H v G

Case [2005] SASC 344

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

H v G

Judgment of The Full Court

(The Honourable Justice Sulan, The Honourable Justice White and The Honourable Justice Layton)

14 September 2005

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE

FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS - ADJUSTMENT OF PROPERTY INTERESTS - GENERALLY

Appeal by defendant against orders awarding the plaintiff a sum pursuant to the De Facto Relationships Act 1996 - whether just and equitable - consideration of legal principles in making orders for a divison of property - consideration of contributions to the relationship before and after separation - overall assessment of contributions and benefits - whether assessment should be calculated at the date of separation or the date of trial and whether to take into account "means and needs" of parties for the future - whether an error in the exercise of the judge's discretion - observations on submissions at trial differing from submissions on appeal - Held:  Appeal dismissed.

PROCEDURE - COSTS - APPEALS AS TO COSTS

FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS - ADJUSTMENT OF PROPERTY INTERESTS - GENERALLY

Cross-appeal by plaintiff - whether award was manifestly inadequate - whether trial judge erred in assessing financial contributions of the parties - whether judge erred in refusing to award costs on a solicitor and own client basis - consideration of a Calderbank letter and Rule 41.01 offer - Held:  Cross-appeal dismissed.

De Facto Relationships Act 1996 (SA) s 9, s 10, s 11, s 12; Limitations of Actions Act 1936 (SA) s 48; Family Law Act 1975 (Cth) s 79; Supreme Court Rules 1987 (SA) r 41.01; De Facto Relationships Act 1984 (NSW); Domestic Relationships Act 1994 (ACT), referred to.
ACCC v Australian Safeway Stores Pty Ltd (No 3) (2002) ATPR 41-901; Ah Toy v Registrar of Companies (NT) (1985) 10 FCR 280; Arnold v Dalton (2002) 84 SASR 482; Callaghan v Callaghan (No 2) (Unreported, Supreme Court of South Australia, Perry J, Jud. No S5562, 3 May 1996); Casley-Smith v Egans & Sons (1989) 148 LSJS 483; Chapman v Chapman & Holmes [1946] SASR 217; Cretazzo v Lombardi (1975) 13 SASR 4; De Winter v De Winter (1979) 23 ALR 211; Dwyer v Kaljo (1987) 11 Fam LR 785; Evans v Marmont (1997) 42 NSWLR 70; Ferris v Winslade (1998) 22 Fam LR 725; Gardner v Cleggs (1983) 2 All ER 398; Gleeson v Hammerton (No 2) [2004] SADC 153; Gronow v Gronow (1979) 144 CLR 513; Hogg v Roberts (2003) 87 SASR 248; House v The King (1936) 55 CLR 499; Anastasio & Anastasio (1981) FLC 91-093; Holmes & Holmes (1990) FLC 92-181; McTaggart & McTaggart (1988) FLC 91-920; Zappacosta & Zappacosta (1976) 26 FLR 412; Zyk & Zyk (1995) 19 Fam LR 797; Love v Chidley (2002) 219 LSJS 287; Mahon & Mahon (1982) FLC 91-242; Morris v McEwen [2005] SASC 284; National…

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AGLC
H v G [2005] SASC 344
Case
[2005] SASC 344
Decision Date

CaseChat Overview and Summary

The case of H v G involved an appeal by the defendant against the orders awarding the plaintiff a sum pursuant to the De Facto Relationships Act 1996. The primary dispute concerned whether the trial judge's assessment of the financial contributions and benefits of both parties was just and equitable. The court was tasked with examining the legal principles governing the division of property in de facto relationships, including the consideration of contributions made before and after separation, and whether the assessment should be calculated at the date of separation or trial. Additionally, the court considered whether the judge's discretion was exercised correctly and if the submissions at trial differed from those on appeal.

The court examined the submissions and figures presented to the trial judge by the defendant's counsel, which were heavily relied upon in the findings and conclusions. The trial judge accepted the defendant's figures for child support, school fees, and rent-free accommodation, among other contributions. However, the court noted that the submissions at trial differed from those on appeal, particularly regarding the rent-free residence of Hill Street. Despite the defendant's submissions that the plaintiff had benefited from the rent-free accommodation and he had to make alternative arrangements, the trial judge concluded that it was not an appropriate case for adjustment to account for notional rent.

The court held that the appeal was dismissed as there was no error in the exercise of the judge's discretion. The cross-appeal by the plaintiff was also dismissed, with the court finding that the award was not manifestly inadequate and that the trial judge did not err in assessing the financial contributions or in refusing to award costs on a solicitor and own client basis. The court considered the Calderbank letter and Rule 41.01 offer but found no grounds for altering the outcome.

In summary, the court upheld the trial judge's decision, finding that the property division was just and equitable, and no error was made in the exercise of discretion. The final orders of the court were to dismiss both the appeal and the cross-appeal, affirming the trial judge's assessment and property division.

Orders

Orders of the court

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Background

Background to the litigation

The hearing proceeded over two weeks and a detailed judgment of some 52 pages was delivered in which his Honour found that it was just and equitable that the defendant pay to the plaintiff the sum of $210,000 inclusive of interest pursuant to s 10 of the Act. His Honour refused the application for an extension of time within which to bring an action for damages pursuant to s 48 of the Limitation of Actions Act 1936. His Honour later made an order that the plaintiff have her costs on a party and party basis.The background facts Further facts will be addressed under particular grounds of appeal, but the basic facts are as follows. The plaintiff was born in 1957, and at the date of judgment was aged 47 years. She had previously been married for a period of four years. After having occupied various positions as a personal secretary and performing some radio and television work, she was working full-time with an advertising company at the time she met the defendant in January 1986. The defendant was born in 1954 and was aged 49 years at the date of judgment. He was an ophthalmologist when he first met the plaintiff. He was married but separated from his wife. In May 1986 the plaintiff and defendant commenced living together as husband and wife. They separated in June 1998. There is one child, T, of the relationship born in 1991.Housing arrangements The defendant first lived with the plaintiff in her Glenelg unit. In late 1988 the parties moved to rented accommodation, and in March 1991 they moved into Hill Street, which was purchased in February 1991 in joint names. At that time the plaintiff was pregnant with T. She resigned from her employment on 30 December 1990. A month after the parties moved into Hill Street, T was born. The parties continued to live at Hill Street until they separated in June 1998 when the defendant left the house. The defendant initially lived with his mother in Gawler, and commuted to his practice rooms. He later began living with Dr M, whom he eventually married in May 2002. In the meantime, the plaintiff and T continued to live in Hill Street until 16 August 2002 when the house was sold. The plaintiff then purchased a unit at Maylands where she and T lived until it was sold on 7 April 2003. They moved into rental accommodation; this remained their housing situation at the date of trial.Employment and income of the parties At the time when the parties met, the plaintiff earned a salary of $27,000 per annum and was provided with a company car. When the defendant commenced living with her at the Glenelg unit, for almost two years he contributed nothing towards the rent or other costs. By 1987 the plaintiff was promoted to the position of manager with a resulting increase in her salary to $38,000 per annum plus bonuses and a company car. In late 1987, it was agreed that the defendant would pay the rent and the plaintiff would pay the other outgoings. This arrangement continued when the parties moved to another rental property in Gover Street, North Adelaide, until the plaintiff resigned because of pregnancy. The plaintiff has not worked since December 1990 and has been financially supported by the defendant in various ways including after separation as discussed hereafter. Since July 2001 the plaintiff has received a sole parent benefit and as at the date of trial was receiving $635 per week comprising Supporting Parents Pension, Family Assistance payments and child support payments of $352 paid by the defendant.[2] [2] However, as a result of a re-assessment on 4 June 2003 to increase by $10,951 per annum with the effect that from 4 February 2003, the child support payments to T from the defendant increase by about $2,500 per month. The defendant applied to vary this reassessment. See [194].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

These are overarching grounds which contend an apparent failure by the Judge to exercise his power correctly so as to effect a just and equitable division of property. They will therefore be discussed after the other grounds have been addressed.Financial contributions after separationGrounds 1.1.2, 1.1.4, 1.8, 1.9, 1.10, 1.11, 1.12 and 1.20 These grounds complain in various ways that the Judge failed to give sufficient weight to the financial contributions made by the defendant to the plaintiff after the date of separation up until the date of trial. In particular it is asserted that insufficient regard was given by the Judge to the rent-free use and occupation of Hill Street as well as other significant payments including mortgage repayments. The trial Judge at [193] – [199] of the reasons for decision made detailed findings and concluded at [200]:In all the circumstances I do not consider this is an appropriate case in which there should be some adjustment to account for notional rent. The findings and conclusions of the Judge in itemising the contributions of the defendant were heavily reliant on the submissions and specific figures submitted to him by the defendant’s counsel. Further, as indicated earlier in these reasons, many of these figures raised on appeal differ from the manner in which the case was argued before the trial Judge. At trial, counsel for the defendant when addressing the topic of “Post-separation support” addressed the contribution of the defendant without naming a total figure. It was submitted that “it’s been huge. I believe that what I set out is accurate in terms of dollars”.[14][14] AB 1543. On the specific topic of the plaintiff’s rent-free residence of Hill Street, the following exchange occurred between counsel for the defendant and the Judge:His Honour: But it was on the basis, as I understand it, that it was intended that they stay in the house – that is, the plaintiff and the child – until there was some discussion about the sale of the house in ’91; the first discussion.Mr Howard:2000 was the first reference, and nothing came about for a long time. The parties were at odds. I can’t put it higher than that. The evidence doesn’t go any further than that. She has had that benefit and the defendant has not. I don’t want to overemphasise it, but she has had that benefit, and if your Honour says ‘Well, for the first couple of years, until issues arose in the middle of 2000, it should be excluded from consideration’, a reasonably easy calculation can be done from D86, I think.I simply say it is something that ought to be brought into account in the defendant’s favour, because she has had that benefit and he has had to make alternative arrangements. The reliance by the Judge on these submissions and the figures is illustrated by the findings made on the following items. The sum of $34,700 for child support (at [193]), $33,000 for school fees (at [193]), $43,610 for the Australian Scholarship Group is accepted, and accounted for as an asset of the defendant (at [193]),[15] and the defendant’s figure for rent-free accommodation as half of $117,450, namely, $58,725 is accepted (at [195]).[15] This matter is the subject of a separate ground of appeal addressed hereafter.