Grady and Chilcott and Ors (No.2)
[2019] FCCA 2119
•5 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GRADY & CHILCOTT & ORS (No.2) | [2019] FCCA 2119 |
| Catchwords: FAMILY LAW – Dispute with respect to length of de facto relationship and whether the Court’s jurisdiction is enlivened – if jurisdiction is enlivened the assessment of contributions and whether there should be any adjustments – whether or not the first respondent holds part of his interest in several properties on trust for the second, third and fourth respondents. |
| Legislation: Family Law Act 1975 (Cth), pts.VIIIA, VIIIAB, ss.4AA, 79, 79(2) |
| Cases cited: De Angelis & De Angelis (1999) 30 Fam LR 304 |
| Applicant: | MS GRADY |
| First Respondent: | MR CHILCOTT |
| Second Respondent: | MR A CHILCOTT |
| Third Respondent: | MR B CHILCOTT |
| Fourth Respondent: | MS C CHILCOTT |
| File Number: | MLC 1297 of 2014 |
| Judgment of: | Judge Harland |
| Hearing dates: | 5 November 2018, 13 and 14 February 2019 |
| Date of Last Submission: | 8 May 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 5 August 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Starvis |
| Solicitors for the Applicant: | Anthonys Solicitors |
| Counsel for the First Respondent: | Mr Penno |
| Solicitors for the First Respondent: | Bevan-Rhys James |
| Counsel for the Second, Third and Fourth Respondents: | Mr Goddard |
| Solicitors for the Second, Third and Fourth Respondents: | Prior Law |
ORDERS
Pursuant to s.90RD of the Family Law Act1975 a de facto relationship between MS GRADY and MR CHILCOTT existed between late 2005 and September 2013.
Pursuant to s.90SL of the Family Law Act 1975 each of the parties MS GRADY and MR CHILCOTT shall be and hereby are declared to be the sole and absolute owners at law and in equity of:
(a)all items of furniture, furnishings, personalty, chattels and jewellery;
(b)all monies (whether held in cash or in deposit with any financial institution);
(c)any motor vehicle;
(d)all contributions to or benefits or entitlements arising from membership of any fund of insurance or superannuation whether such interest be present, contingent or expectant;
in the possession, custody or control in which either has an interest which are not otherwise dealt with in these orders.
That the response filed by the second, third and fourth respondents on 11 November 2018 be dismissed.
MS GRADY within 7 days forthwith remove any caveat lodged on her behalf on the title to Property B1, Property B2, Property B3 and Property A properties.
That all outstanding applications be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Grady & Chilcott & Ors (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 1297 of 2014
| MS GRADY |
Applicant
And
| MR CHILCOTT |
First Respondent
| MR A CHILCOTT |
Second Respondent
| MR B CHILCOTT |
Third Respondent
| MS C CHILCOTT |
Fourth Respondent
REASONS FOR JUDGMENT
This is a bitter dispute. Ms Grady and Mr Chilcott each blame the other for the protracted nature of the dispute. The finalisation of these proceedings were delayed whilst the criminal proceedings were on foot. They have each expended significant sums on legal fees in both proceedings. Despite the amount of documents before the court and the bitterness of the dispute, the issues I am required to determine do not require me to traverse all of that material. Each of the parties also filed detailed written submissions which I have also considered.
I refer to the earlier judgment I delivered in these proceedings: Grady & Chilcott & Ors [2018] FCCA 1690. In those reasons I set out the chronology of the proceedings and address the joinder issue. Those reasons should be read with these reasons for background.
In this case, to avoid confusion, I will refer to the applicant Ms Grady and first respondent Mr Chilcott by their first names and the other respondents (“Mr A Chilcott, Mr B Chilcott and Ms C Chilcott”) by their first and surnames. I intend no disrespect by doing so.
The trial
Due to concerns about the length of the trial, particularly with the joinder of parties, I required the parties to file a trial plan. This was complied with. On the date of trial there were issues with all parties with respect to non-compliance and seeking to rely on late material. Given the length of time the proceedings have been on foot, compounded by the fact that this is the second trial listing, I did not allow any late material or material not anticipated in the trial plan to be relied on. It is far too late to raise these issues at the beginning of a trial, which has been listed for hearing many months in advance.
Objections to affidavits
The trial plan filed by counsel made no allowance for objections to affidavits. The issue of objections to affidavits was not raised until it was raised by Mr Chilcott’s counsel just as he was to begin cross-examining Ms Grady. He did not raise the issue with the other counsel prior to trial. This is unsatisfactory. There was no reference to objections in any of the trial case outlines. There are issues of admissibility with respect to all of the trial affidavits. As the remaining days of the trial were listed for several months after the first day of the trial, counsel for Mr A Chilcott, Mr B Chilcott and Ms C Chilcott suggested that the other counsel agree to the filing of written submissions with respect to objections during that period so as not to take up court time.
After receipt of the submissions I requested counsel to confer to see if they could narrow the issues. They did so. At the resumption of the trial counsel agreed that rather than making oral argument on the remaining objections that were not agreed, they were satisfied that they would leave it to the Court to determine what weight if any could be put on the disputed evidence. This was a sensible approach in the end. Counsel contained the evidence to three days and then sought to make written submissions given the voluminous material before the court. Again, this was a sensible approach.
I need not comment on the objections further save to note that there was much material in the affidavits filed on behalf of the parties which contained inadmissible material including, hearsay, comment and submissions.
I did not allow Mr B Chilcott’s affidavit into evidence as it merely adopts his brother’s evidence. By doing so Mr B Chilcott does not give any evidence at all. I agree with the observations made by Barrett J in Singh and Singh [2007] NSWSC 1357.
The purpose of the affidavit is for the deponent to give the written version of their evidence in chief, being what he or she saw, heard or perceived. Mr B Chilcott successfully sought to be joined as a party to these proceedings, yet failed to effectively give any evidence.
One of Ms Grady’s complaints has been with respect to Mr Chilcott’s failure to produce the consent orders with respect to his family law settlement with his former wife Ms H. His brother Mr B Chilcott had a relationship with Ms H after his relationship with her broke down. Ms Grady’s Counsel argues that the failure to produce the consent minute or the proceedings number of the file is significant with respect to whether or not a trust exists amongst the respondents. This is one of the issues Mr B Chilcott was aware of and should have addressed in his evidence. One of the other significant issues in dispute is the nature of the relationship between Ms Grady and Mr Chilcott. Mr B Chilcott would have also been able to give evidence about his observations of them in his evidence as well.
The applicant’s case
It is Ms Grady’s case that she and Mr Chilcott were in a de facto relationship from 2004 to 2013. She says she made significant contributions during the relationship including homemaking tasks and assisting in Mr Chilcott’s business.
In her case outline she sought 40% of the net asset pool. In her written submissions she seeks a “just and equitable” settlement with a “significant loading in her favour” based on the way Mr Chilcott litigated the case. She does not expand on this. Those submissions do not assist me.
Mr A Chilcott, Mr B Chilcott and Ms C Chilcott’s Counsel refers to the fact that Ms Grady does not specify what orders she seeks as being just and equitable. That is a legitimate criticism. This remained Ms Grady’s position even in the submissions in reply. This is an incredibly unsatisfactory position at the end of a trial. It is also curious given that her case outline sought 40% of the asset pool which was an unrealistic position.
The first respondent’s case
Mr Chilcott concedes that there was a de facto relationship but says it was only for a couple of years and ended in 2008. The court does not have jurisdiction with respect to de facto relationships which ended before 1 March 2009.
He submits that if the court finds a de facto relationship existed after 1 March 2009 it would not be just and equitable to make any orders for a property adjustment in the circumstances of the case.
Mr Chilcott says she made minimal contributions. She was able to keep her income for herself. He mostly looked after his own domestic chores and says she did not have the skills to help him in the business. He acknowledges that she entered information into the computer but says she insisted.
The second, third and fourth respondents’ case
Mr A Chilcott, Mr B Chilcott and Ms C Chilcott seek orders that the Court declares that Mr Chilcott’s title over the properties situate at Property B1, Property B2 and Property B3 are subject to an implied or resulting trust in favour of Mr A Chilcott, Mr B Chilcott and Ms C Chilcott namely 20% to Mr A Chilcott, 20% to Mr B Chilcott and 40% to Ms C Chilcott of the unimproved value of the respective properties. Their written submissions commence with the statement “These proceedings are remarkable for the audacity of the Applicant’s position.” They argue that in essence Ms Grady is seeking to have this Court “relieve her of the adverse consequences of her own criminal conduct” by giving her a property settlement. At paragraph 5 and 6 of their written submissions, Counsel submits:
“5. Remarkably, not only was her family law application vigorously reagitated after she had pleaded guilty on … 2017, but in these proceedings she seeks to assign to the First Respondent - a victim of her offending - responsibility for the legal costs of defending the criminal charges to which she ultimately pleaded guilty. She implicitly asks this court to relieve her of the adverse consequences of her own criminal conduct by giving her an adjustment pursuant to section s75(4) [sic] to take into account her criminal history, the impact that will have on her employment prospects and the fact that the sentencing court imposed a criminal sanction on her by way of a Community Corrections Order (to which she consented). Even more extraordinarily, the Applicant submits in her case outline at Page 7 at G that 'the respondents have not come to Court with 'clean hands".[1]
“6. The circumstances demonstrate a total lack of insight into the criminally dishonest nature of her offending. Significantly for the Court dealing with this application under the Family Law Act, these circumstances must colour her evidence. They undermine her credibility and her reliability. It is the Applicant that seeks to persuade the Court that it is just and equitable to alter the parties' existing property interests for her benefit. Given her egregious criminal conduct for which she remains singularly unrepentant and for which the victims remain uncompensated and while her ill-gotten gains are unaccounted for, it is contrary to public policy for her to be permitted to call upon notions of justice and equity to secure a further financial gain by attempting to invoke the Court's jurisdiction under the Family Law Act.”
[1] Footnotes omitted.
This extract gives a flavour as to why these proceedings have been bitterly fought.
Great care needs to be taken with respect to the treatment of the criminal proceedings so as not to subject Ms Grady to what would in effect be double jeopardy. She has been convicted and punished. My focus must be on the statutory requirements set out in Part VIIIAB of the Family Law Act 1975 (Cth) (“Family Law Act”).
Ms C Chilcott
Ms C Chilcott was excused from attending the trial and being cross-examined due to her ill health. By agreement her two affidavits in these proceedings were admitted into evidence, as was the transcript of her evidence in the criminal committal proceedings.
The Issues I am asked to determine
The following issues are in dispute:
a)should Ms Grady be ordered to pay $82,976 being the amount Mr Chilcott says is the difference in the amounts he claims Ms Grady stole and what she pleaded guilty to in the criminal proceedings. I note that by the time of written submissions being filed Mr Chilcott was no longer seeking an order to this effect whilst still maintaining the complaint about additional funds being stolen;
b)the length of the parties de facto relationship, including the beginning and end of the relationship;
c)whether or not a trust exists between the first, second, third and fourth respondents;
d)if a de facto relationship existed after March 2009, is it just and equitable to make an adjustment of the parties’ legal and equitable interests?
Criminal proceedings
In 2017, Ms Grady was charged with (charges omitted) from the period … 2009 to … 2013.
Mr Chilcott says he found out about Ms Grady offences on 26 September 2013. He says that although she was prosecuted for the sum of $... she actually took $141,262.98. He says that as a result of the money being stolen, he could not meet various financial commitments for Company E which was the business he ran for many years, commencing in 1990.
Ms Grady pled guilty to one rolled up charge of (omitted) and one charge of (omitted) which was with respect to $5,000 taken from Ms C Chilcott. Exhibit A is a transcript from the criminal proceedings in the (omitted court) on … 2017. At paragraph 24 Judge G notes that the separate charges of (omitted) Ms Grady was facing was a sum in excess of $.... The charge acknowledged by Ms Grady was rolled up and put into a single (omitted) charge of $..., in addition to the (omitted) charge of $... .
Ms Grady was convicted of these charges and sentenced to a Community Corrections Order for a period of two years where she was to complete unpaid, supervised community work. In addition, Ms Grady was ordered to pay compensation in the sum of $... to Mr Chilcott and $... to Ms C Chilcott. She has not repaid these sums. She says she does not have the money.
As during the trial Mr Chilcott referred to further funds he claims Ms Grady stole, it is necessary to look at the evidence of the accountants and Mr Chilcott’s evidence with respect to his management of his financial affairs.
The accountants
Mr H is an expert accountant who was engaged by Ms Grady in the criminal proceedings. He also swore an affidavit in these proceedings and was cross-examined. In his report he refers to the “copy of copy of [sic] all cheque-book 2015 spreadsheet”. In his view, the transactions on that spreadsheet were compiled at least in part to reconcile the BAS lodged at that time and “was not solely an attempt to recreate transactions.” He referred to there being extensive widespread errors in the expense registers every quarter and many examples of GST being claimed when it should not have been claimed. “In my opinion, the quantum of business expenses recorded as paid in cash have been used as a balancing item each quarter to ensure the GST claimed on the BAS can now be traced to an explanation.”
Mr Chilcott relied on the affidavit of his accountant Mr J sworn on 26 February 2018. He was not required for cross-examination and his affidavit was entered into evidence. He comments on the preparation of BAS for Company E and also comments on Mr H’ report. I accept what Mr J says about it not being uncommon for a sole trader to use one bank account for both business and personal expenses. Most of his affidavit consists of annexures the bulk of which is the “copy of copy of [sic] all cheque-book 2015 spreadsheet” which was used to prepare the BAS. This does not assist me.
Mr J also responds to Mr H’ reference in his report to $97,000 being unaccounted for saying, “this cash may have come from various sources, however most likely a source would be in drawings taken from Mr Chilcott’s account and may then have been used to make cash purchases for the business. It could also have been stolen funds.” Given the equivocal nature of this evidence it does not advance matters. I am not critical of Mr J in this regard, rather it is a reflection of the poor state of record-keeping by Mr Chilcott.
Tax
Mr Chilcott caused the rental payments he received from Company K and Company L to be transferred into Ms Grady’s bank account. He says he did not try to hide this and did it for convenience so that she would have money when they went out for dinner. He says the arrangements with Company K and Company L were temporary and informal so there was no point in having a long-term formal lease agreement. He referred to the funds he deposited into Ms Grady’s account as “splash money”. When cross-examined he said they only rented from him for a few weeks or a couple of months. When shown the bank statements he had to concede that it was for an 18 month period from March 2012 to October 2013. The rent was significant being approximately $800 a month from Compnay K and $750 a month from Company L.
There were other funds he deposited into Ms Grady’s account in 2010. He accepted that the sum of $9,000 he received for the sale of an old vehicle was paid into Ms Grady’s account. There was also the sum of $4,400 he deposited into her account which he says was from a job he did for Company M.
Mr Chilcott did not declare the rental income he received from either Company K or Company L to the Australian Tax Office (“ATO”). He was not able to provide a convincing explanation as to why he arranged for those payments to be paid into Ms Grady’s account particularly given his evidence that they were only friends “with benefits” and not in a committed de facto relationship.
Ms Grady’s Counsel put to Mr Chilcott that the reason he was putting money into Ms Grady’s bank account at that time was because they were in a de facto relationship and that it was to be used for their common entertainment expenses. Mr Chilcott said they were very good friends at the time and that they would go out and put money in her account and enjoy it. I have difficulty accepting that evidence given he had his own bank accounts and given the significance of the sums which were paid over many months.
He claimed it was “no big deal” and “just going out for dinner”. $1,550 a month over 18 months equals $27,900. That is not an insignificant sum that he also failed to declare to the tax office. When it was put to him that he has stolen from the tax office he said that “well, if you add up how much I’ve paid in tax, you wouldn’t look at it that way.”[2]
[2] Transcript 189
Mr Chilcott says that he has not intentionally misrepresented his income to the ATO and is willing to resubmit his tax documents. At best, it was clear from his oral evidence that he has a reckless disregard with respect to the accuracy of his returns. It is clear that he believes he pays plenty of tax. He will need to file amended tax returns declaring the income he did not previously. I am not prepared to go so far as to find he has committed fraud as Ms Grady’s counsel submits.
The evidence does not support Ms Grady’s submission that Mr Chilcott’s deposits of these funds increased the burden on Ms Grady as she has to account for that income. I do not see how this is the case. She does not give any evidence that she has declared these sums as part of her income and paid increased tax a result.
It also became clear during Mr Chilcott’s evidence that he had an arrangement by several people who carried out work for him to provide him with receipts for things they had paid for, such as fuel, which he would reimburse them for and then claim the GST on those items when he was not entitled to do so. He did not appear to appreciate the seriousness of this and his other accounting practices.
Mr Chilcott conceded that his accountant accepted Mr H’s opinion that there was about $97,000 in unaccounted cash in accordance with the BAS that he lodged. He then said the money came from his income.
Mr Chilcott’s counsel put the proposition to Ms Grady that Mr Chilcott did most of the entries on the spreadsheet but when Mr Chilcott was cross-examined about this he insisted that Ms Grady did most of the entries but said he tidied them up and made them balance. It is clear, as was noted by Judge G in the (omitted court), that Mr Chilcott had very poor accounting practices. This is not unusual in small businesses where the person may be very good at the business but not the bookkeeping administration work associated with it, but this appears to go beyond that, involving failing to declare income and wrongfully claiming GST.
Mr Chilcott also conceded that he did not tell the bank about trust arrangements with his family when seeking to use those properties as collateral to buy Property A. He said that as there was ample income he didn’t need to and there was no problem. At best he has a very careless attitude towards disclosure. Even when he was shown the terms of ANZ’s offer he did not accept that they would have any problem with finding out that he only owned 20% of those properties and not 100%.
The state of the evidence is such that I cannot be satisfied Ms Grady has stolen further sums and that aspect of Mr Chilcott’s claim fails.
Did the relationship commence in 2004 or 2005?
Ms Grady says she met Mr Chilcott at Location N on 10 May 2004. She was there with her sister for a (omitted) class.
Mr Chilcott says they did not meet until May 2005. When cross-examined Ms Grady said she could not remember the type of car Mr Chilcott had when they met. Mr Chilcott says he bought vehicle O in 2005 and had that car when he met Ms Grady. Ms Grady said he already had a (description omitted) car.
Ms Grady says that they dated for about six months before she moved in with him at his home at Property B3 at the end of November 2004. Property B3 is a property with a living area upstairs.
Ms F is Ms Grady’s mother. She swore an affidavit on 14 October 2014. During her cross-examination, Ms F said she had some trouble remembering dates. Given she was asked to remember dates for many years ago, nothing turns on that. Ms F first met Mr Chilcott in 2005 when Ms Grady introduced him as her boyfriend. She says that Ms Grady and Mr Chilcott often visited her and her husband.
Mr P is a tradesman who has known Mr Chilcott for many years. Mr P said he would regularly do repair work on his vehicles and they are friends. He says he met Ms Grady in 2005 and remembers this because she had been in a motor vehicle accident and her vehicle Q was written off.
When cross-examined, Mr P said that he did not know what Ms Grady and Mr Chilcott’s relationship was. He said he never asked and Mr Chilcott never mentioned it. He said they did go out with them occasionally. He said he knew she was staying at Mr Chilcott’s property but did not know if she was living with him or in what context, he was not sure. He recalled Ms Grady’s son being at Mr Chilcott’s property but does not recall him living there.
I am satisfied that on the balance of probabilities Ms Grady and Mr Chilcott met in 2005 not 2004. Both Mr Chilcott and Mr P were able to give more detailed evidence and pinpoint the year. Ms F was not clear on dates. As they met in May 2005 and Ms Grady moved into Mr Chilcott’s home about six months later, it is likely their de facto relationship started in late 2005.
Legal Principles with respect to the indica of a de facto relationship
Section 4AA of the Family Law Act sets out the definition of a de facto relationship. Section 4AA(2) to (5) state the following:
(2) Those circumstances may include any or all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
(3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4) A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
Counsel referred to various decisions which address the task of determining whether or not a de facto relationship exists including Sinclair and Whittaker [2013] FamCAFC 129 and Jonah and White [2012] FamCAFC 200. I have considered those and the other cases referred to.
Were Ms Grady and Mr Chilcott in a de facto relationship after 2008?
It is important to note that Mr Chilcott has conceded that they were in a de facto relationship for a couple of years until 2008. As a result, the various comments he makes in his trial affidavit about not understanding how they could have been in a de facto relationship at all is irrelevant. The effect of his concession is that it is not a case about whether or not they were ever in a de facto relationship but whether or not the de facto relationship continued after the first couple of years. It is necessary then to look at the nature of their relationship from that period until 2013 and whether it differed in nature from the earlier period when Mr Chilcott concedes they were in a de facto relationship.
Mr Chilcott says the “mutual friendship/relationship” started in 2005. He says he remembers that because he had just bought a car. He says throughout their relationship they were both “self-sufficient” and did not rely on each other. They did not have joint bank accounts. In his affidavit he says she did not cook, clean or wash his clothes for him. This was inconsistent with his evidence in cross examination. Mr Chilcott had difficulty conceding that Ms Grady did domestic chores in the home and said it was no big deal for her to do his laundry as well as her and her sons as it is just pressing a button. He said he did not like spicy cooking so they would eat out or he would cook for himself.
He says Ms Grady moved into his premises on what he understood to be a temporary basis whilst she looked for appropriate accommodation after having to move from her sister’s home as she was getting married. He says he did not charge her rent as he knew she was saving money to bring her son to Australia from Country E.
He says she stayed in an office space which was converted to a guest room. Ms Grady says that they slept in the same bedroom.
Ms Grady’s son Mr D moved to Australia in 2008. Mr Chilcott says he agreed to him staying with them for a few months. He says a few months later Mr D moved into a rental property at Suburb R. He says Ms Grady moved into that property a few months later. She would visit him from time to time to do laundry and would occasionally stay overnight.
Ms Grady says Mr D stayed with them for six months and worked for Mr Chilcott without pay until they had an argument and Mr Chilcott told Mr D to move. Mr D moved into a rental property at Surburb R. In her affidavit she says as he had newly arrived to the country he could not get a lease in his name so she signed the lease in her name. This is plausible.
Mr S is a friend of Mr Chilcott’s. Mr S says Ms Grady lived at Property D in 2008 to 2012. He says that her son Mr D joined her in 2010. He said Mr D paid rent to him in cash and he gave Mr D receipts. He says he would check the mail every day and would often see Ms Grady there and her car was often parked there.
His evidence with respect to when Mr D came to Australia and started living there does not align with the evidence of either Ms Grady or Mr Chilcott. I do not suggest that Mr S is lying. Rather he has been asked about dates from a very long time ago. His evidence does not advance matters.
Ms Grady denied living at Suburb R and denied paying the rent there. She says her son lived there and paid the rent. She attended that property regularly to visit him and stayed overnight occasionally as her work was close. The evidence of Ms C Chilcott is also consistent with Ms Grady’s version of the relationship. She gave evidence at the committal hearing that Ms Grady and Mr Chilcott were living together. She says that Ms Grady would stay overnight as her work was nearby.
Mr B is a long-term friend of Mr Chilcott who has a property around the corner from Mr Chilcott’s premises. He says he met Ms Grady and her sister Ms A in 2005. He says Ms Grady did move in with Mr Chilcott for a period in 2006 as her sister was getting married and they were living together at the time. He says that Ms Grady moved into Property D in 2008 wanting to get it ready for Mr D. He says he often saw Mr Chilcott at the property as his property was close and would see Ms Grady there occasionally but did not believe she was living there after 2008.
Mr Chilcott conceded that Ms Grady had her mail sent to his address. He said that she would come and go from his property. I think it is more likely that she was living in the property. It makes no sense for her mail to be sent to his address.
He says they remained friends from 2007 until September 2013 and would see each other twice a week for a meal and occasional night out. She would also sometimes stay at his home overnight.
Ms Grady and Mr Chilcott had a sexual relationship. In his written submissions Mr Chilcott’s counsel argued that the abortion Ms Grady had in 2007 was inconsistent with Ms Grady and Mr Chilcott being in a committed relationship. I do not accept that argument. It could equally be because as a couple they thought having children was not right for them. The abortion does not sway me one way or the other.
During cross-examination Ms Grady conceded that they kept their finances separate.
Mr Chilcott claims that Ms Grady started showing an interest in his business accounts and how he prepared BAS statements. She offered to help him. Mr Chilcott says she would go to the bank and ask him if he needed money. He would sign blank cheques for her to pay various bills.
Page 43 of Ms Grady’s trial affidavit is a letter from Mr Chilcott on a Company E letterhead dated 24 June 2013 written in support of Ms Grady’s brother, Mr D Grady coming to Australia for a holiday. In that letter Mr Chilcott says he met him when he visited Ms Grady’s family four years before. He says he will provide financial support for Mr D Grady, by paying for his airfares, accommodation, travel and meals for Mr D Grady. He refers to Mr D Grady being his partner’s eldest brother. Mr Chilcott says he provided the letterhead and did not read the contents. This is supportive of Ms Grady’s contention that they were in a de facto relationship.
When Mr Chilcott discovered the missing funds he told the police that his partner had betrayed him. He had trusted her and she took the money. He would not concede that there is a difference between calling someone a partner and calling someone a friend. In the police records he said “Ms Grady is my former partner… We have been together for six years.” I do not accept his evidence that he was referring to being friends and not in a committed relationship. That is simply not the language of friends.
Mr Chilcott agreed that after he discovered the missing money he ended the relationship with Ms Grady. She attended his home with her sister and brother in law to retrieve her dog and some belongings. He says he saw the door hinges had been tampered with.
In her statement to the police Ms C Chilcott said that “Mr Chilcott had a partner Ms Grady for about seven or eight years… I knew Ms Grady during this time and I loved her like she was my daughter. I trusted her completely.” Her evidence at the committal hearing was also consistent with her being of the belief that Ms Grady and Mr Chilcott were in a committed relationship.
Mr Chilcott conceded that he went to Country E and saw Ms Grady’s family but said it was to drop something off or pick something up. He agreed they were very hospitable and made lunch for them.
Mr Chilcott also conceded that he was often at family functions with Ms Grady and that his mother often attended and that he was at Ms Grady’s citizenship day celebrations. He went to Ms Grady’s sister’s wedding.
Ms Grady says that in 2009 Mr Chilcott travelled to Country E with some friends. She stayed in Australia to look after the business. He visited her family. Mr Chilcott agrees that he did travel to Country E and that he met some of Ms Grady’s family.
Ms F also says in 2009 Mr Chilcott and his friend Mr B visited her family in Country E. She says that after Mr Chilcott returned from Country E he asked her for permission to marry Ms Grady. Ms F provided little detail about this. Neither she nor Ms Grady give any indication that anything further was made of it. Mr Chilcott vehemently denies this. I am not satisfied that such a proposal took place.
Ms F says she invited Mr Chilcott to all of their family functions and he also brought his parents to visit her at her home and they all got on very well.
Ms F also says that she and her husband would be invited out by Mr Chilcott to join him and Ms Grady for dinner and would often wind up at a hotel where she says she saw Mr Chilcott play poker machines for hours at time. She rejected the proposition put to her in cross-examination that they only went out together once and said it was on several occasions and occasionally Mr Chilcott borrowed money from her husband. She says on one occasion she saw Mr Chilcott yell at Ms Grady when he was losing money on the poker machines and that this was at Venue T.
Ms F said she visited Property B on perhaps four occasions. She said Mr Chilcott showed her around.
She agreed that from at least 2009 onwards Ms Grady sent money to Country E and Ms F said that was from Ms Grady’s income. She agreed that she sent money to Country E on Ms Grady’s behalf and said that it was about $250 a month, then maybe two or three months. She then said that it was her money and that she asked Ms Grady to send it for her. It was clear that she struggled somewhat with some of the questions.
She agreed that she has been paying the mortgage on her daughter’s Country E properties since 2014. She also conceded that money has been sent to family members in Country E at various times and it appears that on some occasions using her money and she asked Ms Grady to arrange the transfer. She could not remember the amounts. Curiously the details which were put to Ms F were not put to Ms Grady.
Mr Chilcott had difficulty answering questions when cross-examined as he is clearly of the view that he has been wronged and clearly resented being cross-examined and in court at all. I do not think he was being deliberately obstructive but struggled to focus and answer questions.
I also do not accept the submission from the counsel for Mr B Chilcott, Mr A Chilcott and Ms C Chilcott to the effect that Ms Grady should not be believed because of her conviction for theft and deception.
Separation
Ms Grady says the parties separated on 26 September 2013 when she decided she did not want to live with Mr Chilcott’s abuse any longer. She says she asked and he gave permission for her to borrow $1,000 to be paid back the next day. She says he rang her accusing her of stealing and threatened to kill her.
Mr Chilcott denies giving permission to Ms Grady to borrow $1,000 and denies using any threatening behaviour or abuse as alleged during the phone call. I am puzzled as to why she would seek to borrow $1,000 from him to pay back the next day when the evidence is that he would borrow money from her and repay her. He says he ended their relationship when he discovered the thefts.
Is there a trust arrangement between the respondents?
Mr A Chilcott, Mr B Chilcott and Ms C Chilcott contend that Mr Chilcott holds 80% of his legal entitlement to the properties at Property B1, Property B2 and Property B3 on trust for them. They contend that Mr Chilcott’s title over the properties is subject to an implied or resulting trust in favour of the second, third and fourth respondents namely 20% to the second respondent, 20% to the third respondent and 40% to the fourth respondent of the unimproved value of the respective properties pursuant to what I referred to in my previous reasons as the Chilcott family arrangement. I will not repeat here what I set out at I refer to paragraphs 25 to 32 of my first reasons.
Mr A Chilcott relied on his affidavit he filed in support of his joinder application. When cross-examined he agreed that there is no document stating that he owns 20% of the Property B properties.
Mr A Chilcott owns two or three other industrial properties. He says he paid land tax on those properties. He says that Mr Chilcott paid all the land tax and outgoings of the Property B properties on their behalf (referring to his mother and brother himself).
Mr A Chilcott said that Mr Chilcott told him about using the Property B properties as security for his purchase of Property A at the time he wanted to purchase it. He said that if Mr Chilcott was not able to maintain the payments on the property and it had to be sold, any adjustment that was necessary would be made between the brothers if that was the worst case scenario.
He said he saw his father’s will when he passed away four years ago and that everything of his father’s went to his mother. That wasn’t formally recorded with respect to the ownership of the Property B property but was the understanding of the family.
What was clear from Mr Chilcott and Mr A Chilcott’s evidence is that there is no formal family trust in place. There has never been anything in writing with respect to this and the representations made to other agencies such as the banks and the state revenue office are inconsistent with this.
The applications by Ms C Chilcott, Mr B Chilcott and Mr A Chilcott for a declaration that Mr Chilcott holds a 20% interest each for both Mr B Chilcott and Mr A Chilcott and a 40% interest for Ms C Chilcott in those properties on trust for them must fail. There is insufficient evidence before the Court to make a finding that a resulting or constructive trust exists.
That does not mean that they have not made contributions to those properties and that there was no understanding about a family arrangement amongst them. It simply means that if there is a dispute amongst the respondents in the future about their respective interests in those properties that will be for another forum to determine. It is common for families to have such understandings based on joint endeavours and interests that are not formally documented.
Whilst this issue was raised late in the proceedings and much time has been devoted to it, it would not serve any purpose for me to traverse this issue any further as it does not affect the outcome.
Legal principles with respect to property division
Section 90SB(a) of the Family Law Act is satisfied as the de facto relationship was longer than two years. Section 90SD being the geographical requirement is also satisfied.
Part VIIIA is the part of the Family Law Act dealing with property, spousal maintenance and maintenance agreement between de facto partners. The major provisions relating to de facto property division are contained in ss.90SM(1); 90SM(3), 90SM(4); and 90SF(3) of the Family Law Act.
Until the High Court decision in Stanford & Stanford (2012) 247 CLR 108, the position in respect of the process to be applied to the resolution of matrimonial property cases was said to be well settled with a preferred approach as set out by the Full Court in Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143 at 78,386 [39].
The High Court considered the operation of s.79 of the Family Law Act (which has almost identical terms to s.90SM) in the matter of Stanford. In this case, the majority stated at [35]-[36] that:
35. “It will be recalled that s 79(2) provides that "[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order. Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.”
36. The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.” [Footnotes omitted]
The High Court found three fundamental propositions with respect to the application of s.79, which can be summarised as follows:
1. Firstly, in order to ascertain whether it is just and equitable to make a property settlement order, it is necessary to identify the existing legal and equitable interests of the parties in the property. The High Court emphasised the word ‘existing’.
2. Secondly, although s.79 gives the court a broad power to make property settlement orders it may not be exercised in an unprincipled fashion. There must be no assumption that the parties’ interests are or should be different to their existing interests.
3. Thirdly, when considering whether making a property settlement order is just and equitable the court must not assume that one or the other party has the right to a property adjustment order. The court must give separate consideration to s.79(2) in addition to the matters referred to in s.79(4).
In Stanford the High Court indicated that, in the vast majority of matrimonial property cases, the requirements of s.79(2) will be readily satisfied, largely as a result of a consideration of the circumstances of the parties concerned, particularly the nature of their separation.
The High Court also pointed out that what is just and equitable is different in every case.
The principles referred to in Stanford & Stanford are equally applicable to de facto property matters.[3]
[3] See Watson & Ling (2013) 49 Fam LR 303.
Contributions
Ms Grady acknowledges that at the commencement of her relationship with Mr Chilcott he had his business trading as Company E, factories at Property B2, Property B3 and Property C and Property B1. These properties represent a significant portion of the property pool.
When cross-examined about this, Ms Grady acknowledged that she had no knowledge of the financial arrangements with respect to these properties which were purchased long before she met Mr Chilcott.
She also conceded that none of her salary was used to pay for any of the expenses on the properties owned by Mr Chilcott. She was also paying the mortgage on her property in Country E and brought the second Country E property with her funds.
Ms Grady says that when she moved into Property B3 it was dirty and the furniture was old. She says she and Mr Chilcott went out and bought new furniture, she cleaned it and made it more like a home. Mr Chilcott says he paid for all the furniture.
She said she did domestic chores including washing, cooking and cleaning.
She says she also helped in his business at Mr Chilcott’s request, carrying out bookwork and clerical work, including paying bills, answering phones and preparing BAS. She says Mr Chilcott showed her how to prepare the BAS and she would then give them to his accountant. It became clear during her cross-examination that she did not in fact prepare the BAS but rather entered the expenses onto the computer, and Mr Chilcott would then check them. She was also working as a personal care assistant in an aged care home.
Mr Chilcott says that Ms Grady did not undertake non-financial or financial contributions. He also says that her offer to assist with his bookkeeping enabled her to steal from him. At paragraph 98 and 100 of his affidavit, he says that there was nothing Ms Grady could offer him or the business apart from completing occasional errands and entering information into account spreadsheets, due to her “complete unsuitability to do the work”. Mr Chilcott says at paragraph 14 that Ms Grady did not cook or do any of Mr Chilcott’s laundry and did not clean the living area above the property at Property B3 where she shared residence. He says that he did not ask or expect her to complete such tasks.
As I have indicated in my earlier discussion, I do not accept Mr Chilcott’s evidence that Ms Grady did not undertake any domestic chores. He made concessions when cross-examined about this.
Mr Chilcott’s counsel put to him in cross-examination that he did most of the entering of the amounts into the spreadsheet not Ms Grady. However, when Mr Chilcott was cross-examined about this he said it was the other way round and that Ms Grady made most of the entries and that he would check them for spelling errors and tidy it up and “to make it, you know, right and then make it balance.”
This is consistent with the evidence of Mr H the accountant Ms Grady engaged in the criminal proceedings. With respect to cash amounts being adjusted to reflect the GST paid in the BAS to ensure the accounts balanced after-the-fact.
In her trial affidavit Ms Grady says that she and Mr Chilcott bought an investment property at Property A in 2013 shortly before they separated. She says it has been rented ever since they purchased it.
She does not provide any other details of the purchase including the price or how it was funded.
She conceded that she did not put any money towards the purchase.
Mr Chilcott denies that Propety A was purchased jointly with Ms Grady. He says it was purchased solely with his own funds, borrowed against his interest in the family properties at Property C and Property B1. He says that when asked by Ms Grady if he would put Property A in her name he said no because she had not contributed to its purchase. I do not accept that Ms Grady made any meaningful contribution to this property. There may have been discussions between them about the property and they attended an auction but the property was purchased late in the relationship.
My impression of the evidence of Ms Grady and Mr Chilcott is that neither was seeking to mislead the court. I think Ms Grady exaggerated the extent of her contributions and Mr Chilcott downplayed her contributions. This needs to be seen in the context of the bitter and drawn out nature of dispute and what is at stake for both of them.
Properties in Country E
Ms Grady owns two properties in Country E. She annexes valuations to her trial affidavit. She says the first property at Property U is worth AUD $66,000 with a mortgage of $3500 owing on it. She purchased it in 2002 for $23,600. Her niece and nephew live in the property and pay the utilities but do not pay rent.
The other property is Property V. She purchased it in 2011 for $50,000. When cross-examined about this she said she bought it for approximately AUD $60,000. She says it is valued at $55,300 and has a mortgage owing of $37,500. Her brother lives in the property and pays the utilities but also does not pay rent.
Ms Grady has not submitted admissible valuation evidence with respect to these properties. She annexes valuations to her trial affidavit. She also claims in her case outline that it is difficult to rent those properties out so her family live there and do not pay rent. However, she does not say this in her affidavit. Case outlines are not evidence.
While she was working she would pay the mortgage by transferring funds through Western Union to family members who would then attend a local branch and pay on her behalf. Ms Grady says that since 2017 she has not been in paid employment and her mother made the mortgage payments on her behalf. She says the mortgages are in arrears. Ms F says she has been paying the mortgage for her daughter since about 2014. On either case this is post separation.
It is significant that Ms Grady has been able to purchase a second property in Country E during the relationship. It is consistent with the evidence that she kept her finances separate and did not need to make financial contributions to the expenses of the properties owned by Mr Chilcott.
He says he believes she may have bought her investment property in Country E with money she stole from him. She also regularly wired money to her family overseas.
Allegations of violence, drinking and gambling
At paragraph 50 of her trial affidavit Ms Grady says that Mr Chilcott would threaten to kill or harm her after losing money gambling and would kick doors, slam the refrigerator and swear at her. Her allegations are vague.
Mr Chilcott at paragraphs 103 and 108 of his trial affidavit denies ever having abused Ms Grady physically, emotionally or financially.
Ms Grady was asked during cross-examination why she did not tell the police about the alleged physical assaults or apply for an intervention order in 2009 or 2010. She says that the day following an assault, Mr Chilcott would apologise and that she would forgive him because they lived together and she did not want any trouble.
During cross-examination Ms Grady agreed that she did not go to the police and make a complaint and did not seek an intervention order until October 2013. I must stress that the fact that a person alleging family violence does not make a contemporaneous complaint to 3rd parties is not indicative at all of the violence not having occurred. Indeed that type of questioning misunderstands the very nature of family violence in this regard. I refer to the courts Family Violence Best Practice Principles.
In the context of this case the allegations Ms Grady makes does not advance matters as she is not seeking an additional adjustment based on the principles set out by the Full Court in Kennon and Kennon (1997) FLC 92-757.
Ms Grady alleges that Mr Chilcott is an alcoholic and a gambler. She says these became significant problems three years into their relationship. She alleges that he drank most days and became aggressive and was physically, emotionally and financially abusive. Mr Chilcott denied having a drinking problem and vehemently denied drinking methylated spirits as alleged by Ms Grady. He said he has plenty of money to buy alcohol if he wanted it and there was a bottle shop near his home. I prefer his evidence on this point.
Ms Grady states that Mr Chilcott did not have a credit card and so would use hers. She alleges he would take her credit cards without her knowledge and use them to gamble. She says at paragraph 29 of her trial affidavit that at one stage he gambled every night after work and insisted that she accompany him. This is inconsistent with her evidence at paragraph 24 of her trial affidavit that she would work afternoon shift, from 2:30pm to 10:30pm and that they would go out on Tuesday nights as this was her day off. My impression is that this is somewhat exaggerated. I also formed the impression that Mr Chilcott downplayed this.
Mr Chilcott concedes that he would borrow cash from Ms Grady’s credit cards to play the poker machines. He said it was convenient for him to do this at the venues they attended and he always paid her back in cash the next day. Ms Grady says he would not always pay back the money immediately and she would have to ask him.
In her trial affidavit Ms Grady complains that her credit card debt rose because of Mr Chilcott’s insistence on borrowing money and not paying it back. I am not satisfied that there is evidence to support this. Counsel put to Ms Grady that she did not produce her credit card statements to show the alleged $50,000 debt which she says was because of Mr Chilcott using her card for cash advances to gamble. She said she has produced the statements but agreed that she cannot point to each transaction and refer to what was Mr Chilcott’s. He then suggested to her that her credit card statements do not support her allegation.
He says he enjoys playing the pokies twice a week but is not addicted. It is his hobby and he is able to support himself from his drawings. Gambling is not illegal and gambling does not automatically amount to waste in the sense referred to in cases such as Kowaliw and Kowaliw (1981) FLC 91-092.
Mr Chilcott says he regularly borrows money from friends to play poker machines and repays them. Mr B says that Mr Chilcott often borrowed money from friends including him because he did not use ATMs and did not have a credit card and that he would pay it back within 24 hours. He confirmed that he did some work for Mr Chilcott and favours for him and that he would give Mr Chilcott receipts for petrol he had bought and he would give Mr Chilcott the invoices. When Mr Chilcott would borrow money from him Mr Chilcott would pay him back in cash within a day or two.
Ms Grady argues that Mr Chilcott’s gambling amounts to significant wastage which needs to be taken into account. I do not accept this in the circumstances of this case. It is clear that Mr Chilcott, with some assistance from his family, built up significant assets prior to meeting Ms Grady. He had a comfortable lifestyle and successful business. The fact that he liked to gamble and regularly spent a significant portion of his discretionary income on gambling does not automatically amount to waste. There is no evidence that he did not meet his other financial commitments. I refer to the comments of Lindenmayer and Finn JJ in De Angelis and De Angelis (1999) 30 Fam LR 304 at paragraph 76 where they observed that for some people gambling is a form of entertainment. People are entitled to spend money on various forms of entertainment. Each case will turn on its own facts.
The asset pool
Prior to the relationship Mr Chilcott had legal and equitable interests in the properties at Property B1, Property B2, Property B3. The current estimated value of those properties is $2,900,000.
The property at Property A, which Mr Chilcott bought shortly before he and Ms Grady separated is estimated to have a current value of $800,000. It is subject to a mortgage of approximately $400,000, leaving equity of $400,000.
Ms Grady has her legal and equitable interests in her two properties in Country E which she estimates to have equity of approximately AUD $71,500.
Ms Grady has approximately $70,000 in superannuation entitlements. Mr Chilcott does not have any superannuation.
Both parties also depose to having significant debts. Ms Grady says she has $43,000 in credit card debts. I do not know what period this relates to noting that the parties have been separated since September 2013.
Mr Chilcott annexes various loan agreements to his affidavits for loans he has taken out with various friends and family post separation.
Section 90SF factors
Mr Chilcott’s Company E business is no longer operating. Ms Grady’s counsel submitted that either Mr Chilcott deliberately ran the business down after separation or neglected it after separation. There is no evidence to suggest he deliberately ran down a business he ran successfully for many years. I accept that the discovery of the theft would have had an impact on cash flow. The criminal proceedings and the drawn out nature of those and these proceedings have had a negative impact on both parties. I do not accept the allegations made by Ms Grady that Mr Chilcott can be blamed for the criminal proceedings. The police took those proceedings and Ms Grady pled guilty to significant criminal charges with the benefit of legal advice.
Both parties refer to having health issues but neither provide admissible evidence about this.
Mr Chilcott is not working. Mr Chilcott says he couldn’t keep on with his business after the money was stolen and he did not have the cash flow. He relies on rental income to support himself.
Ms Grady says that she lost her job after being charged. She does some casual work. There no evidence before the court to suggest that she will not be able to gain employment in the future. In fact her counsel refers to the likelihood that she will be offered a full time job after she finishes her community corrections placement. She has many more working years left than Mr Chilcott.
Ms Grady is 44. Mr Chilcott is 58. He had worked in his own businesses all his adult life.
Mr Chilcott is a stronger financial position than Ms Grady. He had a significant amount of assets before he met Ms Grady.
Both have incurred significant legal fees for these proceedings and the criminal proceedings.
Conclusion with respect to the length and nature of Ms Grady and Mr Chilcott’s relationship
It is not unusual in these types of disputes for some of the indicia referred to in s.4AA to point to the existence of a de facto relationship and others to not. There is no single factor that is determinative and I have weighed up all of the evidence in reaching the conclusions that I have.
It is important to record that Mr Chilcott conceded that the de facto relationship existed in consent orders entered into on 22 February 2017. Despite this, even the written submissions of his counsel at various times inconsistently refer to there not being a de facto relationship at all. Given the concession, made with the benefit of legal advice, he cannot resile from that position, just as Ms Grady cannot resile from her guilty plea for theft.
The point made by Ms Grady’s counsel about Mr Chilcott not pointing to the difference in the nature of the relationship pre and post 2008 is a significant one.
I find on the balance of probabilities that Ms Grady continued to live with Mr Chilcott from late 2005 until they separated in September 2013. If she were living with Mr D it would make no sense for her mail to be sent to Mr Chilcott’s home and for his address to be on her driver’s licence. It also makes no sense for her to have many belongings at Mr Chilcott’s home and also her dog. It is plausible that the lease for the Suburb R property was in Ms Grady’s name because her son did not have a rental history in Australia. I accept she spent time there with her son and stayed there overnight on occasions but this was not her full time residence.
Ms Grady and Mr Chilcott had a sexual relationship. For the most part they kept their finances separate. Ms Grady was able to use her income to purchase a second property in Country E. She did not pay for any of the expenses on the properties owned by Mr Chilcott. She did buy groceries. They did not acquire any property together. Ms Grady did not put any funds into Property A Mr Chilcott purchased late in the relationship.
Turning to the issue of the degree of a mutual commitment to a shared life I do not accept Mr Chilcott’s evidence that they were just friends. Whilst I accept she was not the only one he would borrow money from to play the pokies as he did not use credit cards or ATMs, he still deposited significant sums of money into her account. I am not satisfied on the evidence that he did propose marriage. They did spend time with each other’s families and attended significant family events.
They did not register their relationship.
There is no evidence that Ms Grady had any involvement with Mr Chilcott’s adult children. Mr Chilcott did provide Ms Grady’s son Mr D a place to stay for the first few months after he arrived in Australia.
With respect to the public aspects and reputation of their relationship I place some significance on the evidence of Ms F and Ms C Chilcott which is consistent with Ms Grady and Mr Chilcott holding themselves out as being in a relationship. There is also Mr Chilcott’s references to Ms Grady as his partner to the police and during the committal proceedings as well as his reference supporting Mr D Grady visiting Australia.
Considering the whole of the evidence I am satisfied that the parties were in a de facto relationship from late 2005 until September 2013.
Conclusion with respect to whether or not there should be any adjustment of the parties’ property interests
This was de facto relationship of some 7 years duration. There are no children of the relationship. Mr Chilcott made significant initial contributions. The assets he had at the beginning of the relationship form a significant portion of the pool today.
I am not satisfied that Ms Grady made any significant financial contributions to the relationship. She bought groceries and lent Mr Chilcott money when he asked for gambling. I am not satisfied that he did not pay those funds back shortly afterwards. My impression is that he is somewhat old fashioned, preferring to go to bank branches and write cheques rather than use ATMS and credit cards.
Ms Grady did not have to pay rent whilst living with Mr Chilcott and was able to keep her income from her jobs in her separate account. She was able to purchase a second property in Country E. She worked hard.
I am satisfied that she did more of the domestic chores than Mr Chilcott.
I am not satisfied that she helped in Mr Chilcott’s business to the extent she claimed. Whilst she did enter data information for Mr Chilcott she has also been found guilty of stealing from him. I note that in her case outlines she refers to working in the business without pay from 2004 until 2009. The period for which she was charged with theft relate to the period from 2009 to 2013.
The parties separated some 6 years ago. There is no suggestion that Ms Grady has made any post separation contributions to the assets in Mr Chilcott’s name post separation.
Mr Chilcott is in a stronger financial position than Ms Grady although it is not as strong as it was before and during the relationship when he ran his business. The orders for compensation made by the (omitted court) remain outstanding.
I need to consider whether it is just and equitable to make any adjustment of the parties’ legal and equitable interests. It does automatically flow that it is just and equitable to make such orders even after finding a seven year relationship. Each case must turn on its own facts.
Mr Chilcott made the overwhelming financial contributions to the relationship. Ms Grady bought groceries and lent Mr Chilcott money when they went out, which he repaid. There is no evidence that she made any other financial contribution to the properties. She was able to keep her earning separate and purchase a second property in Country E. She will keep these properties. Mr Chilcott will keep the properties he owned prior to the relationship and Property A which he purchased without financial assistance from Ms Grady.
Taking into account the whole of the circumstances of the relationship I am not satisfied that it is just and equitable to make an order adjusting the parties’ property interests.
I certify that the preceding one hundred and sixty-five (165) paragraphs are a true copy of the reasons for judgment of Judge Harland
Associate:
Date: 5 August 2019
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