DOYLE CJ: Ms Roberts and Mr Hogg lived in a de facto relationship between late 1994 or early 1995 and about May 2000. They had two children of the relationship.
After they separated Ms Roberts brought proceedings in the District Court under the De Facto Relationships Act 1996 (SA) (“the Act”). Ms Roberts claimed an order that a house in joint names at Goolwa North (“the Goolwa house”) be sold, that the proceeds be divided (presumably equally), that a payment be made to her by way of maintenance for the children of the relationship, and a further payment referable to Mr Hogg’s occupation of the Goolwa house.
Mr Hogg opposed the claim. He claimed a payment from Ms Roberts referable to debts incurred in a business which he said they conducted as partners. He acted for himself.
After a hearing over some nine days, the Judge ordered that Mr Hogg pay to Ms Roberts the sum of $56,000.00, in return for which she was to transfer to him her interest in the Goolwa house. If he did not make the payment, the Goolwa house was to be sold and the amount of $56,000.00 was to be paid to Ms Roberts. The house was valued at $140,000.00.
Mr Hogg appealed. He represented himself on the appeal. His grounds of appeal and written submissions are detailed. In effect, he has re-argued the whole case.
The Act
The power of the District Court judge is to be found in s 10 (1) of the Act, which provides as follows:
“10 (1) On an application for the division of property, the court may make orders it considers necessary to divide the property of either or both the de facto partners between them in a way that is just and equitable.”
The approach to be taken to the exercise of that power is governed by s 11 (1), which provides:
“11 (1) In deciding whether to make an order for the division of property under this Part, and if so the terms of the order, the court –
(a) must consider the financial and non-financial contributions made directly or indirectly by or on behalf of the de facto partners to –
(i) the acquisition, conservation or improvement of property of either or both partners; or
(ii) the financial resources of either or both partners; and
(b) must consider the contributions (including homemaking or parenting contributions) made by either of the de facto partners to the other partner or to children of the partners or either of them; and
(c) must have regard to the terms of any relevant cohabitation agreement; and
(d) may have regard to other relevant matters.”
In the present case there was no cohabitation agreement.
The Judge was required, as far as practicable, to resolve all questions about division of property and to avoid further proceedings: s 12.
The Act is in terms similar to legislation…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Hogg v Roberts [2003] SASC 410
Case
[2003] SASC 410
Decision Date
CaseChat Overview and Summary
In the case of Hogg v Roberts, the primary dispute concerns the division of assets and liabilities following the breakdown of a de facto relationship. The matter was heard and determined in the South Australian Supreme Court. The central issue in the case was the fairness of the Judge's determination regarding the division of property and the financial support contributions of the parties involved. Specifically, the appeal questioned whether the Judge had correctly assessed the contributions of both parties to the property and whether the allowance for the occupation of one of the properties was appropriate.
The reasoning of the court involved a detailed analysis of the contributions made by each party to the relationship, both financially and through homemaking and parenting duties. The Judge had considered several factors, including the financial contributions to the purchase of the Goolwa property, the value of the Kanmantoo property which was acquired with funds belonging to Mr Hogg, Ms Roberts' contributions to the Kanmantoo property, her parenting and homemaking roles, and the rental value of the Goolwa property during Mr Hogg's occupation. The court found that while the Judge had made some errors in calculating the allowance for the occupation of the Goolwa property, these errors did not significantly impact the overall fairness of the decision. The appeal was largely dismissed with minor adjustments suggested for the future proceedings.
Ultimately, the court affirmed the Judge's decision with minor modifications. The primary financial order remains at $56,000.00 to be paid by Mr Hogg to Ms Roberts, reflecting the contributions and roles of each party during and after the relationship. However, it was noted that the allowance for the occupation of the Goolwa property should have been reduced to reflect Mr Hogg's status as a joint owner, resulting in a correction of up to approximately $5,000.00. This correction was intended to ensure the final orders reflected a more accurate division of the assets and liabilities in accordance with the Family Law Act.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
A relevant matter is the fact that the Kanmantoo property was acquired with funds that Mr Hogg had or gained access to at the commencement of the relationship. They are an asset that he brought into the relationship. No contribution was made to these funds by Ms Roberts.The Judge’s decision Ms Roberts had been supporting the children of the relationship since the parties separated. Mr Hogg’s contribution to their support was minimal. She claimed a payment of $25,000.00. The Judge made no allowance for that. The Judge made allowance for the fact that Mr Hogg had occupied the Goolwa house since November 2000. He noted that the likely rental value of the property was about $115.00 per week. He did not specify the allowance that he had made. Presumably it was of the order of about $12,000.00. (His decision was made in June 2003). The Judge said that he took account of “the substantial financial contribution” by Mr Hogg to the purchase of the Goolwa property, the value of that property, Ms Roberts’ contributions to the Kanmantoo property, her homemaking and parenting contributions during the relationship, and the allowance that should be made for Mr Hoggs’ occupation of the house. On that basis he fixed the payment to Ms Roberts at $56,000.00. He gave no indication of how the matters referred to led him to that figure.Issues on appeal I have indicated why the Judge’s decision not to order Ms Roberts to make a payment in respect of the partnership debts was correct. For what it is worth, it may remain open to Mr Hogg to pursue Ms Roberts for those debts. Mr Hogg argued that there was no satisfactory proof that Ms Roberts’ efforts at Kanmantoo added to the value of the property. The same could be said of various items of expenditure relied on by him. The Judge was entitled to decide that the work made some difference to the value of the property. Mr Hogg objected that in allowing for the value of his occupation of the Goolwa property, the Judge failed to allow for outgoings Mr Hogg had met. That appears to be correct. I doubt whether this would have any significant effect on the final decision. He said the Judge should have allowed for the fact that Mr Hogg had given up his career in the police force, and was now studying to pursue another career. This affected his ability to earn income. I reject that submission. While the Judge appropriately would have regard to the means of the parties at the time, the Act did not authorise him to compensate Mr Hogg in some way for the loss of the career, or to penalise Ms Roberts for the fact that Mr Hogg had given up his career. However, in relation to the allowance for the occupation of the Goolwa house, I agree that the Judge should have allowed only an amount equal to half of the rental value, bearing in mind that Mr Hogg was a joint owner. On the information before the Judge any allowance in this respect in favour of Ms Roberts should not have exceeded about $5,000.00. As to the claim by Ms Roberts in respect of the support of the children, Mr Hogg made some vague complaints that Ms Roberts was defeating the statutory scheme for child support. I did not understand his submission in this respect, but I am satisfied that there is no substance in it. It was proper for the Judge to make an allowance on the basis of Ms Roberts’ parenting contribution. Her contribution was greater than Mr Hoggs’. As well, this Court’s decision in Arnold v Dalton [2002] SASC 429; (2002) 84 SASR 482 required the Judge to make an allowance for the parenting contribution Ms Roberts made to the children, in the form of supporting them, between the end of the relationship and the hearing of the claim: at [50].