J.R v P.0
[2002] QDC 289
•23 October 2002
DISTRICT COURT OF QUEENSLAND
CITATION:
J.R v P.0 [2002] QDC 289
PARTIES:
J.R
(applicant)
V
P.O
(respondent)FILE NO/S:
27 of 2002
DIVISION:
District Court
PROCEEDING:
Application for property settlement orders – de facto relationship
ORIGINATING COURT:
DELIVERED ON:
23 October 2002
DELIVERED AT:
Townsville
HEARING DATE:
16 & 17 October 2002
JUDGE:
CF Wall QC
ORDERS:
Property adjustment order in favour of the applicant. The respondent pay the applicant $14,000.
CATCHWORDS:
DE FACTO RELATIONSHIP – PROPERTY ADJUSTMENT ORDER – NATURE OF DE FACTO RELATIONSHIP – COHABITATION AGREEMENT
Property Settlement under Property Law Act – Apportionment between the parties – Wh imbalance in respective contributions to relationship – Wh cohabitation agreement between the parties
Property Law Act 1974 – Part 19
COUNSEL:
W. Pack for the applicant
G. Lynham for the respondent
SOLICITORS:
Roberts Nehmer McKee for the applicant
Janet Williamson for the respondent
DISTRICT COURT
CIVIL JURISDICTION
JUDGE C F WALL QC
No D27 of 2002
| PR | Applicant |
| and | |
| JO | Respondent |
TOWNSVILLE
..DATE 23/10/2002
JUDGMENT
HIS HONOUR: This is an application for a property adjustment order under part 19 of the Property Law Act.
The applicant was born on the 22nd of November 1972 and the respondent on the 30th of December 1967. They are both soldiers in the Australian Army. The applicant is a lance corporal and the respondent is a corporal. Their de facto relationship commenced on the 1st of February 1996 and concluded on the 25th of October 2000. They have one child from their relationship, a boy, KR, born on the 11th of March 1999.
At the commencement of their relationship their agreed respective asset positions were:
APPLICANT RESPONDENT
Insurance Polices/
Shares $ 9,067 $ 19,381
Motor Vehicle $ 18,000
Bank Savings $ 26,124 $ 8,764
Furniture and Other
Personal Property $ 4,000 $ 4,000
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$ 32,191 $ 47,145
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At the conclusion of their relationship their agreed respective asset positions were:
APPLICANT RESPONDENT
Insurance Policies/
Shares $ 26,942.53 $ 45,025
Motor Vehicles $ 9,100 $ 12,000
Bank Savings $ 9,732 $ 45,663
Furniture and Other
Personal Property $ 2,800 $ 4,900
National Australia
Bank Joint Bank
Account $ 1,561
----------- --------
$ 50,135.53 $107,588
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The furniture and other personal property at separation represents property acquired during their relationship and the value of that property retained by each upon separation. This is to be regarded as jointly owned property which was purchased for use by both parties as a couple.
The applicant suffers from chronic fatigue syndrome and depression and has suffered from these conditions since 1996. Since early 1998 he has, as a result, been working half days only, five days a week. He works 25 hours a week doing clerical or administrative desk work. He is paid for a full week's work. A Medical Employment Category Review Board has classified him as "class 4 - unfit for military service" because of his conditions and a decision has been made to discharge him from the army. The decisions of the Board tend to be binding. His prognosis is poor and improvement is unlikely.
The applicant accepts that he is unfit for military service but is seeking redress of the decision to discharge him on the basis of the absence of a definitive diagnosis of chronic fatigue syndrome. It is likely though that he will be discharged sometime in the next six months and he realistically accepts this. He will be able to continue to work in a part time administrative or clerical job for about 25 hours a week. Finding such employment is, of course, another matter.
The respondent is a cook and intends to remain in the army. She has one more promotional course to complete following which she will be promoted to sergeant. She works in a deployable field unit.
Within a short time of separating the applicant commenced a new de facto relationship with a lady called Andrea. That relationship continues. Andrea has two children. The applicant and Andrea have purchased a house which they are paying off. Andrea works full time. They share expenses.
The de facto relationship of the applicant and respondent was recognised by the army. To assist in obtaining recognition they established the National Australia Bank joint bank account. Its balance has not changed much and it became known as "Kyle's account." It was not used.
The arrangements which existed during their relationship as a result of agreement between them were these: They shared the household expenses, each contributing in different ways. Their respective wages were paid into their separate bank accounts. They retained their separate investment portfolios and made any required payments therefore from their separate accounts. Each portfolio increased in value as a result of their separate individual efforts. They separately owned, paid for, serviced and fuelled their own vehicles. When Kyle was born they contributed in different ways and amounts to his care, maintenance and upbringing. They had, and still have, a relatively mature relationship and arrangement for the care of Kyle. Custody is joint and he resides with each at times agreed by them and subject to an order of the Federal Magistrates Court. They share expenses. The respondent pays the applicant child support of $30 a month. Apart from that, the contributions of each to the maintenance of Kyle are equivalent in kind recognising that there are always differences in the precise nature of the contributions each makes.
Neither gave evidence of a formal agreement to the effect that each would retain their own property and normal or usual earnings and share expenses during their relationship, but each agreed that that was what occurred and was the way their relationship was structured. Beyond that, neither appear to have given any thought to what would be the position had they separated.
In my view there was, looked at realistically, a cohabitation agreement reached between them (sections 255(b), 264(1) and 270 Property Law Act) notwithstanding that it commenced before the 21st of December 1999 (section 264(3)(a) Property Law Act). The agreement was made at the commencement of their relationship and varied during it to cater for Kyle and dealt with some of their financial matters being those I have already referred to (section 264(1) Property Law Act). The fact that their agreement did not make any specific, as opposed to inferential, provision as to financial matters should they separate does not make it any the less a cohabitation agreement. The agreement evidences the intention of the parties as to significant financial matters involved in their relationship and weight should be attached to it. It is not though a recognised agreement (sections 266 and 277 Property Law Act).
Mrs Pack, for the applicant, conceded that it was open to find that the parties had reached a cohabitation agreement. If I am wrong about the parties having reached such an agreement, the way they ordered their affairs and dealt with their own property during their relationship likewise evidences their intention and is, for that reason, relevant to take into account.
The applicant submitted that the property of the parties at separation should be divided equally. The respondent submitted that each should retain what each had. The applicant relied upon traditional family law principles applicable to married couples.
In my view a de facto relationship is not the same as a marriage. Over time it may bear many of the hallmarks of a marriage, but that does not make it a marriage. Each case is different and the same rules will not, as a matter of course, apply to all. In a de facto relationship the parties may not be willing at the commencement or for some time, if at all, for any number of reasons to make a lifetime commitment to each other. There may exist reservations about the relationship. Often there is a reluctance to go the whole way. Many couples maintain a degree of separateness of property including pre-existing resources as opposed to that pooling of property and resources which invariably occurs in a marriage, subject, of course, to pre-nuptial agreements.
Parties enter a marriage forever, or at least that is what they initially intend. That is not necessarily the case with a de facto relationship. A de facto relationship ends when one party leaves or both decide it is over. Nothing more is required. When parties marry they commit to a lifetime together joining themselves and their separate property; what belonged to each then belongs to them both. People go into de facto relationships for any number of reasons, for example, "Let's try it out", "Let's see how we go", but not necessarily forever. Some may say, "Let's just live together for a time." Young people often live together sharing expenses but never intend to marry. They may, in fact, end up marrying each other. Many young people intend to marry later, but not necessarily to the person they are living with. A de facto couple may "live together on a genuine domestic basis in a relationship based on intimacy, trust and personal commitment to each other" (section 260(2) Property Law Act), but without a lifetime commitment and intending to retain their own property and income after sharing expenses. There is not necessarily that pooling of resources and income which is normally associated with a marriage. Permanency exists in a marriage but not necessarily in a de facto relationship. Neither of the de facto parties stand opposite each other at the commencement of the relationship and say words to the effect, "We are going to live in a de facto relationship forever." Persons getting married stand opposite each other before they are married and effectively say to each other, "We will be together for life."
A long de facto relationship could, depending on how the parties order their affairs, have, in real terms, the same effect as a marriage. Each case is different, each depends on its own circumstances. There are an infinite variety of circumstances that can exist in relation to de facto couples that do not necessarily exist with marriages. Cohabitation and separation agreements recognise that.
In the present case I find that the parties wanted to live together but generally retain their individual resources and financial independence. To obtain army married quarters their relationship had to be recognised by the army as a de facto relationship. Married quarters enabled them to live together and share expenses; those expenses increased with the birth of Kyle. In all other respects each intended to retain what they separately owned and normally or usually earned. Furniture and the like needed for their house was purchased and shared and should accordingly also be shared now.
In the present case the following matters, in addition to those I have already referred to are, I consider, of particular relevance to a determination of what is a just and equitable property adjustment order:
At the commencement of the relationship the respondent's financial assets exceeded those of the applicant by about $15,000.
At the commencement of the relationship the respondent owned a motor vehicle and the applicant did not. She still had her vehicle at separation. The applicant purchased his during the course of their relationship.
The applicant has suffered from chronic fatigue syndrome and depression since at least 1998 and the respondent knew of this and accepted this to be the case.
The relationship was a relatively short one lasting some four years and nine months (section 305 Property Law Act).
Expenses and responsibilities were shared during the relationship and the sharing was generally of an equal nature recognising that each contributed in the same and different ways.
There is an imbalance of $2,100 in the respondent's favour in the jointly owned furniture and personal property retained after separation and this should be recognised in the applicant's favour.
The National Australia Bank joint bank account of $1,561 is the property of both parties and should be divided equally between them. The account should then be closed.
The additional net earnings of the respondent over and above her normal or usual salary as a result of two deployments by her to East Timor in 2000 totalling six months were about $25,000, an amount agreed to by the parties. During these deployments the applicant solely cared for Kyle and without that or other more distant family assistance the respondent would not have been able to deploy to East Timor. The respondent conceded that the applicant in this way contributed to this income but submitted that the applicant's entitlement as a result should not exceed $4,000 or $5,000. On the other hand, the fact that this income was, in fact, earned by the respondent as a result of continuous service in a danger zone where she personally had to bear the rigours and deprivation associated therewith should not be overlooked. In my view the applicant's contribution to this income should be assessed at about one-third.
The parties readjusted their affairs to allow the respondent to deploy to East Timor.
10.Each is responsible for caring for Kyle and each contributes in their different ways the same care and care of approximately the same value.
11.The respondent's earning capacity is and will be greater than the applicant's.
12.Before separation and as a result of courses, field trips and other deployments by the respondent the applicant solely cared for Kyle for six to eight extra weeks other than during the respondent's deployment to East Timor.
13.Since separation and up to the end of September 2002 and as a result of courses, field trips and other deployments by the respondent the applicant has solely cared for Kyle for some 77 extra days, that is, days that the respondent would normally have cared for him. The has involved a concomitant additional commitment of financial support. The respondent's last field trip was 2-16th September 2002. She says that she has only one more course to attend to secure her promotion to sergeant and then expects her time away from home to decrease. Realistically though she is part of a deployable unit and is likely to be away from home on occasions when she would normally care for Kyle, and as a result, that responsibility will fall to the applicant. It is likely he will, for this reason, spend some more time than the respondent in caring for Kyle. Attendance on courses, field trips and other deployments also slightly increases the respondent's income.
14.The existing family financial arrangements did not alter with the birth of Kyle. His birth resulted in increased contributions by each to common expenses.
15.The respondent has, as she is entitled to, retained the parties army married quarters. Rent is about $200 a fortnight. The applicant is purchasing a house. Mortgage repayments are about $960 a month.
16.I preferred the respondent's evidence that she gave the applicant amounts totalling $1,500 before each of her two deployments to East Timor. The bank statements supported her in this respect. This $3,000 balances out other or additional child care costs incurred by the applicant during those deployments.
17.The earnings of the applicant's current de facto partner are less than the respondent's and shortly the applicant will be discharged from the army and looking for work.
18.Each contributed in similar ways and, subject to the respondent's absences from Townsville for work, to the same extent to the family welfare for the purposes of section 292 Property Law Act.
19.The respondent pays $30 a month child support (sections 294 and 308 property Law Act). Realistically though this does not cover the additional costs incurred by the applicant for those extra periods that he cares for Kyle.
20.Each party cares for Kyle (sections 299 and 308 Property Law Act).
21.The respondent is in good health. The applicant is not and is likely to remain in indifferent health. This though does not impair his ability to work 25 hours a week or care for Kyle.
22.The income, property and financial resources of the respondent are and are likely to remain greater than those of the applicant.
23.The applicant currently has and has had for some time more time available (on full pay) to care for Kyle. Available time will increase after his discharge from the army, but his income will cease unless he finds alternative employment, and even then, it will be likely to be significantly less remunerative than it currently is.
24.The present income of the parties is comparable, but it will not remain so.
In my view an adjustment of the property of the parties in this case must recognise, subject to what I have said, the way the parties generally ordered the financial matters involved in their relationship, but it should also take into account events and circumstances since they commenced to live together and which were not, or may not have been in contemplation at that time as well as the current position, obligations and responsibilities of each.
I consider it is just and equitable that a property adjustment order be made in favour of the applicant to the extent that the respondent pay him $14,000.
For these reasons I make the property adjustment order in favour of the applicant. I order that the respondent pay the applicant $14,000.
I will hear the parties as to consequential orders and as to costs.
...
HIS HONOUR: I will adjourn the further hearing of the application in relation to consequential and other orders so far as it relates to that property referred to in paragraph 31(b) of the respondent's application and so far as it relates to the dogs to 9.30 a.m. on Wednesday the 6th of November, 2002.
...
HIS HONOUR: So far as costs are concerned, neither party submits that anything other than the normal rule set out in section 341 subsection (1) of the Property Law Act should apply, and in those circumstances I will not make any order for costs.
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