Glover v Crispen
[2009] NSWSC 425
•22 May 2009
CITATION: Glover v Crispen [2009] NSWSC 425 HEARING DATE(S): 17/03/09, 18/03/09
JUDGMENT DATE :
22 May 2009JURISDICTION: Equity Division JUDGMENT OF: Macready AsJ at 1 DECISION: Paragraph 45 CATCHWORDS: Family Provision. Application for property adjustment under s20 of Property (Relationships) Act 1984. Short period of cohabitation. Orders for adjustment. No matter of principle. PARTIES: Janette Glover v Dennis Crispen FILE NUMBER(S): SC 3220/07 COUNSEL: Mr P Davies for plaintiff
Mr GW McGrath for defendantSOLICITORS: Fishburn Watson O'Brien for plaintiff
MBT Lawyers for defendant
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
ASSOCIATE JUSTICE MACREADY
Friday 22 May 2009
3220/2007 Janette Glover v Dennis Crispen
JUDGMENT
1 HIS HONOUR: This is a hearing of the plaintiff’s application for adjustment of the parties’ interests in property pursuant to section 20 of the Property (Relationships) Act1984.
2 The plaintiff, Janette Glover, and the defendant, Dennis Crispin were in a de facto relationship from 11 November 2003 until 31 July 2006 a period of just 2 years and 9 months.
3 There were no children of the relationship but the plaintiff’s daughter of a prior de facto relationship, Holly (who is now 18 years old), lived with the parties throughout the course of the relationship. The plaintiff’s son from a prior marriage, Mitchell, lived with them also from time to time during the relationship.
Background facts
4 The plaintiff was born in June 1951 and is now 57 years old. Mr Crispin was born in December 1950 and is now 58 years old.
5 The plaintiff had two children of a prior marriage, Casey and Mitchell, and as discussed, a child of a prior to de facto relationship, Holly, born in July 1990.
6 The plaintiff and the defendant first met in May 1998 and in about September that year the defendant commenced staying overnight at the plaintiff's home at Gresham Drive, Woolgoolga, one night during the week and on the weekends. Later the overnight stays increased in duration of up to four nights a week.
7 On 11 November 2003, the defendant moved in to live with the plaintiff in her home at Gresham Drive, Woolgoolga and at that time that the parties commenced living together as a de facto couple.
8 The defendant had his own home at Pacific Street, Corindi Beach, New South Wales which he rented from the time he moved in with the plaintiff.
9 As I have mentioned the de facto relationship came to an end on 31 July 2006, when the defendant returned to live in his own home at Pacific Street, Corindi Beach. During the relationship and subsequently the parties kept their income expenses and assets separate.
10 In Howlett v Nielson [2005] NSWCA 149; (2005) 33 Fam LR 402, at [25], the Court accepted that the exercise of jurisdiction under section 20 of the Act involved three steps:
(1) identification and valuation of the property of the parties;
(2) identification and valuation of the respective contributions of the parties, of the types referred to in s 20;
(3) determination of what if any order is just and equitable having regard to these contributions.
Property of the parties at the commencement of the de facto relationship
11 The parties had no joint property at the commencement of their relationship, during the relationship or at its conclusion. At the commencement of the relationship the financial resources and liabilities of each party was as follows:
Assets, Liabilities and Financial Resources PlaintiffDefendant 12 Gresham Drive, Woolgoolga, NSW$370,000 39 Pacific St, Corindi Beach, NSW$275,000 Motor Vehicles$4,500 Household Furniture & Effects$7,815$3,415 Long Service Leave$2,715$43,120 Superannuation Retirement Scheme$391,723 Superannuation Accumulation Scheme$27,321 $12,183 Shares$76,508 Managed funds$56,572 Commonwealth Bank $7,521 ING Direct$40,341 Bananacoast Credit Union$5,204 TOTAL$417,555$906,383
12 The total value of the pool of their respective property at the commencement of the de facto relationship was $1,323,938. Of those assets, the defendant brought with him into the relationship 68.46 per cent of those assets; the plaintiff brought with into the relationship the remaining 31.54 per cent of those assets.
13 The value of the defendant’s superannuation retirement scheme is the agreed value which was determined in the Joint Expert Report dated 10 December 2008.
14 The documentary evidence in exhibit 9 has proved the value of the defendant’s managed funds.
15 As I have mentioned, the parties kept their respective assets and incomes separate throughout the course of their de facto relationship. At the conclusion of the relationship on 31 July 2006 they had not purchased any joint property. The financial resources and liabilities of each party was then as follows:
| Assets, Liabilities and Financial Resources |
| PlaintiffDefendant |
| 12 Gresham Drive, Woolgoolga, NSW$390,000 |
| 39 Pacific St, Corindi Beach, NSW$280,000 |
| Motor Vehicles$8,500 |
| Household Furniture & Effects$11,040 $3,555 |
| Long Service Leave$19,221 $55,440 |
| Superannuation Retirement Scheme$532,750 |
| Superannuation Accumulation Scheme$56,161 $126,019 |
| Shares & Investments$226,019 |
| Commonwealth Bank CDIA$2,924 |
| ING Direct$34,654 |
| Bananacoast Credit Union$835 |
| Tax Refund (18/08/06) nett of fees$4,643 |
| Less |
| Visa card debt-$3,399 |
| BCU car loan-$1,474 |
| Tax liability-$957 |
| TOTAL$485,527$1,260,404 |
16 There is a valuation of the plaintiff’s car given by an expert and I prefer that valuation to the defendant’s valuation which is from the Red Book Valuation.
17 The defendant has provided the only expert evidence as to the value of his home at Pacific Street, Corindi Beach which I accept.
18 The defendant’s superannuation entitlements of $532,750 are the agreed value determined in the Joint Expert Report dated 10 December 2008.
Property of each party as at the hearing
19 The parties’ respective assets, liabilities and financial resources as at hearing are:
Assets, Liabilities and Financial Resources PlaintiffDefendant 12 Gresham Drive, Woolgoolga, NSW$410,000 39 Pacific St, Corindi Beach, NSW$345,000 Motor Vehicles$8,500 Household Furniture & Effects$11,040 $3,555 Superannuation Retirement Scheme$533,478 Superannuation Accumulation Scheme$65,454 $126,931 Shares & Investments$161,364 Commonwealth Bank CDIA$3,608 ING Direct$55,048 Bananacoast Credit Union$2,452 Less Visa Card Debt-$1,481 TOTAL$495,965$1,228,984
20 The total assets at hearing were $1,724,949. Of those the defendant had 71 per cent and the plaintiff 21 per cent.
21 Mr Dover’s valuation of the plaintiff’s home at Gresham Drive, Woolgoolga, dated 12 March 2009, was $410,000. Mr McKeown valued it at $390,000 in a report from 4 March 2009.
22 The valuers prepared a report in which, after conferring, agreed to adopt a mid range of $410,000. As they are prepared to do that, I think I can accept that as the value.
23 Mr McKeown valued the defendant’s home at 39 Pacific Street, Corindi Beach, at $360,000 and Mr Dovers value was $310,000.
24 In their joint report Mr McKeown moved to $345,000 and Mr Dovers to $320,00. A point of departure between them was whether it was appropriate to adopt the summation method used by Mr Dovers and they both point to different comparables. Given the later comparables adopted by Mr McKeown I will accept his value of $345,000.
25 The defendant’s superannuation retirement scheme having a value of $533,478 is the agreed value in the Joint Expert Report without a deduction for taxation payable on that benefit.
Financial contributions
26 The parties agree that having regard to the nature of the relationship before the defacto relationship commenced that I should have regard to contributions during the earlier period of cohabitation. This is in accordance with authorities; see McDonald v Stelzer [2000] NSWCA 302; (2000) 27 Fam LR 304, and Jones v Grech [2001] NSWCA 208; (2001) 27 Fam LR 711.
27 The plaintiff gave evidence of the costs she incurred for the time the defendant resided either part-time for full-time in her home. These were:
Food Rates Telephone Interest Gas Alcohol Total
28 The plaintiff had expenses for her home of $12,570 and expenditure on hardware. That was a contribution to her property, which she will retain.
29 The plaintiff paid some $18,303.71 for holidays but each party usually paid their own half share in this regard.
30 One of the matters arising in this case was that it was apparent that that the defendant did little to contribute to the costs of the plaintiff’s home and living expenses on the basis that he would, as agreed between them, make superannuation payments from his salary which would be for their benefit in the future. Over the period of the relationship there was an increase of some $114,748 in value of the defendant’s superannuation resulting from this salary sacrifice.
31 There was a debate about when it was this discussion took place and that is relevant to the resolution of the issues as to the amount contributed. The defendant put the conversation at December 2003 or January 2004 just after the full time relationship commenced. The plaintiff agreed that he started salary sacrificing after they started to live together full time. Accordingly it is necessary to look at the increase in the salary sacrifice account for superannuation between December 2003 and separation. This would be $111,270.
32 When considering her contributions to the running costs of the household which I have mentioned above of $83,853 that is a total amount for her, the defendant as well as any children who were living in the home. Then defendant’s contributions to food were minimal in the order of $50 to $60 per week.
33 For many years the only case which gave guidance on the matter was Green v Robinson (1995) 36 NSWLR 96; (1995) 18 Fam LR 594. Although there is some dispute about what the majority said one view seems to be that comments of Powell JA and Cole JA were that there had to be demonstrated some factual matter which would enable one to form a view that there had been a contribution to a spouse’s superannuation entitlement. In Chanter v Catts [2005] NSWCA 411; (2005) 64 NSWLR 360, the Court of Appeal in dealt with the matter recently. Bryson JA’s views at [82] to [90] were adopted by Hunt AJA, and substantially agreed with by Hodgson JA. The views of the Powell JA and Cole JA were rejected, and the approach of Kirby P, who had dissented, was adopted. Accordingly, superannuation entitlements are not to be viewed as belonging to the parties separately, but as financial resources of the parties which need to be adjusted having regard to contributions “made directly or indirectly” by them. Normally the court will take a global view of the matter. How this works out in practise, having regard to difficulties in accessing such financial resources, is difficult to tell.
34 This case is an example where one can see a contribution directly related to this particular part of the defendant’s superannuation. His other retirement superannuation is as a result of his work efforts over the 2 year and 9 month period. To the extent that the plaintiff’s non-financial contributions may have assisted his work efforts some allowance should be made. It should however only be a small proportion of the increase of $141,755.
35 It is also to be noted that each party had an entitlement to long service leave and those entitlements as they relate to the plaintiff and the defendant will be preserved and relate to their respective employment. They were both employed during the period of the relationship and neither seems to have made contributions to the other party’s long service leave. I will thus not take them into account.
36 The plaintiff submits that there was a benefit to the defendant from the arrangement they had in that he was able to rent his house. The evidence would indicate that the net sum he received after expenses for the period of the relationship was approximately $9,000.
37 The defendant contributed $3,615 to the cost of the plaintiff’s car purchased during the relationship.
Non-financial contributions
38 The plaintiff and defendant both had minor contributions by way of suggestions or minor work to each other’s homes but having regard to the nature of these matters they can be put to one side.
39 The plaintiff did most of the washing and ironing but the defendant ironed his own business shirts. The plaintiff did all the cooking including breakfast. It is to be remembered however that both worked throughout then relationship and the only child at home for most of the time was Holly.
Discussion
40 The plaintiff initially claimed an adjustment of $250,000 and at the commencement of the hearing this was reduced to $200,000. For his part the defendant suggested that depending upon the approach taken by the Court an amount of either $45,000 or $60,000 would be appropriate.
41 As I have commented earlier the parties kept their respective assets and incomes separate throughout the course of their de facto relationship. There was little relevant contribution to each other’s property. In these circumstances it seems to me that the relationship should be considered on the basis that each party has approached the relationship, namely that each party should keep their respective homes and investments.
42 It will be noted that the percentage share of the total assets has shifted in favour of the defendant. This is because of a number of factors. The housing values favoured his house as the plaintiff’s property has increased by $40,000 and the defendant’s by $70,000. His superannuation has substantially increased. In this case one can readily identify contributions to the contributory superannuation scheme but not the other scheme. They result no doubt from his higher salary compared to that of the plaintiff and the terms of the scheme.
43 Just because these assets have appreciated in this way does not mean that the plaintiff should be automatically entitled to a share of the assets. An entitlement has to be found in contributions to assets. This should this be particularly so in a case such as the present where the relationship is short and there is little opportunity to reflect substantial non-financial contributions over the long period of the relationship. However, what non financial contributions there were will be taken into account in the final figure.
44 There should be an adjustment for other financial contributions. Given her expenditure I think the plaintiff should have half of the amount by which the salary sacrifice superannuation has increased and there should be adjustments for the other financial contributions. For example, it would be appropriate to share the $9,000 rental benefit the defendant received as a result of the relationship and the plaintiff should give a credit for the amount given to her to enable her to purchase her car.
45 In my view the amount that should be paid by way of adjustment to the plaintiff by the defendant is the sum of $85,000.
46 I will hear the parties’ submissions on costs at a date to be fixed when the parties can bring in short minutes.
**********
0
4
0