Frazer, Andrew John v Greene, Kim
[2009] VCC 998
•23 July 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
COMMERCIAL LIST
FAMILY PROPERTY DIVISION
Case No. CI-08-03306
| ANDREW JOHN FRAZER | Plaintiff |
| v | |
| KIM GREENE | Defendant |
---
| JUDGE: | HIS HONOUR JUDGE O'NEILL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 16, 17, 18 June, 20, 21 and 22 July 2009 |
| DATE OF JUDGMENT: | 23 July 2009 |
| CASE MAY BE CITED AS: | Frazer, Andrew John v Greene, Kim |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0998 |
REASONS FOR JUDGMENT
---
Catchwords: DE FACTO PROPERTY DISPUTE – Part IX of Property Law Act 1958 – adjustment of interests in property – financial and non-financial contributions.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms J F Healey | Randles Cooper & Co Pty Ltd |
| For the Defendant | Ms B A Tulloch | Carew Counsel Pty Ltd |
| HIS HONOUR: |
Preliminary
1 By his Statement of Claim, the plaintiff seeks an adjustment of property interest pursuant to Part IX of the Property Law Act 1958 (“the Act”). The plaintiff and the defendant entered a domestic relationship in approximately September 2006 and lived for a short period at a property owned by the defendant at Kings Park, Southgate (“Southgate”) and then subsequently at Unit 2, 16 Cootamundra Court, Werribee (“Unit 2”). At the time, the defendant also was also the proprietor of a property at Unit 1, 16 Cootamundra Court, Werribee (“Unit 1”). The parties have a child, Haylee Anne, born 22 November 2006.
2 The parties had met in 2002 or 2003 and commenced a relationship in 2005. As stated, they commenced living together in a domestic relationship in approximately late September 2006, and remained together until a first period of separation in June 2007. The relationship resumed again in September 2007 and finally ended on Christmas Eve 2007.
3 While the period during which the parties lived in a domestic relationship was less than two years,[1] I am satisfied Haylee is a child of the parties and therefore Part IX of the Act has application.[2] The defendant was born on 25 November 1965 and is currently forty-three years of age. The plaintiff was born on 28 December 1967 and is currently forty-one years of age.
[1] see s.281(1) of the Act
[2] see s.281(2) of the Act
4 In opening, counsel for the defendant, Ms Tulloch, submitted that given her client owned the three properties prior to the commencement of the relationship, the financial and non-financial contributions of the parties generally and given her client has had and continues to have the day to day care of Haylee, I ought to not make any adjustment in respect of property interests. Ms Healey, for the plaintiff, submitted the contributions by the plaintiff in a range of areas, particularly as to landscaping work carried out to Units 1 and 2, represent a significant financial and non-financial contribution, and ought lead to a substantial adjustment in his favour.
5 In addition to the plaintiff and the defendant, evidence was given by Raymond Francis Hamilton and Samuel Tuckerman, both of whom assisted the plaintiff in the landscaping works, by the defendant’s father, Francis Green, who gave evidence as to his observances at Units 1 and 2 when he was upon the property, and in addition, Mr Andrew Proctor, registered Valuer, who gave evidence as to the valuation of Units 1 and 2. Various photographs of Units 1 and 2 showing landscaping work carried out by the plaintiff, various documents relating to that landscaping work, financial documents relating to contributions by the parties, documentation from the Child Support Agency, building contracts, and various other relevant financial documents were tendered into evidence. I have read all these documents.
Assets of the Parties at the Commencement of the Relationship
6 I am satisfied at the outset, the defendant was the registered proprietor of Southbank, and Units 1 and 2. Mr Proctor gave evidence that he assessed the valuation of Units 1 and 2 at various points in time. I was informed that there has been no effective subdivision of the units and they remain on a single title. Mr Proctor’s valuations were as follows:
Date of Valuation Property Valuation 17 April 2008 Units 1 and 2 together $500,000 17 April 2008 Unit 1 $260,000 17 April 2008 Unit 2 $280,000 17 November 2008 Units 1 and 2 together $475,000 17 November 2008 Unit 1 $250,000 17 November 2008 Unit 2 $265,000 17 July 2009 Units 1 and 2 together $500,000 17 July 2009 Unit 1 $260,000 Date of Valuation Property Valuation 17 July 2009 Unit 2 $280,000[3] [3] see Exhibit 9
7 In addition, the defendant entered the domestic relationship with a range of household furniture, personal effects and a motor vehicle of modest value.
8 At the commencement of the relationship, the defendant was employed as an executive assistant to a partner in an employment consulting firm. I am satisfied she was earning $60,000 gross per year, together with a bonus in the order of $10,000. The plaintiff was on maternity leave from October 2006 until June 2007, when she resumed employment. I am satisfied that of this eight months’ leave, she was paid for approximately six months. The plaintiff was made redundant in May 2009 and is currently in receipt of Centrelink and family allowance payments, which at the present time are $575.00 per fortnight, and $189.00 per fortnight, respectively.
9 Aside from household effects, personal items, and a motor vehicle of modest value, the plaintiff had little in the way of assets at the outset of the relationship. He held no real estate. He had been the owner of a boat, which he had earlier sold, which he claims realised approximately $15,000. He claims that a significant proportion of this sum was spent by him on relocation expenses, general household expenses and particularly towards the cost of landscape works which he carried out at Units 1 and 2.
10 According to taxation notices of assessment,[4] the plaintiff earned the following amounts:
[4] Exhibit F
Year ended 30 June 2006 - $49,824.00 Year ended 30 June 2007 - $51,188.00 Year ended 30 June 2008 - $53,556.00
11 Throughout this period, the plaintiff was a garbage collector for the Nillumbik Shire. Of more recent times, the plaintiff has been employed as a landscape gardener, having been unemployed for a period in 2008 and 2009.
Contribution of Parties during the Course of the Relationship
12 Of all of the various household expenses, including food, utility charges, entertainment and the like, the defendant claimed in evidence that she paid 85 per cent of such expenses, and the plaintiff’s contribution was only 15 per cent. For the period October 2006 to December 2007, the defendant made calculations of various household expenses, extracted from bank and credit card records, and claims for this period to have spent $77,692.00.[5] In explanation as to how she could have met such commitments given her salary over the period, the defendant stated that she incurred significant credit card debt.
[5] Exhibit 6
13 Both parties concede that mortgage payments made in respect of the mortgage over the various properties, taking into account rental received, was made by the defendant.
14 The plaintiff claims that his share of household expenses was in the approximate proportion of 40 per cent to the plaintiff’s 60 per cent. He stated in evidence that he had made various contributions to the upkeep of Haylee, including the purchase of cots and chairs. He claimed in addition he made various payments in respect of gas, electricity and telephone, and general purchases of household items and food. He stated that he regularly paid for petrol in both parties’ vehicles, and paid for new tyres for the defendant’s vehicle at a cost of approximately $500.
15 The plaintiff tendered into evidence receipts in respect of various expenses he incurred for furniture, and items for Haylee.[6]
[6] Exhibit C
16 In addition, the plaintiff purchased various household items, including cameras and electrical goods.[7]
[7] Exhibit D
17 There was disagreement between the parties as to the extent to which the plaintiff contributed to childcare expenses of Haylee through the course of the relationship. The defendant gave evidence that as from June 2007, Haylee was looked after by Ms Maureen Morrish about four days a week, with the defendant’s parents looking after her for the other day. The fees paid to Ms Morrish varied between $105 and $140 per week. The defendant claimed that all of these payments were made by her to Ms Morrish in cash and that the plaintiff made no payments.
18 The plaintiff gave evidence that he did make payment to Ms Morrish on occasions for childcare.
19 I permitted an evidence statement of Ms Morrish to be tendered, given that she is currently ill, and I was provided with a medical certificate to the effect that it would be difficult for her to give evidence. While the evidence of Ms Morrish was not the subject of challenge by cross-examination, it would appear to confirm the version of events given by the defendant that she paid the childcare expenses. While I do not find it necessary to come to an absolute view on the matter, I am satisfied that the great majority of the childcare expenses were paid by the defendant during the course of the relationship.
20 It is a difficult, if not impossible task to determine precisely what proportion of the household expenses were paid by the plaintiff, and what by the defendant. To do so would involve an exercise which would take a very considerable time, and not be justified in a case such as this. Any assessment in this regard must be general only. I am satisfied each of the parties spent effectively all of their respective salaries on joint household expenses. There is no evidence either had hobbies, interests or pastimes into which monies were expended. In the circumstances, I am satisfied that the defendant paid the bulk of the household expenses and determine that the expenses were paid as to two-thirds by the defendant, and one-third by the plaintiff.
21 In terms of the non-financial contribution, there was little difference in the evidence between the parties. I accept that the defendant was primarily responsible for the care of Haylee, and that the plaintiff made contributions from time to time. I accept that the defendant did the bulk of the cooking, although the plaintiff assisted, and that the defendant undertook most of the household chores. I accept that the plaintiff spent a considerable period of his leisure hours in maintenance, and particularly contribution to the landscaping undertaken at Units 1 and 2. I will refer to the dispute between the parties as to the landscaping shortly.
22 I assess the non-financial contributions of the parties in the course of their relationship, setting aside the landscaping work, as being approximately equal. In fact, the defendant gave evidence to this effect, which was not challenged.
Landscaping Work Carried out by the Plaintiff
23 A considerable proportion of the evidence heard in the course of the trial concerned a dispute between the parties as to landscaping work carried out by the plaintiff at Units 1 and 2 leading up to and during the course of the relationship and the manner in which that work ought to reflect in an adjustment of property interests.
24 The plaintiff currently works as a landscaper, and had the skills and capacity in 2006 and 2007 to perform extensive landscaping works at Units 1 and 2. He claims that from approximately May 2006, he commenced landscaping work at the units. At that time, while the units had been constructed, there had been little landscaping carried out to the front and none to the back of the units. There was a considerable amount of builder’s rubble and other debris which had to be collected. The work carried out by the plaintiff, and various friends who assisted him in this task, is depicted in photographs numbered 1 to 28 in Exhibit A. In addition, the defendant tendered photographs taken from August to September 2008.[8]
[8] Exhibit 2 – pages 1-11 of Defendant’s Court Book
25 From the evidence of the plaintiff, I am satisfied that extensive landscaping works were carried out over the period from May 2006 until the final separation in December 2007. This work included:
ƒ clearing of builder’s debris and rubble from the rear of the units; ƒ levelling of garden areas by the use of a bobcat; ƒ arranging for the collection of rubbish in bins and its removal; ƒ the laying of crushed rock and granitic sand to the rear garden areas and
the levelling of the same by use of a bobcat and raking;ƒ general design of the garden areas; ƒ construction of gates to both units;[9] ƒ installation of an irrigation system to the garden; ƒ construction of garden beds in various places around Units 1 and 2; ƒ purchase and planting of various trees and shrubs; ƒ installation of large boulders to enhance the garden; ƒ the laying of reinforced concrete over the area at the rear of the units;[10] ƒ laying of tiles over concreted area;[11] ƒ laying of instant turf to garden areas;12 [9] see Photographs 1 and 2 – Exhibit A
[10] see Photographs 12 and 13 to Exhibit A
[11] Photographs 8 and 9 to Exhibit A
26 The plaintiff gave evidence that he undertook this work with the assistance of various friends and associates, including Raymond Hamilton, Samuel Tuckerman, a bobcat driver, and other persons. He paid various amounts of money to these persons to assist with the work.
27 Ms Tulloch, for the defendant, helpfully conceded that the plaintiff had expended the sum of $8,237.61 on various expenses relating to this landscaping work. A further amount of $7,015.79 was, however, disputed. The items comprising this sum are set forth in Exhibit 1 which lists the amounts the plaintiff claims he paid for the work.
28 The defendant disputes these various items on the grounds that some of the expenses were incurred before the relationship commenced, some items related to work at an adjoining property, some invoices were concocted for the purposes of the court case and were not legitimate, and generally the work carried out by Messrs Hamilton, Tuckerman and other tradesmen was done on a friendly basis and in respect of which no money was charged nor received. Having heard the evidence of the plaintiff, and Messrs Hamilton and Tuckerman, I am satisfied that the expenses set out in Exhibit 1 were incurred and paid by the plaintiff. Mr Tuckerman gave evidence that he was paid in cash for paving tiles in the sum of $1,980.00, and a further sum of $1,300.00 towards the design and setup of the work. I accept his evidence in this regard. Subsequently, the plaintiff obtained invoices from Mr Tuckerman for these sums and so the invoices are dated a long time after the work was carried out13 but this does not mean, in my view, that the work was not undertaken in the manner claimed by the plaintiff.
29 The defendant submitted that I could not be satisfied that various amounts claimed by the plaintiff in respect of the cost of trees and shrubs, including $400 to “All Green Nursery”, and $165 to “Conifer Garden Nursery” ought not
Photograph 7 to Exhibit A
Exhibit B
be accepted. The defendant claimed the plaintiff had purchased plants and undertaken landscaping work to an adjoining property as shown on the photograph at Defendant’s Court Book page 17. It was not possible, however, to say that the expenses incurred at these nurseries related to plants used in the adjoining premises. However, again having heard the evidence of the plaintiff and Mr Tuckerman, I am satisfied these expenses were incurred. Likewise, I am satisfied that the plaintiff incurred expenses towards rubbish removal and bin hire of $1,900. In submission, Ms Healey sought to include into the claim further amounts which she said had been proved by the evidence. I accept that in addition to the amounts of landscaping expenses conceded, and the further amounts I have found proven as set forth in Exhibit 1, that the plaintiff paid for plants and trees placed into the garden at Units 1 and 2. Mr Tuckerman gave evidence that he and the plaintiff attended a number of nurseries and purchased a mature tree at approximately $700, and ten other shrubs at a cost of $200 to $300. I am prepared to allow a further sum of $3,200 in this regard.
30 In addition, Ms Healey submits the evidence establishes the plaintiff paid cash to the various persons who assisted in the work. The evidence as to precisely what was paid, and to whom, is unsatisfactory. I accept Mr Hamilton worked at the property over four to six days and was paid $150 a day. The plaintiff further gave evidence that he paid “Travis” $150 per day for work over approximately one week and “several other days”. I am prepared to allow $1,000 in respect of payments to Travis. These amounts total approximately $1,800. I am not satisfied, on the evidence, that further payments were made to other persons.
31 The defendant’s father, Francis Greene, gave evidence. He was present on an occasion in 2007 when himself, the plaintiff and two others assisted with the pouring of concrete to the garden area at the rear of the units. He said this work commenced at approximately 10.00 am and was completed by 2.00 pm. The work involved loading barrows with cement and delivering the same to the rear area, screening and then levelling the cement. He gave further evidence that after the parties moved into Unit 2, he attended once or twice a week and while on occasions the plaintiff was seen working in the garden area, there were other occasions when the plaintiff was not present and away doing other things.
32 The defendant was critical of the plaintiff that the landscaping work was not completed. She stated this is evident from the photographs at pages 1, 2, 5 and 10 of the Defendant’s Court Book. She said in evidence that those photographs depicted the areas at the rear of the units after the conclusion of the relationship. While there may have been some works not completed by the plaintiff, I am satisfied that he did carry out extensive landscaping work as stated.
33 The plaintiff gave evidence that a very significant proportion of his spare time, both on rostered days off and over the weekends, was spent in this landscaping work. He was unable to be specific as to the exact number of hours but said that he would often work eight to ten hours each day throughout the relationship. He said that over the period from March to May 2006 he considered he had worked approximately fifteen days. Further, over the period from May to November 2006 he considered he had worked between fifteen and twenty days. Altogether he thought he had worked thirty to forty days. The evidence is unclear as to whether this assessment included work which he claims to have carried out at the property after November 2006. I am prepared to allow the plaintiff did work beyond these forty or so days during 2007 although I do not accept it was as extensive as to include both days of every weekend. The parties separated between June and September 2007 and I do not accept the plaintiff worked anything more than minimally over that period. I am prepared to accept that the plaintiff worked a significant number of weekends over the year 2007 and on some occasions on his rostered day off.
34 Mr Hamilton gave evidence that he assisted the plaintiff, particularly at the cleanup work at the outset, and in the laying of the concrete and the tiles. He assisted in the building of the gates in addition. He said that he would have worked over about four to six days in total. I accept his evidence in this regard. Likewise, Mr Tuckerman gave evidence about the payments made to him for the tiles and the design. In addition, he stated that he worked with the plaintiff over a number of days at Units 1 and 2.
35 The defendant gave evidence that while the plaintiff did work at the properties undertaking the landscaping work, it was not as extensive as he claimed. She said the plaintiff undertook other activities, including assisting Mr Tuckerman with work at his property in Coburg, fishing and other landscaping work. She said that the process to complete the landscaping was slow.
36 Having viewed the photographs and heard the evidence as to the work undertaken, I am satisfied that it would have involved considerable time and effort on the part of the plaintiff. The works were extensive and although he had the assistance of various persons, I am satisfied that the bulk of the work was undertaken by him. I am satisfied that the majority of the plaintiff’s weekends and rostered days off was spent over the period of the relationship, and for a number of months before, in this landscaping work, and his contribution to the value of Units 1 and 2 by this work was significant.
37 The defendant gave evidence that, at least in part compensation to the plaintiff for the landscaping work carried out, she organised and paid for a holiday for the parties to Queensland at a cost of approximately $1000. While I accept that the defendant did this, I am not satisfied that it was a complete setoff for the work carried out by the plaintiff, although I take it into account in assessing the appropriate adjustment of property interests.
38 Mr Proctor estimated that the landscaping work which he understood was carried out to Units 1 and 2 may add approximately $10,000 to $15,000 to their value. In the course of his report, he said that there was evidence of other properties in the area which had been not landscaped. However, in cross-examination, when asked if the property was valued today what value he would assess it without any landscaping work, he stated that he would have to go away and consider the matter, and obtain comparable sales. When I put to him that this appeared to be an anomaly in his evidence, he agreed that it was very difficult to make an assessment of the value of the property on the one hand with landscaping, and on the other hand without landscaping. I conclude that I am not satisfied that Mr Proctor is able to give a value to the units without the landscaping and thus the effect upon the value of the landscaping work carried out. I accept that the works would have increased the value of the units, I am not able to say, from the evidence, by how much.
Assets at the Conclusion of the Relationship and the Conduct of the Parties
Since39 The plaintiff gave evidence, which I accept, that at the conclusion of the relationship in December 2007 he left without assets, save for some personal items.
40 The defendant gave evidence, which I accept, that in December 2008 she sold Southbank for the sum of $480,500. From the proceeds, she repaid a mortgage of $300,000 associated with that property, and reduced the mortgage on Units 1 and 2 by $50,000. A further amount of approximately $20,000 was paid in reduction of credit card debt which had, at least in significant part, been accumulated during the course of the relationship. At the present time, the mortgage over Units 1 and 2 is approximately $174,000. The repayment in respect of that mortgage loan is $1,950 per month, less $910.00 per month received in rental in respect of Unit 1. While the defendant is not presently working, she has stated it is her intention to obtain employment in the near future and has in fact been for job interviews.
41 Ms Tulloch submitted that I ought to have regard to the fact that the plaintiff had made inadequate and irregular payments of maintenance towards Haylee since separation. After separation, the defendant gave evidence that the plaintiff paid maintenance from time to time but the payments were irregular, and she sought the assistance of the Child Support Agency. As a result, the plaintiff maintained maintenance payments until November 2008. Thereafter, the defendant received no maintenance payments until 20 July 2009, when, in the course of the trial, the plaintiff attended to the outstanding balance of maintenance due.
42 The plaintiff gave evidence that he made various payments of maintenance to the defendant over the period March 2007 to June 2008.[14] Further, on 20 July 2009, he made payment of the amount outstanding of $3,100.[15]
[14] see receipts in Exhibit E
[15] see Exhibit H
43 Ms Tulloch submits that in the period from December 2007 to the present time, I ought to accept the plaintiff’s evidence that an estimate of the costs for a child of Haylee’s age is approximately $233 per week. Thus the total expenses to date are approximately $18,800. Of this sum, the plaintiff has contributed only $5,600.
44 In addition, Ms Tulloch submits that the plaintiff has paid for childminding expense of Haylee from December 2007 to the present time of an additional ten or so thousand dollars. However, I am of the view not all of this sum can be fairly assessed as I accept the plaintiff would have assisted in childminding, particularly when he was unemployed earlier this year, that there has not been the same need for childminding expenses since the defendant has been unemployed, and further, that she is entitled to some Commonwealth government rebate claimed for the financial year ended June 2009, and ongoing. Without being absolutely precise as to the arithmetic, it is clear that the defendant has borne the bulk of the childcare expenses from the date of separation to the present time.
45 Ms Healey submits that the plaintiff played a significant role in caring for Haylee from the time of separation to the present. The evidence does not support that proposition. I accept the plaintiff spent time with Haylee from time to time during 2008, and after May 2008 for each Sunday. In addition he would, on several days of the week, collect Haylee from childcare and spend time with her between 3.00 and 6.30 pm. More recently, he has had access to Haylee on Sundays only. His access, however, has been curtailed because of the dispute between the parties and I accept that had he been able to do so, he would have played a greater role in her care.
46 Ms Healey submits I ought have reservations about the credibility of the defendant given she made claims in her taxation returns for landscaping and like costs for the years ended June 2007 and June 2008 which were improper. The defendant admitted some of those expenses may have been inappropriately claimed but said that her taxation affairs were in the hands of her accountant. I accept her explanation in this regard. I do not view this as a significant credit issue.
47 Ms Healey further submits that I ought to take into account that the plaintiff lost the opportunity to do other remunerative work over the weekends and days off he spent landscaping at Units 1 and 2. I do not accept this submission. The same could be said of the defendant. Had she not had the care of a child, she could have undertaken other work which would have improved her financial status. The work carried out by the plaintiff was done voluntarily and in the belief that there was the prospect of an ongoing relationship with the defendant and their child. Unfortunately, the relationship was not sustained and I do not see any basis for an adjustment of property interests based upon this submission.
The Act and Applicable Legal Principles
48 Part IX of the Act sets out the legislative formula for the division or alteration of interests of parties in property arising out of their domestic relationship. It is a matter to consider the adjustment of interests of the parties which is just and equitable in all the circumstances as are prescribed by s.285. That section requires me to have regard to the financial and non-financial contributions made directly or indirectly by or on behalf of either party. It includes regard to the contributions by a party as homemaker or parent. In this case, the defendant carried out the bulk of the parenting duties in relation to the child, Haylee, although I am satisfied that the plaintiff did contribute.
49 In Conn v Martusevicius,[16] Vincent J made the following observations when comparing Part IX of the Act with the provisions of the Family Law Act 1975:
“Whilst it is, in my opinion, important to remain mindful of these differences, nevertheless the court is vested with a wide discretion and must attempt to arrive at a result which is just and equitable in the circumstances. Accordingly, it must have regard to the whole of the relevant context within which an application is made.
Any assessment of the significance and value of the assistance and support provided by de facto partners which did not place them within a framework provided by all of the circumstances of the relationship, would introduce a measure of unreality into the process and a degree of tension would arise between the adoption of a restrictive approach to the factors to be taken into account, and the duty of the court to attempt to achieve equity between the partners.
Whilst s.285 imposes an obligation upon the court to have regard to a number of particular kinds of contributions which may have been made, the legislature has not attempted to confine narrowly the concept of ‘contribution’ and there is, in my opinion, no good reason for the courts to do so. The fundamental limitations to the scope of the section in this context, are contained in the expression ‘de facto partner’ which makes it clear that any such contribution to be relevant must have been made by a person who fell within that description at the time of its making and possesses a sufficient nexus with the relationship.
…”
[16] (1991) 14 Fam LR 751
50 Vincent J endorsed the approach followed in New South Wales, enunciated by Powell J in D v McA,[17] that in applying Part IX, the following steps should be taken:
[17] (1986) 11 Fam LR 214 at 228
• firstly, I should identify and value the assets of the parties; •
secondly, I should determine whether any, if so what, relevant contributions have been made by the plaintiff and the defendant;
•
thirdly, I should determine whether, in the circumstances, the contributions of the plaintiff and the defendant have already been sufficiently recognised and compensated for;
•
fourthly, I should determine what order is called for so that the plaintiff and or the defendant’s contributions can be sufficiently recognised and compensated for.
51 This four-step approach has been adopted in various cases.[18]
[18] See Robertson v Austin [2003] VSC 80; Findlay v Besley [2003] VSC 247; and Rowe v Dassios [2007] VSC 218
52 In Giller v Procopets,[19] the Court further gave consideration to the determination by the learned trial judge to prefer the approach to the division of property on an “asset by asset” basis rather than upon a “global” basis”.[20] The Court, while admitting that in some circumstances, an assessment of financial contributions by reference to particular assets may be appropriate, that was not the general standard to be applied. Rather, that whether a global approach was taken, or an asset by asset approach, would depend upon the particular case. The Court referred to Norbis v Norbis,[21] where Mason and Deane JJ said:
“… Which of the two approaches is the more convenient will depend on the circumstances of the particular case. However, there is much to be said for the view that in most cases the global approach is the more convenient. … In this respect we agree with the comment of Nygh J in G v G that, although mathematical precision is certainly not required, there is ordinarily a need to know the circumstances in which assets were acquired and the general extent of each party's contribution to them.
…”
[19] [2008] VSCA 236
[20] see paragraph 279 and following
[21] [1986] HSC 17
53 I conclude from Giller that the preferred method of assessing an appropriate distribution is the global approach as referred to. The global approach is achieved by making an assessment of the assets of the parties at the outset, the financial and non-financial contributions of the parties during the course of the relationship, the assets which the parties had at the conclusion, and the contributions, particularly by the defendant, in her role as homemaker and mother for the child, Haylee, since the end of the relationship, and continuing into the future. Having taken those matters into account, it is then to consider what lump sum amount, or alteration in property interests, assessed globally, is just and equitable.
54 Pursuant to s.291 of the Act, I am empowered to make a range of orders, including, inter alia:
“(d) Order payment of a lump sum, whether in one amount or by
instalments.”
55 In Giller, the Court found[22] that contributions by the parties, both before and after the de facto relationship, may be taken into account in the exercise of the adjustment of interests. Particularly, the post separation contribution of one parent in that person’s capacity as homemaker or parent is relevant. In this regard, the defendant gave evidence in relation to the weekly costs and expenses of Haylee as being in the order of $275.00 per week. To that end, a table of costs was tendered[23] indicating a breakdown of expenses in relation to food, transport, recreation and other relevant items towards the maintenance of a child of Haylee’s age. I accept that survey as being a guide towards such costs. As earlier stated, Ms Tulloch submitted a figure of $233 per week, not including child care, was an appropriate allowance in this case.
[22] per Neave JA, at paragraph 258 and following
[23] see Exhibit 5 – the “Lee” table
56 Further, in Kenyon v Akeroyd,[24] the Court of Appeal confirmed the contribution of a parent as homemaker and carer of a child is a significant factor to be taken into account in determining an adjustment of property interests. In that case, the learned trial judge had attempted to apportion an hourly rate to the hours spent by one party in her role as mother to the children of the relationship and homemaker. The Court of Appeal found error in that approach and further suggested that a global approach to the assessment of the contribution was to be preferred.
[24] [2008] VSCA 277
57 Thus I should bear in mind in assessing an appropriate distribution the fact that the defendant has had the care and expense of Haylee and that her contributions, both financial and as homemaker and parent, ought to be taken into account in the exercise required by s.285. I also note that the plaintiff has made maintenance payments, albeit irregularly, since separation. I note that the expenses for the care of the child since separation have been borne largely by the defendant, although the plaintiff has made contribution through maintenance payments. In addition the plaintiff has had a more significant role in the care and parenting of Haylee, although I accept that the plaintiff wishes to increase his role beyond that which is presently permitted. As to the future, the plaintiff is paying $480 per month to the Child Support Agency in respect of payment of maintenance. Allowing say $275 per week as a reasonable indication of the costs and expenses relating to the child, including childcare, the plaintiff’s contribution represents approximately forty per cent of such expenses. While it may be said that the plaintiff, given his past history, may not maintain these payments, nonetheless the defendant has the right to take enforcement proceedings. I do not see my role in this proceeding as being one to assess an appropriate amount of weekly maintenance into the future and in some manner convert that into a lump sum to be taken into account in the adjustment process.
58 The areas of significant contention between the parties in the current proceeding are as follows:
• The nature and extent of the expenses and time of the plaintiff in carrying out the landscaping work at Units 1 and 2; • The financial contributions to the upkeep of the de facto family during the course of the relationship; • Whether the defendant, as principal carer of Haylee, has at the present and will continue to bear a more significant proportion of the parenting and care of the child, including child minding expenses. 59 It is not appropriate, in relation to these areas of dispute, to make a mathematical assessment of the expense and time of the plaintiff in relation to the landscaping, nor such an assessment in respect of the expenses of the parties during the course of the relationship, nor an arithmetic calculation of the ongoing expenses in relation to Haylee and then, by means of addition and subtraction, come to some figure as appropriate for the division of property interests. Rather, it is appropriate to bear all these matters in consideration and then, taking a global approach, come to an appropriate adjustment which is just and equitable in the circumstances.
Conclusions as to the Appropriate Adjustment of Interest
60 The first matter to note in respect of this proceeding is that the domestic relationship was for a period of only twelve months. In fact, it would not have come within the provisions of Part IX of the Act save for the fact that the parties have a child of the relationship. At the outset, all of the real estate was held by the defendant. She made all the payments towards the mortgage on the various properties. In my view, therefore, it is not appropriate to make any order altering the interests of the defendant in the various properties.
61 I bear in mind that the financial contributions towards the upkeep of the relationship, and the various expenses incurred were paid by the parties in the proportion approximately as to two-thirds by the defendant and one-third by the plaintiff.
62 In my view it is significant that the defendant undertook a considerable amount of landscaping work over the period from May 2006 until Christmas 2007 at Units 1 and 2. The defendant concedes the plaintiff spent approximately $8,000 in landscaping expenses. I accept the plaintiff expended the sums referred to in Exhibit 1 totalling a further sum of approximately $7,000. I additionally allow additional expenses relating to plants and trees of $3,200, and payments made by the plaintiff to co-workers of $1,800. Thus the out of pocket expenses total approximately $20,000. I further accept that the plaintiff spent in the order of forty days working in the year 2006, and worked regularly in the landscaping work in 2007. There is no evidence as to an appropriate hourly rate that would be allowed to a landscaper of the experience of the plaintiff. In my view it is not appropriate to tally up the number of hours and allow a lump sum to the plaintiff in consideration thereof. To do so would invite the same assessment in respect of the number of hours spent by the defendant in the care of Haylee, and in the duties she performed as a homemaker.
63 The plaintiff brought into the relationship an amount from the sale of his boat which I accept was expended in domestic expenses. Likewise the defendant incurred credit card debt in paying household bills and mortgage payments in proportion greater than the plaintiff.
64 Against these contributions by the plaintiff are the financial contributions of the defendant. During the course of the relationship she bore a higher proportion of household expenses than did the plaintiff. She has borne a greater proportion of the expenses relating to Haylee since separation. The plaintiff had the benefit of living, effectively rent-free, in Unit 2 owned by the defendant for most of the relationship. These matters should be taken into account in balancing the respective contributions.
65 Looking at the matter globally, and bearing in mind the length of the de facto relationship, I am of the view that it is not appropriate that there be any percentage adjustment in the real estate held in the name of the defendant. Rather, it is my view such an adjustment ought to take place by way of a lump sum payment. Doing the best I am able to satisfy the requirements of s.285 of the Act as to justice and equity, in my view it is appropriate to order the defendant make payment to the plaintiff of the lump sum of $15,000 by way of adjustment of interests.
66 I shall make orders after consulting with counsel.
- - -
0
5
0