90SF, 90SM, 90SB(c) Cases cited: Dover & Mosely & Anor [2019] FCCA 2488
Lotta & Lotta [2017] FamCA 50
Division: Division 2 Family Law Number of paragraphs: 64 Date of hearing: 4–5 August 2022 Place: Parramatta Solicitor for the Applicant: Mr Tees Counsel for the Respondent: Mr Strik Solicitor for the Respondent: Jack Riggs Solicitors ORDERS
PAC 4327 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS DAY
Applicant
AND: MR JACOBSEN
Respondent
order made by:
JUDGE NEWBRUN
DATE OF ORDER:
30 August 2022
THE COURT ORDERS THAT:
1.The Court declares, pursuant to section 90SB(c) of the Family Law Act 1975 (Cth) (“the Act”), that the Applicant and the Respondent were in a de facto relationship, within the meaning of section 4AA(1) of the Act, for a period of less than two years, and the Applicant made substantial contributions of a kind mentioned in paragraph 90SM(4) (a), (b) or (c), and that a failure to make the declaration would result in serious injustice to the Applicant.
2.Within three (3) months from the date of these Orders, the Respondent shall pay to the Applicant the sum of $27,787.
3.Following payment of the above sum of $27,787 to the Applicant by the Respondent, the Applicant shall forthwith do all things and sign all documents necessary to remove the caveat on the Respondent’s real estate property at B Street, Town C, NSW, but at the Respondent’s cost.
4.The cats named D and E, and the dogs named F and G, shall remain in the permanent care of the Respondent, and the Applicant, within 28 days, shall sign all necessary documents to cause such animals to be registered in the name of the Respondent.
5.Except as provided above, each party shall be entitled, to the exclusion of the other party, to the sole legal and beneficial ownership of all other property, both real and personal, which is registered in each of their names or is in their current possession or control, including their superannuation entitlements, and they shall be solely liable for and indemnify the other against any personal liabilities.
6.In the event that neither party refuses or neglects to sign within 14 days after receipt of a written request to do so any documents necessary to put into effect the terms of these Orders, the Registrar of the Parramatta Registry of the Federal Circuit and Family Court of Australia, or such other person appointed by the Court, is hereby appointed pursuant to section 106A of the Act to execute all such deeds and documents in the name of the defaulting party and do all acts and things necessary to give validity an operation to these Orders and further that the defaulting party pay the costs of the other party in relation to the obtaining of the Registrar’s signature.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Day & Jacobsen has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
Introduction
The Applicant ultimately seeks property adjustment Orders against the Respondent under s 90SM of the Family Law Act 1975 (Cth) (“The Act”).
It is common ground that the parties were only in a de facto relationship from about October 2017 to about 5 August 2019, being a period of less than two years.
These Reasons relate, inter alia, to the determination of the Applicant’s application for a declaration that, being a party to a de facto relationship with the Respondent, she made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b), or (c), and that a failure to make the declaration would result in serious injustice to her.
The Respondent opposed the Applicant’s above proposed declaration and sought, inter alia, a dismissal of her proceedings.
A threshold hearing was held on 4 August 2022 relating to the declaratory relief sought. The parties agreed that the Court should also proceed to determine the proceedings on a final basis if the Court made the above declaration. The parties agreed that evidence in the threshold hearing should also be evidence in the final hearing if the Court made the above declaration.
Material relied upon
The Applicant relied upon her:
(a)Case Outline filed 3 August 2022;
(b)Amended Initiating Application filed 25 October 2021;
(c)Financial Statement filed 3 August 2022;
(d)Three Affidavits filed 4 September 2019, 27 September 2019, and 15 May 2022.
The Respondent relied upon:
(a)Case Outline filed 3 August 2022;
(b)Amended Response to Initiating Application filed 19 November 2021;
(c)His Affidavit filed 22 January 2022;
(d)His Financial Statement filed 22 January 2022.
The following Exhibits became evidence in the proceedings:
(a)Exhibit A: Applicant’s medical documents;
(b)Exhibit B: Joint Balance Sheet;
(c)Exhibit C: Before cohabitation Balance Sheet;
(d)Exhibit D: Respondent’s Tender Bundle of documents.
Evidence
The Court has considered the documentary material relied upon by the parties set out above, and the parties’ oral evidence. The Court has considered both parties’ contentions in relation to the Applicant’s claimed relief in these proceedings.
The standard of proof applied by the Court in respect to the evidence is the balance of probabilities. The Court does not propose to set out the entirety of the evidence. Relevant evidence relating to the issues to be determined will be set out below.
Applicant’s application for a declaration that, being a party to a de facto relationship, she made substantial contributions of a kind mentioned in paragraph 90 SM(4)(a), (B), or (c), and that a failure to make the declaration would result in serious injustice to her
The Court is satisfied, pursuant to s 90RG of the Act that the Respondent was ordinarily resident in a participating jurisdiction when the primary proceedings commenced on 4 September 2019, namely New South Wales.
The Court needs to determine whether “the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b), or (c), and that a failure to make the order or declaration would result in serious injustice to the Applicant”. The Court sets out relevant statutory provisions and refers to its findings below.
Section 90SB provides:
A Court may make an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL, in relation to a de facto relationship only if the Court is satisfied:
(a) that the period, or the total of the periods, of the de facto relationship is at least 2 years; or
(b) that there is a child of the de facto relationship; or
(c) that:
(i) the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); and
(ii) a failure to make the order or declaration would result in serious injustice to the Applicant; or
(d) that the relationship is or was registered under a prescribed law of a State or Territory.
Section 90SM(4) provides:
(4) In considering what order (if any) should be made under this section in property settlement proceedings, the Court must take into account:
(a) the financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i) to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii) otherwise in relation to any of that last-mentioned property;
whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i) to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii) otherwise in relation to any of that last-mentioned property;
whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(c) the contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship and any children of the de facto relationship, including any contribution made in the capacity of homemaker or parent.
In Dover & Mosely & Anor [2019] FCCA 2488, Lapthorn J discussed the meaning of “substantial contributions” under s 90SB(c)(i) stating:
17. What is meant by the term “substantial contributions”? The Full Court of the Family Court of Australia in Redmond & Mullins cited and affirmed the following view of Holden CJ in V & K:
In my view, substantial means something more than usual or ordinary. In my view [the section] is aimed at more exceptional circumstances where serious injustice may be caused by the application of [the relevant provision].
18. Johnston J addressed substantial contributions in Wall & Mitchell. After referring to the decisions of Miller & Trent and V & K he said:
[303] With respect to both Coates FM and Holden CJ, I agree. If usual or ordinary contributions were sufficient to amount to “substantial contributions” within the meaning of s 90SB(c) , there would be little purpose in the two years requirement in s 90SB(a) of the Act. This is because in most de facto relationships to some extent usual or ordinary contributions would be a feature of such relationships.
19. The Full Court decision in Harriot & Arena is instructive in considering the meaning of “substantial contributions”:
59. If the appellant’s contribution of the net proceeds of her home constituted a “substantial” contribution, it will be unnecessary for us to determine the somewhat more vexed question of whether the actions taken by the appellant in relation to her career and her child should be characterised as “contributions”.
60. The trial judge made no finding as to whether the appellant’s contributions were “substantial”. However, he did record that the appellant relied on the decision of Altobelli FM (as his Honour then was) in Webb & Douglas [2012] FMCAfam 1049 to support the assertion that “substantial” means “something more than usual or ordinary”, this being the view of Holden CJ in V and K [2005] FCWA 80 when dealing with equivalent legislation. (Holden CJ’s formulation has been followed in other cases, some of which were cited by Watts J in Lee v Hutton (2013) 50 Fam LR 322 at [180]–[182]).
61. Rather than agreeing with Holden CJ, it seems to us that Altobelli FM disagreed with him, as appears from this extract from Webb & Douglas (original emphasis):
21. The cases therefore seem to suggest that before a contribution can be substantial, it must be more than usual or ordinary. This is a vague and subjective standard. In the diversity of relationships that present before Courts exercising jurisdiction under the Family Law Act how is “usual” or “ordinary” to be determined other than by reference to the facts of the case before the Court at the time? How could a judicial officer make the comparisons that need to be made by using this standard without referring to extrinsic evidence ie. the judicial officer’s own perception of contribution in other cases?
22. By contrast it is interesting to note that FM Coates in Miller & Trent referred to dictionary definitions of “substantial” at paragraph 59 of his judgment. He noted, for example, that the Macquarie Encyclopaedic Dictionary defined substantial as “an ample or considerable amount as well as something having real worth or value”. His Honour also referred to the Concise Oxford Dictionary meaning of “having real importance or value and to a considerable amount”. Federal Magistrate Coates also referred to a Family Provision Act (1982) (NSW) decision in Wentworth & Wentworth (1995) 37 NSWLR 703 where the Court held that substantial “means not illusory, something considerable or large”.
23. Whereas the V & K and Miller & Trent definition of substantial invite comparison to other cases, the dictionary definitions invite a more contextual analysis. In other words the question is whether the contribution is substantial in the context of the case being determined, and not by reference to other cases.
62. While Altobelli FM erroneously assumed in Webb & Douglas that a Court could have jurisdiction to deal with a de facto property dispute where it was common ground that neither s 90SK(1)(a) or s 90SK(1A) had been satisfied, his Honour’s discussion draws attention to deficiencies in the “something more than usual or ordinary” formulation. Noting that the matter was not the subject of proper argument, as presently advised we are not attracted to the “something more than usual or ordinary” definition, since it would, for example, seem to exclude parent and homemaker contributions in a lengthy marriage. This could not be right, as Holden CJ implicitly acknowledged at [20]–[21] in V and K. We would therefore be inclined to treat anything said in V and K as being confined to its own unusual facts, which involved two self-represented litigants, and where the issue was whether “substantial contributions” had been made in the 22 days the parties spent living in Western Australia.
63. To the best of our knowledge, the meaning of “substantial contributions” has not been the subject of careful consideration by this Full Court, although the matter was touched on in Redmond & Mullins [2015] FamCAFC 69, where V and K was cited. However, the meaning of “substantial” has been the subject of much discussion by other Courts. Our review of those authorities indicates support for these observations of Deane J in Tillmans Butcheries Pty Ltd v The Australasian Meat Industry Employees’ Union [1979] FCA 85; (1979) 27 ALR 367 at 382:
The word “substantial” is not only susceptible of ambiguity: it is a word calculated to conceal a lack of precision. In the phrase “substantial loss or damage”, it can, in an appropriate context, mean real or of substance as distinct from ephemeral or nominal. It can also mean large, weighty or big. It can be used in a relative sense or can indicate an absolute significance, quantity or size. The difficulties and uncertainties which the use of the word is liable to cause are well illustrated by the guidance given by Viscount Simon in Palser v Grinling (...[1948] AC 291 at 317) where, after holding that, in the context there under consideration, the meaning of the word was equivalent to “considerable, solid or big”, he said: “Applying the word in this sense, it must be left to the discretion of the judge of fact to decide as best he can according to the circumstances of each case...
64. Clearly the “substantial contributions” test is a subjective one. Any effort to elucidate its meaning by use of other words or phrases will simply replace one subjective test with another. It will remain a matter of impression whether the contributions are considered to be “substantial”. While recognising that the test is subjective, we are nevertheless inclined to agree with Thackray J, who said in Thorburn and Oswald [2007] FCWA 43 at [54] that a trial judge
would need to interpret the word “substantial” in the context of the financial position of the parties. What might appear to be a “substantial contribution” for people of limited financial resources, might not be substantial in a case involving very wealthy parties.
65. To like effect, see Oakley and Roche [2009] FCWA 132 at [15] per Crisford J.
66. As noted, the trial judge made no finding as to whether the appellant’s submissions [sic] were “substantial”. We consider that the contribution of $80,000 from the sale of the appellant’s home was “substantial”, and we note that the Respondent effectively conceded as much, since his counsel accepted that the application of those funds in Vanuatu represented a “substantial” contribution. That being the case, it is unnecessary for us to come to a concluded view about the other “contributions” upon which the appellant relied.
(Footnotes omitted)
The Court makes the following findings on the balance of probabilities. The Court should state that it has considered all the Applicant’s allegations as to contributions made by her during the parties’ relationship.
The Applicant made financial contributions towards the acquisition or improvement of:
(a)The Respondent’s cash assets.
The proceeds of sale of the Applicant’s property at Town H, which was sold in December 2018, with the net settlement amount payable by the purchasers being $51,575, was paid to the Respondent. The Court finds that the Respondent only repaid the sum of $10,000 to the Applicant. The Court now sets out its reasoning for these findings.
The sum of $31,000 was paid into the Respondent’s Westpac bank account on 5 December 2018, such sum being part of the net proceeds of sale of the Town H property. Despite the lack of clarity from the Respondent’s bank statements as to the source of various credits to that account after 5 December 2018, the balance of settlement proceeds of sale being $20,575, payable by the purchasers of the Town H property, were probably paid progressively to the Respondent after 5 December 2018. The Court observes that the epitome of mortgage (see pages 33 and 37 of the Respondent’s affidavit) states that the purchaser’s mortgage loan of $20,575 was to be paid to the Respondent’s bank account.
The Court does not accept the allegations of the Respondent that he progressively repaid the above sum of $51,575 to the Applicant in repayment to her for such sum. In this context, the Court refers, inter alia, to the evidence of the Respondent in cross-examination as follows:
Mr Tees:If we take you to where you summarise all the — or attempt to summarise all the payments you talk about…transactions at paragraph 69 of your Affidavit of 22 January…How are you able to distinguish between items paid on your behalf such as groceries, alcohol and tobacco and other moneys that you say are in effect reimbursed to Ms [[Day]] by you? How do you distinguish between all those items in all the different various bank statements? Is there any one item you can point to me where it is clear what the payment was for?
Mr Jacobsen: Well no not really, it would be hard to say what it was for at the time.
Mr Tees: Sorry, could you just repeat that?
The Court: “It is hard to say what it was for at the time.”
Mr Tees: So you say that in respect of quite a lot of the items you refer to at paragraph 69 in your Affidavit and also in respect of quite a number of the transfers in your Westpac bank statement, is that correct?
Mr Jacobsen: Correct.
The Court observes, consistent with the above testimony of the Respondent, that the Respondent himself, in his Affidavit, had referred to transferring sums of money to the Applicant for living expenses.
The Court, further in this context, refers to and accepts the Applicant’s evidence that, at the request of the Respondent, during the parties’ relationship, she had paid for alcohol and tobacco on behalf of the Respondent, and for this purpose, the Respondent had transferred moneys from his bank account to the Applicant.
The Court finds that a tilt tray Mobile Home was purchased by the Respondent, and registered in the name of the Applicant, on about 5 December 2018 in the sum of $25,000. The Respondent utilised the above sum of $31,000 paid into his bank account on 5 December 2018 to purchase this Mobile Home. The Court finds that the Respondent caused the Mobile Home to be sold a short time later on 3 February 2019 for about the sum of $25,000. The Court finds, on the balance of probabilities, that he only repaid $10,000 to the Applicant from the sale proceeds of the Mobile Home via a payment to the Applicant’s daughter of $10,000; in this context, the Court accepts the detailed evidence of the Applicant, in particular at pages 9 and 10 of her Affidavit filed 15 May 2022. The Court does not accept the evidence of the Respondent that he does not know how much the Applicant sold the Mobile Home for nor what she spent the money on.
The Applicant made non-financial contributions towards the conservation or improvement of:
(a)The Respondent’s property at B Street, Town C.
The Applicant assisted the Respondent to clean up the B Street, Town C property (purchased by the Respondent in January 2018) and was aided by her friend Ms J; several loads of rubbish were taken to the tip.
(b)The parties’ animals (horses and domestic pets), during the parties’ relationship, by providing care for them.
The Applicant made a contribution to the welfare of the family constituted by the Applicant and the Respondent through her financial contributions towards the purchase of groceries and living expenses of the parties. It is likely that the Applicant contributed towards household chores being carried out, including attending to the purchase of groceries, during the parties’ relationship. If the Court is incorrect in its above categorisation of the Applicant having contributed monies towards the Respondent’s cash assets, then such contribution of monies to the Respondent could be regarded as a contribution to the welfare of the family.
The Court finds that the above contributions by the Applicant, when considered together and viewed holistically, constituted substantial contributions by the Applicant for the purposes of 90SB(c)(i) and that a failure to make an Order under s 90SM would result in serious injustice to the Applicant.
In respect to the substantial contributions and serious injustice issues referred to above, the Court observes and takes into account, inter alia, that the Applicant and the Respondent have been persons of modest financial means and assets, that the Applicant owned the real estate property at Town H at the commencement of the parties’ relationship being her only significant asset, that the Town H property was sold by the Applicant during the parties’ relationship with the net proceeds of sale ($51,575) being paid to the Respondent, and with only $10,000 effectively being repaid to her through $10,000 having been paid by the Respondent to her daughter. The Applicant now owns no real estate, no significant cash assets, and otherwise owns assets of very modest value.
The Court will make a declaration accordingly.
Property adjustment
Legal principles: property adjustment
In Lotta & Lotta [2017] FamCA 50 Foster J stated:
281. The approach to the determination of an application under s 79 of the Act is set out in Stanford v Stanford (2012) 247 CLR 108 and further considered by the Full Court in Bevan & Bevan [2014] FamCAFC 19, Chapman & Chapman (2014) FLC 93–592 and Scott & Danton [2014] FamCAFC 203.
282. The Court must identify the existing legal and equitable interests of the parties in the property, the liabilities and financial resources of the parties at the time of the hearing and then whether it is just and equitable to make a property settlement order.
283. Such a consideration should not be guided by an assumption that the parties’ rights to or interests in property are or should be different from those that then exist. The question is whether those rights and interests should be altered.
284. There is no presumption that one or other party has the right to have the property of the parties divided between them or a right to an interest in marital property that is fixed by reference to the various matters in s 79(4). The Court needs to conclude that it would be unjust or unfair to leave property rights intact under s 79(2) of the Act.
285. In many cases this requirement is readily satisfied where the parties are no longer in a marital or de facto relationship and, thus, for example, the common ownership or use of property by de facto Husband and Wife will no longer be possible or the express or implicit assumptions that underpinned existing property arrangements such as the accumulation of assets or financial resources by one for the benefit of both have been brought to an end with the relationship.
286. In particular, such a circumstance arises where both parties seek property adjustment orders but are unable to agree as to same. Here the de facto Wife seeks an order for adjustment of property and the de facto Husband contends that there should be no such adjustment.
287. It is thus important to ascertain the present property and resources of the parties so as to facilitate a consideration of the s 79(2) question.
288. In some circumstances it is not possible to determine whether it is just and equitable to make adjustment orders as to the parties’ present property rights without a consideration of s 79 (4) matters.
289. Section 79(4) requires a consideration of the contributions made by the parties as defined in s 79(4)(a) to (c). The Court must then consider s 79(4)(d) to (g) in particular the subjective considerations as to the parties by having regard to the provisions of s 75(2) in so far as they are relevant (s 79(4)(e)).
290. The Court can then consider the “justice and equity” of the actual orders to be made: Russell & Russell (1999) FLC 92–877; Teal & Teal [2010] FamCAFC 120, in the context of the Court’s obligation to make “appropriate orders” as provided for in s 79(1) of the Act.
The above legal principles can be equally applied to property adjustment proceedings under s 90SM of the Act between former de facto couples.
Balance sheets
The parties tendered in evidence the following agreed “before and after” balance sheets which became Exhibit C and Exhibit B respectively.
Before Cohabitation Balance Sheet Agreed Value Assets Ownership Description 1 Applicant Town H Property $35,000 2 Applicant Motor Vehicle 1 $2,800 3 Applicant Motor Vehicle 2 $8000 4 Applicant Caravan $1000 5 Applicant Horse Float $13,000 6 Applicant 3 horses / Animals $5000 7 Applicant Ride on Lawn Mower $200 8 Applicant 6x4 Box Trailer $400 9 Applicant Personal Possessions + Super Fund K + Tools $11,360 10 Respondent Remainder Cash from Estate of Ms L (after vehicle purchases) $236,000 11 Respondent M Street, Town N (40% share) $47,270 12 Respondent Motor Vehicle 3 $40,000 13 Respondent Motorbike $27,000 14 Respondent 2 trailers $2,200 15 Respondent Caravan $8,000 16 Respondent Bank O Account 300 Wife Assets $76,760 Husband Assets $360,770 Liabilities 17 Applicant Centrelink Debt $67,000 18 Applicant Income Tax Liability $4,000 19 Applicant Electrical Bill Debt $7,382 Applicant Liabilities $78,382 Respondent Liabilities $0 Overall Position Applicant $1,622) Overall Position Respondent $360,770
At/After Separation Balance Sheet Assets Agreed Value Item Ownership Description 2 Applicant Bike $2,500 3 Applicant Westpac basic account …99 $0 4 Applicant NAB Classic Banking account …45 $319 5 Applicant Animals $1,250 6 Applicant Livestock – 4 horses $10,000 7 Applicant Horse rugs and equipment $3,000 8 Applicant Garden tools and agricultural fencing $10,000 9 Applicant Trailers x2 $2,800 10 Applicant Sheds x2 $6,000 11 Respondent B Street, Town C $80,000 12 Respondent Motor Vehicle 3 $25,000 13 Respondent Motorbike $14,000 14 Respondent Mobile Home $55,000 15 Respondent Bank Accounts – Bank O $376 16 Respondent Westpac bank account $2,326 17 Respondent Tractor $10,000 18 Respondent Caravan $10,000 19 Respondent Trailer $10,000 Applicant Assets $35,869 Respondent Assets $206,702 Liabilities 19 Applicant Centrelink Debt $60,000 20 Applicant Income Tax Liability $4,000 21 Applicant Electrical Bill Debt $7,382 Applicant Liabilities $71,382 Respondent Liabilities $0 Overall Position Applicant $35,513 Overall Position Respondent $206,702
From the above At/After Separation Balance Sheet, the Court finds:
(a)That the above liabilities of the Applicant did not arise out of the parties’ de facto relationship (indeed they were liabilities of the Applicant pre-existing the commencement of the parties’ relationship) and should be removed from the At/After Separation Balance Sheet;
(b)The following assets should be removed from the At/After Separation Balance Sheet because they were probably acquired by the Applicant or the Respondent after the parties’ separation and do not relate to the parties’ former relationship (and with the Court observing that there is no significant evidence by the Applicant or the Respondent that such assets were acquired by them during the parties’ relationship):
(i)Bike, $2,500;
(ii)NAB Classic Banking account, $319;
(iii)Livestock – four horses (and noting that the Applicant alleges that two horses were sold in 2018);
(iv)Horse rugs and equipment, $3,000;
(v)Garden tools and agricultural fencing, $10,000 (and noting that the Applicant alleges that her tools, $6,000, were retained by the Respondent, which the Court does not accept);
(vi)Trailers (2), $2,800;
(vii)Sheds (2), $6,000;
(viii)Bank O bank account, $376;
(ix)Westpac bank account, $2,326;
(x)Tractor, $10,000;
(xi)Trailer, $10,000.
The final revised balance sheet is therefore as follows:
At/After Separation Balance Sheet Asset Ownership Description Agreed Value 1 Applicant Animals $1,250 2 Respondent B Street, Town C $80,000 3 Respondent Motor Vehicle 3 $25,000 4 Respondent Motorbike $14,000 5 Respondent Mobile Home $55,000 6 Respondent Caravan $10,000 Total $185,250
Accordingly the parties’ relevant assets are $185,250.
Section 90SM(3) of the Act
The Court is satisfied that it is just and equitable in this case to alter the property interests of the parties in light of the breakdown of their relationship, the fact that they will no longer have the joint use and enjoyment of their property, and the fact that the continuance of the current legal ownership of their property would not afford them justice and equity.
Contributions
The Court makes the following findings on the balance of probabilities. The Court should state that it has considered all the parties’ allegations as to contributions made by them during the parties’ relationship. If the Court has not made a finding below in relation to such alleged contribution, then it is due to the Court not being persuaded on the balance of probabilities that such contribution was made by a party.
The Respondent probably lent $15,000 to the Applicant to have a transportable house (previously purchased by the Applicant) transported to the Town H property in late October 2017. The Court refers to two withdrawals from the Respondent’s bank account on 30 October 2017 totalling $16,000, and it refers to the receipt from Mr P, in the sum of $15,000, and dated 4 October 2019. The Court does not accept that the Applicant had cash funds herself of $8,000 in late October 2017 to permit her to pay Mr P herself.
The Applicant assisted the Respondent to clean up the B Street, Town C property (purchased by the Respondent in January 2018) and was aided by her friend Ms J; several loads of rubbish were taken to the tip.
The proceeds of sale of the Applicant’s property at Town H, which was sold in December 2018, with the net settlement amount payable by the purchasers being $51,575, was paid to the Respondent. The Court finds that the Respondent only repaid the sum of $10,000 to the Applicant in relation to the above sum of $51,575. The Court finds that the Respondent during the parties’ relationship did pay the Applicant various sums, in particular from his bank account, however these payments were probably made to enable the Applicant to buy consumables for and on behalf of the parties and for the Respondent’s alcohol and tobacco. The Court finds that the Respondent’s receipt of the above monies probably contributed towards the parties maintaining their lifestyle, maintaining their animals, and maintaining the parties’ assets.
The Respondent, in about November 2017, purchased a Motor Vehicle 3 for the Applicant to drive. The purchase price was $17,300. It was registered in the name of the Applicant. It was sold by the Applicant on 13 August 2018 for $16,500, and on 13 and 14 August 2018 the Applicant paid to the Respondent the sum of $14,000.
Both parties assisted with the care of the animals on the property probably about equally.
Both parties, during their relationship, contributed monies towards their grocery and other living expenses. Both parties probably contributed to the carrying out of household chores. The Court finds their contributions during their relationship to the welfare of the family constituted by the parties, including their homemaker contributions, were probably about equal.
The Court is not persuaded that:
(a)The Respondent received the sale proceeds of the Applicant’s Motor Vehicle 1, Motor Vehicle 2, lawn mower, 6x4 Trailer, as alleged by the Applicant;
(b)The Applicant did not receive monies (from the Respondent) for the sale of the Applicant’s caravan to Mr Q;
(c)The Respondent received the sale proceeds of the Applicant’s two horses sold for $500 each;
(d)The Applicant provided significant care for the Respondent during their relationship, despite her being receiving a carer’s pension for him;
(e)The Applicant took $6,000 cash that the Respondent had received from Mr R, at separation;
(f)The Applicant took the Respondent’s horse float and sold it for $10,000;
(g)The Respondent retained or converted to his use the Applicant’s tools ($6,000), shipping containers, or personal household effects.
Taking into account the above matters, and viewing the parties’ overall contributions holistically, the Court assesses the parties’ relevant contributions to be 15% to the Applicant and 85% to the Respondent. That results in a disparity of about $129,675 in favour of the Respondent.
Section 90SF(3)
There is no call for an adjustment under s 90SF(3).
The Applicant is aged 54 years. The Respondent is aged 59 years. There were no children of their relationship. This was a short relationship lasting almost two years.
The Applicant and the Respondent both had significant health issues prior to the parties’ relationship which have continued. The Applicant and the Respondent probably now both have at least modest casual work capacities.
The Applicant receives income by way of casual wages in the sum of $350 per week however her Centrelink benefits of about $550 per week reduces to some extent due to this casual income. The Respondent receives about $484 by way of a disability support pension, however, again, it is likely that he has at least a modest casual work capacity.
The Applicant’s proposed Order for the return of certain animals
The Applicant seeks an order that the cats named “D and E”, and two dogs named “F and G” be returned to her possession. These proposed orders are resisted by the Respondent.
The Court finds that the Applicant owned these cats prior to meeting the Respondent, having rescued them prior to the parties’ meeting each other. The Respondent concedes that she owned them when the parties met. There is a sterilisation certificate for the cat D dated 2015 with the owner named the Applicant. D was born in 2014 and is now aged almost eight years. There are veterinary surgeon’s invoices for this cat dated 7 and 10 January 2019 addressed to the Applicant.
The dog G was born in 2012 and is now aged ten years. The court finds that the dog G has been registered in the name of the Applicant and was so registered as at 23 September 2019 being a date after the parties’ separation; the Court does not accept the Respondent’s evidence that the Applicant had gifted this dog to her friend prior to the commencement of their relationship.
The Court finds that the dog F was born from the Applicant’s dog S during the parties’ relationship, specifically in 2018. That dog is now aged almost four years. The Respondent admits that S was owned by the Applicant when they met. There is an invoice dated 1 November 2018 from a veterinary surgeon addressed to the Applicant in relation to the pups of S. There are veterinary surgeon’s invoices addressed to the Applicant dated in January 2019 relating to F. There is a registration certificate reprinted as at 25 September 2019, being a date after the end of the parties’ relationship, referring to F being owned by the Applicant. The Court does not accept that F was gifted by the Applicant to the Respondent during the parties’ relationship.
The Court has found that both parties contributed about equally to the care of the animals during their relationship, a relationship of almost two years.
The above cats and dogs were the subject of interim consent Orders of 21 October 2019; the parties agreed for the Respondent to care for the above cats and dogs pending further Order. Accordingly, the Respondent has probably cared for the animals post 21 October 2019 to date, a period of almost three years.
The dogs and cats, above, are probably “property” and liable to be the subject of property adjustment Orders under s 90SM of the Act. The Applicant’s legal ownership of the dogs and cats is not determinative of the parties’ dispute in relation to these animals, and the Court is required to consider the parties’ respective contributions towards their acquisition, conservation and improvement.
There is no evidence before the Court as to the purchase price of the dogs, noting the cats were rescued by the Applicant.
Clearly, the dogs and cats were effectively brought into the relationship of the parties by the Applicant, however, and importantly, the parties cared for these animals equally during their almost two year relationship and for the last almost three years the Respondent has solely cared for them being significant contributions by him towards those animals.
In the above circumstances, whilst the Court acknowledges and infers that the Applicant probably holds significant affection for the animals, they should remain with the Respondent.
Justice and equity
It should be kept in mind that this was a short relationship; a relationship just short of two years.
The cats and dogs, the subject of the Applicant’s proposed Order 2, set out in her Amended Initiating Application filed 25 October 2021, should remain with the Respondent.
The Respondent should be ordered to pay to the Applicant the sum of $27,787. He has assets to satisfy such Order. He should be given three months to satisfy such Order. On payment of this sum to the Applicant, her caveat over the Respondent’s real estate property should be ordered to be removed by her. Because the Court is making this monetary Order in favour of the Applicant, the Respondent should bear the costs of removing the caveat.
The Applicant will probably have to rent accommodation in which to live. She has modest assets which she will retain. Again she is in receipt of government benefits and she has a modest casual work capacity. She will retain debts that pre-existed the parties’ relationship. The Applicant gave evidence that she continues to pay off her Centrelink debt pursuant to a payment plan.
The Respondent will retain his real estate, mobile home, and other modest assets, however he will probably be required to realise some of his assets to meet the payment to the Applicant of $27,787. It should be kept in mind, in particular, that the Husband’s real estate and mobile home were purchased from his pre-relationship cash assets.
The Court is of the view that its proposed property adjustment Orders will represent a just and equitable property settlement between the parties.
The Court makes Orders accordingly.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 30 August 2022
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