Harriott & Arena
[2016] FamCAFC 69
•6 May 2016
FAMILY COURT OF AUSTRALIA
| HARRIOTT & ARENA | [2016] FamCAFC 69 |
| FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – De facto – Appeal against an order dismissing the appellant’s application for property settlement on the basis that the geographical requirement in s 90SK of the Family Law Act 1975 (Cth) was not met – Where the appellant applied proceeds from the sale of a house in New South Wales to the purchase of a property and a business in Vanuatu – The trial judge misdirected himself in finding that contributions made prior to the commencement of the relationship were not “in relation to” the relationship – “Substantial contributions” were made in New South Wales – Appeal allowed – Costs certificates granted. |
| Australian Constitution – s 51(xxxvii) Family Law Act 1975 (Cth) – s 4(1), s 4AA, s 85A, s 90SK, s 90SM Federal Proceedings (Costs) Act 1981 (Cth) |
| Beneke v Beneke (1996) FLC 92-698 Delamarre & Asprey (2014) FLC 93-616 Edwards v Noble (1971) 125 CLR 296 Kennon v Spry (2008) 238 CLR 366 Lee v Hutton (2013) 50 Fam LR 322 Lozanov & Lozanov (unreported, Full Court of the Family Court of Australia, Fogarty, Baker & McCall JJ, 8 June 1994) Lynam v Director-General of Social Security (1983) 52 ALR 128 Oakley and Roche [2009] FCWA 132 Redmond & Mullins [2015] FamCAFC 69 Thorburn and Oswald [2007] FCWA 43 Tillmans Butcheries Pty Ltd v The Australasian Meat Industry Employees’ Union (1979) 27 ALR 367 V and K [2005] FCWA 80 Webb & Douglas [2012] FMCAfam 1049 |
| APPELLANT: | Ms Harriott |
| RESPONDENT: | Mr Arena |
| FILE NUMBER: | SYC | 1615 | of | 2013 |
| APPEAL NUMBER: | EA | 162 | of | 2013 |
| DATE DELIVERED: | 6 May 2016 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Thackray, Ryan & Murphy JJ |
| HEARING DATE: | 28 July 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 16 October 2013 |
| LOWER COURT MNC: | [2013] FCCA 1604 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Givney |
| SOLICITOR FOR THE APPELLANT: | Williams The Law Firm |
| COUNSEL FOR THE RESPONDENT: | Mr Blackah |
| SOLICITOR FOR THE RESPONDENT: | Gibsons Lawyers |
Orders
The appeal be allowed.
The order made by Judge Scarlett on 16 October 2013 be set aside.
The proceedings be remitted to the Federal Circuit Court of Australia for directions in relation to the future conduct of the proceedings.
There be no order as to costs.
The court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the court, it would be appropriate for the Attorney General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the appeal.
The court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the court, it would be appropriate for the Attorney General to authorise a payment under that Act to the respondent in respect of the costs incurred by him in relation to the appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Harriott & Arena has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 162 of 2013
File Number: SYC 1615 of 2013
| Ms Harriott |
Appellant
And
| Mr Arena |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Harriott (“the appellant”) and Mr Arena (“the respondent”) lived in a de facto relationship in Vanuatu from 2000 to 2011.
The appellant commenced property proceedings in the Federal Circuit Court in March 2013. On 16 October 2013, Judge Scarlett dismissed the application because the appellant had not established she had made “substantial contributions in relation to the de facto relationship” in New South Wales.
The appellant appeals against that decision.
Background
The focus of the appeal was on the contributions to property made by the appellant, the place where those contributions were made, and whether they pre-dated the commencement of the de facto relationship.
The following are the facts most pertinent to those issues.
The parties met in Sydney in April 1999. The appellant was then living in Sydney and the respondent was visiting from Vanuatu, where he lived.
During 1999, the parties spent periods in the same residence, both in New South Wales and Vanuatu. In January 2000, they commenced living together full-time in Vanuatu and remained there until they separated in 2011.
Prior to moving to Vanuatu, the appellant sold her home in New South Wales for $240,000, from which she received $80,000 net. The respondent also had a property in New South Wales, which he still owns.
The appellant did not resign from her employment in Sydney when she moved to Vanuatu but instead kept the job “on hold”, before resigning three years later.
In order to accommodate her proposed move to Vanuatu, the appellant applied to vary parenting orders relating to her child from another relationship. The matter was resolved on a basis that greatly reduced her time with the child.
After the parties had been living together in Vanuatu for about a year, they acquired a business the respondent had been managing. The appellant paid $30,000 from the proceeds of sale of her home to purchase her half share.
In 2003, the parties purchased a home in Vanuatu for $120,000. The appellant paid $30,000 of the cost, using portion of the proceeds of sale of her home in New South Wales. The balance was funded by a mortgage obtained jointly.
The parties acquired other property in Vanuatu before the appellant returned to Sydney in 2011. The appellant claimed that the $20,000 remaining from the sale of her home “diminished” during the time she was away.
The period of the de facto relationship
The appellant asserted in her Initiating Application that the parties commenced living together in January 2000, but later claimed that the de facto relationship commenced in August 1999.
In support of this proposition, the appellant gave evidence of the parties living together for four short periods between August 1999 and December 1999. She also deposed to her commitment to the relationship when the parties were not together in 1999, which was demonstrated by daily communication in which the parties discussed their future and the appellant advised the respondent that she had put her house on the market in readiness for her move to Vanuatu.
The trial judge also had before him an affidavit sworn by the appellant on 29 November 1999 in support of her application to vary the parenting orders. In this document, the appellant deposed that:
·she had formed a “close relationship” with the respondent and expected to be living with him in Vanuatu “for at least the next twelve months and probably the next three years”;
·she and the respondent were “in a stable and enduring relationship with the prospect of it becoming permanent”;
·she had sold her home and proposed investing the proceeds in Australia for six to 12 months; and
·she intended spending time with the respondent and his family in Australia from 17 December 1999 until they travelled to Vanuatu on 7 January 2000.
The trial judge characterised the argument before him as being for “summary dismissal” of the application, and therefore found that the appellant’s evidence ought to be “taken at its highest”. Both counsel conceded that this was not an accurate description of the nature of the hearing; however, nothing turns on that.
After considering the definition of a “de facto relationship” in the Family Law Act 1975 (Cth) (“the Act”), his Honour found there was evidence of the existence of a de facto relationship, commencing from 7 January 2000. His Honour also found that the appellant’s own evidence did not support her contention that the parties commenced a de facto relationship in August 1999. He concluded that the evidence relating to the period from August 1999 until January 2000 only described “the parties exchanging declarations of love and expressing a desire to live together in a relationship in the near future”, and steps taken by the appellant “to get ready to enter into this relationship with a view to its being a permanent relationship”.
We gave leave to the appellant to amend one of her grounds of appeal to more clearly articulate her complaint that the trial judge erred in his decision concerning the date the de facto relationship commenced. The amended ground asserted that there was “compelling evidence” that the relationship had commenced in August 1999.
The “compelling evidence” was essentially that which we have summarised relating to the periods of time the parties lived together in 1999; their regular communication when they were not together; the sale of the appellant’s home; giving up shared care of her child; and taking leave of absence from her work.
For reasons we will explain later, we do not consider anything turns on the date the relationship commenced. However, lest we be in error in so concluding, we record that we consider the finding made by the trial judge was well open to him.
In arriving at his decision, his Honour recited s 4AA(2) of the Act, which he noted “provides a guide to working out” if a person is in a “de facto relationship” within the meaning of s 4AA(1). His Honour also recited the evidence relevant to the date the relationship commenced. We accept that his reasons on this topic were brief; however, as was pointed out in Delamarre&Asprey (2014) FLC 93-616 at [18], there is no obligation on a trial judge
to carry out a specific evaluation and/or weighing up of the factors in favour of and against a finding of a de facto relationship. Indeed, s 4AA(3) may well suggest to the contrary.
Section 4AA(3), which was referred to in this citation, provides that:
No particular finding in relation to any circumstances is to be regarded as necessary in deciding whether the persons have a de facto relationship.
Equally importantly, s 4AA(4) provides that:
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.
These two subsections provide latitude to a judge in determining whether a de facto relationship exists, and they resonate with what was said by Fitzgerald J in Lynam v Director-General of Social Security (1983) 52 ALR 128 at 131 (emphasis added):
Each element of a relationship draws its colour and significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.
The complaint advanced on appeal, when boiled down, is nothing more than that the trial judge should have arrived at a different finding concerning the date on which the relationship commenced. The failure to satisfy us that the finding was not reasonably open is fatal to the complaint: Edwards v Noble (1971) 125 CLR 296 at 304.
Legislative context
Before discussing the remainder of the complaints, which concern the treatment of contributions, it is important to consider the legislative context.
The power of the Commonwealth to legislate in respect of the property of parties to a de facto relationship relies on the referral of powers from “participating jurisdictions” pursuant to paragraph 51(xxxvii) of the Constitution, which permits the Commonwealth “to make laws … with respect to … matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States”.
New South Wales is a participating jurisdiction, as that State has referred to the Commonwealth Parliament “financial matters relating to the parties to de facto relationships arising out of the breakdown of those de facto relationships”. Acting on this, and similar referrals made by other states, the Act now contains provisions, previously lacking, permitting courts exercising jurisdiction under the Act to deal with de facto financial causes.
Subsection 4(1) defines “de facto financial cause” as meaning, inter alia, “proceedings between the parties to a de facto relationship with respect to the distribution, after the breakdown of the de facto relationship, of the property of the parties or either of them”.
This largely corresponds with the definition of “matrimonial cause”, which deals with proceedings between married couples. The only point of difference in cases involving couples who never married is that the jurisdiction is confined to the “distribution” of property after the “breakdown” of the de facto relationship.
The power of a court to make an order altering the property interests of parties to a de facto relationship is found in s 90SM, which relevantly provides:
(1)In property settlement proceedings after the breakdown of a de facto relationship, the court may make such order as it considers appropriate:
(a)in the case of proceedings with respect to the property of the parties to the de facto relationship or either of them – altering the interests of the parties to the de facto relationship in the property; or
…
…
(3)The Court must 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.
(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court must take into account:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i)to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii)otherwise in relation to any of that last‑mentioned property;
whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i)to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii)otherwise in relation to any of that last‑mentioned property;
whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(c)the contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship and any children of the de facto relationship, including any contribution made in the capacity of homemaker or parent; and…
The power to make orders altering the property interests of parties to a de facto relationship is dependent upon the court being satisfied of the existence of matters in s 90SK(1) of the Act. This provision is of critical importance in this appeal, and we have highlighted the phrase that is of particular relevance:
(1)A court may make … an order under section 90SM, in relation to a de facto relationship only if the court is satisfied:
(a)that either or both of parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the application for the … order was made … ; and
(b)that either:
(i)both parties to the de facto relationship were ordinarily resident during at least a third of the de facto relationship; or
(ii)the applicant for the declaration or order made substantial contributions in relation to the de facto relationship, of a kind mentioned in paragraph 90SM(4)(a),(b) or (c);
in one or more States or Territories that are participating jurisdictions …
or that the alternative condition in subsection (1A) is met.
The alternative condition set out in s 90SK(1A) is that “the parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the relationship broke down”.
It is common ground that s 90SK(1)(a) was satisfied and that s 90SK(1)(b)(i) and s 90SK(1A) were not. Accordingly, for the court to have jurisdiction, the appellant needed to have made “substantial contributions in relation to the de facto relationship of a kind mentioned in paragraph 90SM(4)(a), (b) or (c)” in New South Wales or another “participating jurisdiction”.
The trial judge’s reasons
The trial judge gave these short reasons for concluding that the appellant had not met what the Act calls the “geographical requirement” (footnote omitted):
47.The evidence shows financial contributions made by the Applicant towards the purchase of the [business], the purchase of the parties’ home in Vanuatu, and contributions to meet the parties’ various expenses from time to time. However, these contributions were all made in Vanuatu.
48.I am not satisfied that those contributions can be characterised as having taken place in New South Wales because the funds used to make those contributions were held in various accounts with [a] branch of the Commonwealth Bank of Australia. The money was paid on each occasion in Vanuatu and it is in Vanuatu that the contributions were made.
49.The steps taken by the Applicant in Australia, such as selling her home, taking leave of absence from her job, and rearranging the parenting arrangements relating to her child of her earlier marriage, were all taken before the de facto relationship commenced.
The appeal
The nub of the appeal appears in Ground 2, which asserts that:
The trial Judge failed to appreciate that the contributions at the commencement of the relationship (whenever it commenced) were made in New South Wales…
The associated complaint is that his Honour erred at [49] in concluding that anything occurring prior to the start of the relationship could not be considered in determining whether the appellant made “substantial contributions in relation to the … relationship”.
In considering these complaints, we record that counsel for the respondent properly conceded before us that the contributions made from the proceeds of sale of the appellant’s property, were “substantial”, but he maintained that the contributions had been made in Vanuatu where the funds were used, rather than in New South Wales where the funds were accumulated.
The meaning of “in relation to the de facto relationship”
We respectfully consider that his Honour misdirected himself at [49] of his reasons, because the question to be answered was not whether contributions were made during the relationship but rather whether they were contributions in relation to the relationship. But what does “in relation to” mean?
The respondent argued on appeal that a contribution could only be “in relation to” a relationship if the relationship was in existence when the contribution was made. No authority was cited in support of this proposition. Indeed, neither counsel referred us to any authorities relating to the meaning of “in relation to”, notwithstanding that the law reports abound with them. We observe that the trial judge was also not assisted by any reference to such authorities.
In Kennon v Spry (2008) 238 CLR 366 at [217], citing well-established authorities, Kiefel J said:
The expression “in relation to” is of wide and general import and should not be read down in the absence of some compelling reason for doing so … the words are prima facie broad and designed to catch things which have a sufficient nexus to the subject.
Whether a “sufficient nexus” exists between two matters in a statute that are joined by the expression “in relation to” will depend upon the statutory context. As Kiefel J pointed out at [218], this context “includes the existing state of the law and the problem that the statute was intended to remedy”, and requires consideration of the language and purpose of the legislation.
Although there are many provisions in the Act containing the phrase “in relation to”, in our view, the way in which it is employed in s 85A arguably comes closest to the way it is used in s 90SK(1), since both provisions are directed to the alteration of property interests and both are aimed at identifying a connection between an act or thing and a relationship.
Section 85A was the provision discussed by Kiefel J in Kennon v Spry. Subsection (1) provides (emphasis added):
The court may, in proceedings under this Act, make such order as the court considers just and equitable with respect to the application, for the benefit of all or any of the parties to, and the children of, the marriage, of the whole or part of property dealt with by ante-nuptial or post-nuptial settlements made in relation to the marriage.
In construing the provision, Kiefel J made the following observations, which we consider pertinent to the construction of s 90SK(1), given that the process in resolution of disputes between married couples is essentially replicated by that prescribed for parties to a de facto relationship (footnotes omitted):
219.… An important aspect of the Act, so far as concerns settlements of property, is that it requires the Court to make orders respecting property by reference to the contributions of the parties to the marriage to property which is accumulated in the course of the marriage …
…
221.The Act … contains express and detailed provisions for the assessment of contribution to property in s 79(4). It requires the Court, in proceedings with respect to the settlement of property, to take into account the contributions, financial and otherwise, direct and indirect, which a party has made to the acquisition, conservation or improvement of the property, amongst other matters. The Court is not to make an order altering the interests of the parties in their property unless satisfied that it is just and equitable to do so.
…
223.Of particular importance for present purposes is the requirement that the Court consider the parties’ contributions in exercising its power under s 85A(1). Section 85A(2) requires that the matters referred to in s 79(4) be taken into account “so far as they are relevant” in the Court’s consideration as to what (if any) order should be made under sub-s (1). It must be taken as intended that the Court consider any contributions, direct or indirect, to the property the subject of a nuptial settlement.
224.The contributions of the parties to the marriage, direct or indirect, are central to the means by which the Court is to determine proceedings with respect to property. Reference to those contributions serves both to identify the property in question and to provide one means of assessment for the purpose of decision … The purpose of s 85A is to ensure that, since the previous arrangements for the property cannot continue, the property is applied equitably to the benefit of the parties, or the children. …
…
227.… The essential requirement of the section is that there be a sufficient association between the property the subject of a settlement and the marriage the subject of proceedings. ...
The legislation by which the de facto property provisions were introduced into the Act in 2009 was designed to provide to unmarried couples the benefit of a property regime that had been available to married people since 1976. Importantly, it had long been established in that regime that regard should be had to all contributions made to the property, including not only those made prior to the marriage, but also those made prior to the commencement of any pre-marriage cohabitation: Beneke v Beneke (1996) FLC 92-698.
The Full Court did say in Beneke that it felt there should be some “causal or at least temporal connection” between the contribution and the marriage, although it noted that this was of “no significance” in that case. The Full Court also observed that in Lozanov & Lozanov (unreported, Full Court of the Family Court of Australia, Fogarty, Baker and McCall JJ, 8 June 1994), their Honours had concluded that “contributions made by parties prior to the marriage, whether they were cohabitating or not, can be treated as contributions under s 79 provided the parties subsequently marry and the matters have a sufficiently relevant connexion with the marriage”. For a discussion of whether such a connection is strictly necessary, see Anthony Dickey, ‘Pre-nuptial contributions to property’ (2013) 87 Australian Law Journal 21.
We find no reason to read down the wide and general terms of the expression “in relation to”, and we would therefore not exclude from consideration any contributions made prior to the commencement of the de facto relationship, provided there is a “sufficient nexus” or “proper association” between the contributions and the relationship.
The property available for distribution in disputes between parties who were in a de facto relationship is not just property that is jointly owned, or which was acquired during the course of the relationship – it is all of “the property of the parties … or either of them”. Accordingly, we consider that any contributions made to that property, whether made before or after the relationship commenced, are properly characterised as having been made “in relation to” the relationship, since there is a clear nexus or association between the contributions and the relationship.
Were contributions of the requisite kind made in New South Wales?
Counsel for the appellant submitted that the appellant had “literally turned her life upside-down to enable the parties living circumstances in Vanuatu and financial security. All these contributions were made within the jurisdiction”.
Counsel emphasised that the appellant “took steps to surrender her career, changed the residency of her son, applied to a Court and sold her home”. It was submitted that these were contributions “to the welfare of the family of the parties and direct and indirect financial contributions”.
Additionally, or in the alternative, it was argued that the appellant had “made an initial contribution of the proceeds of sale of her home” and that these proceeds “were accumulated in the jurisdiction”. It was submitted that the trial judge’s finding that the contributions were made in Vanuatu was “misconceived [as] the assets were in the jurisdiction at the commencement of cohabitation and were maintained in the jurisdiction after cohabitation commenced”.
Counsel for the respondent accepted that if the parties had married on 7 January 2000, as distinct from commencing a de facto relationship, the mere ownership of property by the appellant in New South Wales would properly be treated as an “initial contribution”. However, he argued that the meaning of “contribution” in s 90SM(4) is different to its meaning in s 90SK(1)(b)(ii). Save for referring to “policy considerations”, counsel did not explain why the same word ought to be given a different meaning in two sections appearing in the same Part of the Act. However, any prospect of them having different meaning overlooks the fact that s 90SK(1)(b)(ii) states that the contributions to be considered for the purpose of that provision are those mentioned in s 90SM(4).
Counsel for the respondent also argued that the appellant had not “contributed” the proceeds of sale of her home because she initially “kept it”. We consider that the fallacy in this argument is that it treats “contributed” as a synonym of “applied” when there is no mandate to do so. In our view, the proceeds of sale of the home were “contributed” at the commencement of the de facto relationship, just as counsel conceded they would be regarded as an “initial contribution” in the case of a married couple. The proceeds were held in New South Wales and hence we consider the conclusion inescapable that the proceeds were “contributed” in that State. The fact that the proceeds were later used to acquire property in Vanuatu is immaterial.
It seems to us that the corollary of the proposition advanced by counsel for the respondent is that the property owned by the respondent in New South Wales at the outset of the relationship was never “contributed” since he “kept it”. Yet that property is available for distribution in proceedings under the Act, as it forms part of the “property of the parties … or either of them”. It clearly cannot be right that the property is available for distribution, but the respondent’s ownership of that property cannot be regarded as a contribution.
The fact that the appellant’s property no longer exists, while the respondent still holds his, is of no consequence, since the legislation provides that a contribution is to be taken into account whether or not the property subsequently “ceased to be the property of the parties … or either of them”.
For these reasons, we consider that a contribution of the requisite kind was made in New South Wales. If it be necessary that there is some causal or temporal connection between the contribution and the relationship, the fact that the appellant sold her home because she was about to embark on the relationship clearly provides that connection.
Were the proceeds of sale of the appellant’s home “substantial”?
If the appellant’s contribution of the net proceeds of her home constituted a “substantial” contribution, it will be unnecessary for us to determine the somewhat more vexed question of whether the actions taken by the appellant in relation to her career and her child should be characterised as “contributions”.
The trial judge made no finding as to whether the appellant’s contributions were “substantial”. However, he did record that the appellant relied on the decision of Altobelli FM (as his Honour then was) in Webb & Douglas [2012] FMCAfam 1049 to support the assertion that “substantial” means “something more than usual or ordinary”, this being the view of Holden CJ in V and K [2005] FCWA 80 when dealing with equivalent legislation. (Holden CJ’s formulation has been followed in other cases, some of which were cited by Watts J in Lee v Hutton (2013) 50 Fam LR 322 at [180]–[182]).
Rather than agreeing with Holden CJ, it seems to us that Altobelli FM disagreed with him, as appears from this extract from Webb & Douglas (original emphasis):
21.The cases therefore seem to suggest that before a contribution can be substantial, it must be more than usual or ordinary. This is a vague and subjective standard. In the diversity of relationships that present before courts exercising jurisdiction under the Family Law Act how is “usual” or “ordinary” to be determined other than by reference to the facts of the case before the court at the time? How could a judicial officer make the comparisons that need to be made by using this standard without referring to extrinsic evidence ie. the judicial officer’s own perception of contribution in other cases?
22. By contrast it is interesting to note that FM Coates in Miller & Trent referred to dictionary definitions of “substantial” at paragraph 59 of his judgment. He noted, for example, that the Macquarie Encyclopaedic Dictionary defined substantial as “an ample or considerable amount as well as something having real worth or value”. His Honour also referred to the Concise Oxford Dictionary meaning of “having real importance or value and to a considerable amount”. Federal Magistrate Coates also referred to a Family Provision Act (1982) (NSW) decision in Wentworth & Wentworth (1995) 37 NSWLR 703 where the court held that substantial “means not illusory, something considerable or large”.
23. Whereas the V & K and Miller & Trent definition of substantial invite comparison to other cases, the dictionary definitions invite a more contextual analysis. In other words the question is whether the contribution is substantial in the context of the case being determined, and not by reference to other cases.
While Altobelli FM erroneously assumed in Webb & Douglas that a court could have jurisdiction to deal with a de facto property dispute where it was common ground that neither s 90SK(1)(a) or s 90SK(1A) had been satisfied, his Honour’s discussion draws attention to deficiencies in the “something more than usual or ordinary” formulation. Noting that the matter was not the subject of proper argument, as presently advised we are not attracted to the “something more than usual or ordinary” definition, since it would, for example, seem to exclude parent and homemaker contributions in a lengthy marriage. This could not be right, as Holden CJ implicitly acknowledged at [20]–[21] in V and K. We would therefore be inclined to treat anything said in V and K as being confined to its own unusual facts, which involved two self-represented litigants, and where the issue was whether “substantial contributions” had been made in the 22 days the parties spent living in Western Australia.
To the best of our knowledge, the meaning of “substantial contributions” has not been the subject of careful consideration by this Full Court, although the matter was touched on in Redmond & Mullins [2015] FamCAFC 69, where V and K was cited. However, the meaning of “substantial” has been the subject of much discussion by other courts. Our review of those authorities indicates support for these observations of Deane J in Tillmans Butcheries Pty Ltd v The Australasian Meat Industry Employees’ Union (1979) 27 ALR 367 at 382:
The word “substantial” is not only susceptible of ambiguity: it is a word calculated to conceal a lack of precision. In the phrase “substantial loss or damage”, it can, in an appropriate context, mean real or of substance as distinct from ephemeral or nominal. It can also mean large, weighty or big. It can be used in a relative sense or can indicate an absolute significance, quantity or size. The difficulties and uncertainties which the use of the word is liable to cause are well illustrated by the guidance given by Viscount Simon in Palser v Grinling ( … [1948] AC 291 at 317) where, after holding that, in the context there under consideration, the meaning of the word was equivalent to “considerable, solid or big”, he said: “Applying the word in this sense, it must be left to the discretion of the judge of fact to decide as best he can according to the circumstances of each case…
Clearly the “substantial contributions” test is a subjective one. Any effort to elucidate its meaning by use of other words or phrases will simply replace one subjective test with another. It will remain a matter of impression whether the contributions are considered to be “substantial”. While recognising that the test is subjective, we are nevertheless inclined to agree with Thackray J, who said in Thorburn and Oswald [2007] FCWA 43 at [54] that a trial judge
would need to interpret the word “substantial” in the context of the financial position of the parties. What might appear to be a “substantial contribution” for people of limited financial resources, might not be substantial in a case involving very wealthy parties.
To like effect, see Oakley and Roche [2009] FCWA 132 at [15] per Crisford J.
As noted, the trial judge made no finding as to whether the appellant’s submissions were “substantial”. We consider that the contribution of $80,000 from the sale of the appellant’s home was “substantial”, and we note that the respondent effectively conceded as much, since his counsel accepted that the application of those funds in Vanuatu represented a “substantial” contribution. That being the case, it is unnecessary for us to come to a concluded view about the other “contributions” upon which the appellant relied.
Outcome and costs
As substantial contributions were made in New South Wales by the appellant, the “geographical requirement” was satisfied. The appellant’s application for alteration of property interests should therefore not have been dismissed.
We intend to allow the appeal and set aside the order made by Judge Scarlett. As we have determined that the Federal Circuit Court had jurisdiction, we intend to remit the proceedings to that court for directions to be made in relation to the future conduct of the proceedings. We see no reason why Judge Scarlett should not continue to have the conduct of the matter, but that is an issue for the Federal Circuit Court to determine.
We were advised that the appellant would seek a costs certificate in the event that the appeal was allowed. The respondent also sought a costs certificate in that event. The appeal having been allowed on a matter of law, and there having been no application for an order for costs, we propose to make no order as to costs and grant costs certificates to both parties pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth).
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Ryan & Murphy JJ) delivered on 6 May 2016.
Associate:
Date: 6 May 2016
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