JACOB & LAWRENCE
[2013] FamCA 188
FAMILY COURT OF AUSTRALIA
| JACOB & LAWRENCE | [2013] FamCA 188 |
| FAMILY LAW – JURISDICTION – application seeking a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) that the parties had lived together in a de facto relationship for at least two years or in the alternative, a declaration that the applicant had made substantial contributions of the kind referred to in s 90SM(4)(a), (b) or (c), and a declaration pursuant to s 90SB that a failure to make the declaration sought and the property orders sought by the applicant would result in a serious injustice to the applicant. FAMILY LAW – DE FACTO RELATIONSHIP – living together as a couple on a genuine domestic basis – degree of mutual commitment to a shared life FAMILY LAW – SUBSTANTIAL CONTRIBUTIONS – meaning of ‘contribution’ and whether those contributions are substantial FAMILY LAW – ORDERS – finding that the applicant has not established the necessary jurisdictional facts – Application dismissed. |
| Family Law Act 1975 (Cth) |
| V and K [2005] FCWA 80 Jonah & White [2011] FamCA 221 Jonah & White [2012] FamCAFC 200 Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 Vaughan v Hoskovich [2010] NSWSC 706 |
| APPLICANT: | Ms Jacob |
| RESPONDENT: | Mr Lawrence |
| FILE NUMBER: | MLC | 2295 | of | 2012 |
| DATE DELIVERED: | 27 March 2013 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Macmillan J |
| HEARING DATE: | 11 & 12 February 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Combes |
| SOLICITOR FOR THE APPLICANT: | Taussig Cherrie Fildes |
| COUNSEL FOR THE RESPONDENT: | Ms Swart |
| SOLICITOR FOR THE RESPONDENT: | Rudstein Kron Lawyers |
IT IS ORDERED THAT
The applicant’s amended application filed 23 January 2013 and the respondent’s Amended Response filed 4 February 2013 be and are hereby dismissed.
All extant applications be otherwise dismissed and removed from the list of cases awaiting hearing.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel including solicitor acting as counsel.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jacob & Lawrence has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 2295 of 2012
| Ms Jacob |
Applicant
And
| Mr Lawrence |
Respondent
REASONS FOR JUDGMENT
The parties in this case met on an internet dating site at the end of August 2009 and commenced a relationship shortly thereafter, initially the respondent says exchanging emails, letters and text messages. The respondent described himself as being besotted by the applicant and believed that his feelings were returned. It is clear from his evidence that he hoped for a long term relationship with the applicant. At the time their relationship commenced the respondent was renting an apartment in B suburb and it is common ground that the parties spent time together primarily at the applicant’s home in C suburb, albeit there is a dispute as to how much time. The parties moved in together in a house purchased by the respondent in C suburb in September 2010. The parties separated under the one roof on 14 October 2011. Although the respondent had various complaints about the nature of their relationship whilst they were living together, he did concede that they had a relationship as a couple living together on a genuine domestic basis between September 2010 when they moved into the C suburb property and their separation under the one roof on 14 October 2011.
The applicant’s case is that their de facto relationship commenced arguably in September 2009 but, as she said in cross-examination, more conservatively October 2009, which she based upon a combination of indicia including that the parties had commenced a sexual relationship in September 2009, that by then the respondent was producing documents relating to his financial position and she said “demanding” to see a summary of her financial position, that his daughter was pregnant and that he had asked her whether she was looking forward to being a grandmother and that he had by that time already spoken about moving in together.
Although the affidavits contain detailed evidence in relation to the nature of the relationship from the commencement of that relationship until the parties moved in together in September 2010, the relevant date for determining whether the parties lived together for the requisite two years must be 14 October 2009, two years prior to their separation on 14 October 2011.
The applicant in her Amended Initiating Application filed 23 January 2013 sought a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) that the parties had lived together in a de facto relationship for at least two years. In the alternative, the applicant sought a declaration that the applicant had made substantial contributions of the kind referred to in s 90SM(4)(a), (b) or (c), and a declaration pursuant to s 90SB that a failure to make the declaration sought and the property orders sought by the applicant would result in a serious injustice to the applicant.
The respondent in his Amended Response to the Initiating Application filed 4 February 2013 sought that the applicant’s Application for property orders be dismissed for want of jurisdiction.
The issues I must determine in this case are:
a)Whether by 14 October 2009 the parties had, having regard to all of the circumstances, commenced a relationship “as a couple living together on a genuine domestic basis”.
b)In the event that I find that they were not in a relationship “as a couple living together on a genuine domestic basis” by at least 14 October 2009 and am therefore not satisfied that the period of their relationship was at least two years then I must determine whether I am satisfied that the applicant made substantial contributions to the relationship and that the failure to make the orders sought by her would result in a serious injustice to the applicant.
Background
The respondent was 61 when he met and commenced a relationship with the applicant. At that time he ran his own building and construction business. His wife of 35 years had died of cancer in April 2008 and shortly before meeting the applicant in this case he was diagnosed with prostate cancer. He is now 64 years of age and a retired builder. He lives in a rented apartment in B suburb.
The applicant was 58 when she met and commenced her relationship with the respondent. She was living in a property she had purchased in C suburb in 2001. At that time she was and had since 1998 been working as a freelance consultant. Prior to that she had been employed in various professional capacities. She is now 62 years of age and describes herself as being retired, although her evidence suggests that is because her employment opportunities are limited rather than a decision to leave the workforce.
The applicant deposed that prior to meeting the respondent she had sufficient consulting work but that in the following few months her then business partner defaulted on two contracts which was the ‘death knell’ for her consulting business. In January 2010 she said she decided that she had little option but to look for employment and as a result began looking for full time job opportunities in both Melbourne and Adelaide.
Apart from commencing a sexual relationship and spending time together at the applicant’s home, the applicant and the respondent spent a weekend at D Town in October 2009 with friends of the applicant, an arrangement made by the applicant prior to meeting the respondent.
The applicant says that the parties talked about moving in together from early October 2009 and by January 2010 were actively making plans to move in together. This is disputed by the respondent who says that he and the applicant did not start discussing plans to move in together until February 2010.
The respondent purchased the C suburb property for $1,490,817 including stamp duty and incidentals and the parties moved into the property in or about September/October 2010. The respondent registered the property in the applicant’s name, he said for the purposes of asset protection.
The parties lived separately and apart under the one roof until 21 July 2012 when the applicant obtained an interim intervention order and the Police removed the respondent from the property. The matter was listed for hearing in the Magistrates Court at Melbourne on … July 2012. The intervention order was extended until … August 2012 when the matter was further listed for hearing. The respondent denied the applicant’s allegations but said he agreed to an intervention order without admissions because he wanted the matter over.
The applicant has occupied the C suburb property to the exclusion of the respondent since the respondent’s removal by the Police on 21 July 2012.
Legal Principles
Section 90RD(1) provides that if an application is made for an order under s 90SE (maintenance) or s 90SM (property settlement) and a claim is made in support of that application that a de facto relationship existed between the applicant and another person, the court may ‘declare that a de facto relationship existed, or never existed, between those 2 persons’.
Section 90SB further provides that a court may only make an order under s 90SE, 90SG or 90SM if the court is satisfied:
(a) that the period, or the total of the periods, of the de facto relationship is at least 2 years; or
(b) that there is a child of the de facto relationship; or
(c) that:
(i)the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); and
(ii)a failure to make the order or declaration would result in serious injustice to the applicant; or
(d) that the relationship is or was registered under a prescribed law of a State or Territory.
As there are no children of the alleged de facto relationship, and the relationship was not registered under the Relationships Act 2008 (Vic), the applicant must demonstrate that the relationship she had with the respondent was a de facto relationship of at least two years duration, or that she made substantial contributions of a kind mentioned in s 90SM(4)(a), (b) or (c) and that a failure to make the orders or declaration she seeks would result in a serious injustice to her.
Section 4(1) of the Act provides that ‘de facto relationship’ has the meaning given by s 4AA of the Act. Section 4AA provides as follows:
(1)A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family…; and
(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
…
(2)Those circumstances may include all or any 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 attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
As Murphy J said in Jonah & White [2011] FamCA 221 at 39 (which was upheld by the Full Court on appeal in Jonah & White [2012] FamCAFC 200):
The question of whether a de facto relationship exists is a determination of fact (albeit based on findings in relation to a non-exclusive number of statutory considerations) which founds the jurisdiction to make orders of the type contemplated by that part of the Act. The ultimate question is in the nature of a jurisdictional fact. In Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 148 the High Court held:
The term “jurisdictional fact” (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision maker to exercise a discretion.
Murphy J considered various decisions of State courts dealing with similar legislative considerations. In particular, he referred to the authorities dealing with the concept of “living together”. Although the extent of the parties’ common residence is just one of the circumstances to be considered and no finding is required in relation to any particular circumstance, it has been observed that it is difficult “…to see how parties could be said to be living together as a couple if they never had a common residence” (White J in Vaughan v Hoskovich [2010] NSWSC 706 at [50]).
However as Murphy J concluded, and this goes to the heart of what constitutes a de facto relationship, it “is the nature of the union rather than how it manifests itself in quantities of joint time. It is the nature of the union - the merger of two individual lives into life as a couple…”.
Credibility
The applicant and the respondent each paint their own picture of their relationship. There are however also many matters which relate to the issues I must determine about which the parties agree or where there is contemporaneous documentary evidence which lends weight to one or other version of events. There are also matters about which the parties disagree which are of marginal relevance and not determinative of the issues that I must decide.
That being said I do, in so far as the parties’ versions of events differ, prefer the respondent’s evidence. I found the applicant’s evidence and her demeanour in the witness box somewhat dramatic and she appeared to tailor her evidence not only to fit her perception of the relationship but also her sense of injustice about that relationship and what she perceived to be her entitlements subsequent to the breakdown of that relationship based upon what she said she was promised by the respondent.
The respondent’s evidence on the other hand was more direct and measured and he readily made concessions about his hopes for and expectations of the applicant and the relationship, his conduct during the relationship, the expectations he may have given the applicant and how he now felt about the applicant and their relationship.
Did the applicant and the respondent have a relationship as a couple living together as at 14 October 2009 and therefore, it would follow, for the requisite period of two years?
The circumstances relevant for the purposes of my determination as to whether the parties were living as a couple on a genuine domestic basis may include all or any of the following matters.
Duration of the relationship
It is common ground that the parties commenced a relationship in September 2009. That relationship continued until their separation. However in order for the applicant to satisfy me that she and the respondent were in a de facto relationship for at least two years I need to be satisfied that at least by 14 October 2009 the nature of that relationship was one of a couple living together on a genuine domestic basis. Whilst the parties generally agree about the duration of the relationship they do not agree upon the date from which it could be said they were living together as a couple on a genuine domestic basis.
The nature and extent of their common residence
The applicant in her affidavit filed 12 December 2012 deposed that prior to moving into the property in C suburb together, the respondent was at her home regularly, she went to his home once or twice and they were in daily contact. It was put to the applicant in cross-examination that it was at most three times a week which she denied, insisting that it was four to five times each week. However, she also deposed that the respondent stayed over at her home from time to time and she said “...at least six times in the first month or two”. This would suggest that by mid-October 2009 the parties are unlikely to have spent more than six or so nights together. The applicant’s evidence was that the amount of time the respondent was spending at her home at that time was more than she could manage.
Although I am satisfied that the parties were only staying overnight with each other on an occasional basis, the extent of their common residence, which the applicant conceded did not amount to the parties living together, is just one of the circumstances that might lead me to conclude that there was or was not a de facto relationship in this case at the requisite time.
Whether a sexual relationship exists
The applicant’s case is that she and the respondent had a sexual relationship from September 2009. Although on one occasion in his trial affidavit the respondent described their sexual relationship as commencing in October 2009 he also deposed in that same affidavit to the relationship becoming sexual from September 2009 and put his case on that basis. I am satisfied that the parties had a sexual relationship from September 2009.
The degree of financial dependence or interdependence, and any arrangements for financial support between them
The applicant conceded in cross-examination that in October 2009 there was no financial dependence or interdependence and there were at that time no arrangements for financial support.
Although there were, what the applicant said were, promises of financial support in the future upon which she relied, it is her evidence that in January 2010 she was proposing to obtain full time employment contrary to what she asserted was being proposed by the respondent at that time.
I am satisfied on the balance of probabilities on the evidence before me that during the latter part of 2009 any discussions in relation to future arrangements were general in nature and that at that time the applicant was not financially dependent upon the respondent nor was there any mingling of their financial affairs.
The ownership, use and acquisition of their property
It is common ground that the parties did not acquire any property until June 2010 when the respondent purchased the property in C suburb which was ultimately registered in the applicant’s name.
Although the respondent visited the applicant at her home and according to the applicant’s evidence stayed overnight on at least six occasions in the first two months, they maintained separate residences until they moved to the C suburb property in September 2010.
The degree of mutual commitment to a shared life
It is the evidence in relation to the degree of their mutual commitment that is in my view particularly telling in this case.
As I have previously found the respondent was quite forthcoming in describing his enthusiasm and commitment to the relationship with the applicant, however that being the case he also said that it was a developing relationship and not a de facto relationship until they commenced cohabitation. This is in my view consistent with the evidence, particularly as it relates to the relevant time frame. That evidence includes the following:
· On 9 November 2009 the respondent sent an email to his sister and brother in law in which he said as follows:
Just sent you a couple of funny emails sent to me by [Ms Jacob]. She has a good sense of humour and has me in tucks all the time. We’ve almost been going out 3 months-who knows where it is heading!!
· On 16 December 2009 the respondent wrote to the applicant as follows:
I would like the relationship to progress, which in turns means moving in together sometime in the future. We are different in quite a few of our ideas and I am afraid of the consequences but not so afraid I won’t take a risk.
· On 7 March 2010 the respondent sent an email to the applicant in which he said as follows:
I am sorry if I came over arrogantly regarding money – I never intended to. It is a tricky situation which I am sure neither of us wanted. Hopefully we both understand where we are heading but it probably needs us to move in together to make it work and we have to be patient because that is several months away. I hope the relationship can stand the strain because I feel it is a stage when it should develop from just dating.
I was also left with the impression after reading the applicant’s affidavits, particularly in so far as they dealt with the early stages of the relationship that she had reservations about the relationship and had not committed to that relationship to the same extent as the respondent. For example at paragraph 2 of her trial affidavit she deposed that the respondent “...stayed over at my home from time to time (at least six times in the first month or two), and he talked of a long term/permanent relationship from early October 2009 [emphasis added]. In paragraph 5 of that same affidavit she said that “...the respondent talked of moving in together from early October 2009. By January 2009, he was insistent that it happen quickly [emphasis added]”.
The applicant refers repeatedly to and relies for the purpose of her case on what she says were representations made by the respondent with respect to their relationship. That again suggests a fairly one sided commitment to the relationship.
This view of the applicant’s evidence was confirmed by the answers she gave in cross-examination, in particular her attitude to the discussions about her financial circumstances as “intrusive and quite rude”. She also described her reaction to the respondent’s reference to her being a grandmother to his grandchild as being a “shock to the system”. I am satisfied that this is not consistent with there being a mutual commitment to a shared life in the early stages of that relationship.
Although I have some reservations about the evidence of the applicant’s friend Mr E, and in particular what I perceived to be his tendency to say what he thought would promote the applicant’s case, his evidence, notwithstanding that tendency, supports my finding that in the first few months of the relationship the respondent was wanting to move the relationship forward but that the applicant did not have the same level of commitment to that relationship. He said he had heard from the applicant that the relationship was progressing quite well but also said that it was the respondent who was always talking about the next step and that he had encouraged the respondent not to put pressure on the applicant.
Conclusion
Although the parties in this case did ultimately live together and did merge their individual lives into life as a couple I am satisfied for all of the reasons I have discussed that that had not occurred by the end of 2009. It is possible that although the parties maintained separate residences until they moved into the C suburb property their lives did merge to such an extent that they could be said to be in a de facto relationship. However, it is not necessary for me to determine for the purposes of the application before me exactly when that may or may not have occurred in so far as I am satisfied that it had not occurred by 14 October 2009.
In all of the circumstances I am not satisfied that the applicant and the respondent were in a de facto relationship for a total period of at least two years and propose to dismiss the applicant’s application for a declaration to that affect.
Has the applicant made substantial contributions of the kind mentioned in s 90SM(4)(a), (b) or (c) of the Act, and would a failure to make an order or declaration result in serious injustice to the applicant?
The applicant submits that, notwithstanding a finding that the parties were not in a de facto relationship for the requisite two year period, she has made substantial contributions of the required kind and that a failure to make an order or declaration in her favour would result in a serious injustice.
It is the applicant’s case that during cohabitation she met all the joint household expenses including the vast majority of grocery and food supplies, all office expenses related to the respondent’s business and paid for much of their entertainment. She annexed to her affidavit a summary of what she said was her expenditure for the parties’ joint benefit. These include:
a)An amount of $1,135.61 for the respondent’s mobile phone between February 2010 and November 2011;
b)Home Office depreciation of $1,500 although there is no evidence as to how this has been calculated;
c)Home Office expenses of $6,070 although it is also clear from the evidence that the applicant was continuing to pursue consulting work and that these expenses are referable to both the applicant and the respondent;
d)Household expenses of $22,008 which are similarly referable to both the applicant and the respondent. This figure includes an amount of $2,792 for dog food, flea treatment and veterinary expenses for dogs which, although they were her dogs prior to the relationship, the respondent insisted were “our” dogs when they commenced cohabitation;
e)An amount of $7,452 on entertainment, similarly a shared expense;
f)A figure of $19,563 for holiday expenses, the most significant expense being the amount of $15,000 the applicant attributed to the cost of two business class fares which she used her frequent flyer points to purchase;
g)A figure of $4,602 being removalist costs for her relocation to the C suburb property.
During the period when the applicant says that she made these financial contributions either for the respondent or for their joint benefit it is the respondent’s case, based upon an analysis of the applicant’s credit card statements, that she spent almost $110,000 on personal expenditure. The applicant in cross-examination said that some of the $4,926 spent on watches was spent on watches for the respondent and that they both watched the DVD’s and had the benefit of the books and DVD’s purchased. This was conceded by the respondent. The applicant also said that she had used her Paypal account to make a number of purchases for friends. She did not otherwise, to any significant degree, dispute the evidence of her personal expenditure during this period.
It is the respondent’s unchallenged evidence that during the 12 months prior to their separation he paid for the following:
a)Furniture $ 7,557
b)The European holiday $ 27,737
c)Household expenses including all meals out $ 10,643
d)Improvements to the property $ 10,740
e)Interest on housing loan and rates $110,954
It is common ground that the respondent provided all of the funds for the acquisition of the C suburb property.
The applicant also deposed that she had input into the respondent’s business which included:
a)Personally designing and researching online printing services and paid for the printing of new business stationary for the respondent’s business including letterhead, business cards and signs for the building sites;
b)Giving the respondent a flat panel monitor and a more up to date personal computer upon which she installed the latest Microsoft Office systems and set up his business files which she estimated took approximately three to five days.
c)She said she attended a client meeting with his architect and his wife where they discussed the detail and proposed changes to the residence the respondent was building for them;
d)Worked on some spreadsheets regarding cash flows and accounts;
e)Helped the respondent to appraise and amend a floor plan for a new project;
f)Helped the respondent choose tiles and bench top and contributed to the kitchen design for one of the respondent’s building projects;
g)That the respondent asked her to inspect a completed project to provide feedback on fittings and furnishings for future projects; and
h)Produced approximately 10 letters which she said were examples of letters she typed to assist the respondent in his business.
The applicant also deposed that she maintained the household doing the vast majority of the cooking, most of the cleaning, purchasing food and household supplies, feeding and grooming the dogs, maintaining the garden and researching and sourcing items to improve the property.
The reference to substantial contributions in the Act is to particular categories of contributions. Those categories of contributions are as follows:
a)The financial contributions made directly or indirectly by or on behalf of a party to the de facto relationship to:
i)The acquisition, conservation or improvement of any of the property of the parties to the de facto relationship; or
ii)Otherwise in relation to the last mentioned property
b)The contribution (other than a financial contribution or improvement of any of the property of the parties to;
i)The acquisition, conservation or improvement of the property of any of the parties or either of them; or
ii)Otherwise in relation to any of the last mentioned property
c)The contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties including any contribution made in the capacity of homemaker or parent.
In V and K [2005] FCWA 80 Holden CJ said at paragraph 21 in relation to the meaning of “substantial contributions” as follows:
In my view, substantial means something more than usual or ordinary. In my view, [the section] is aimed at more exceptional circumstances where serious injustice may be caused by the application [of the provision].
The applicant’s evidence as to her contributions, particularly her contributions to the respondent's business, was the subject of significant challenge. The respondent relied upon the evidence of his friend Dr F both as to the applicant’s contributions as a homemaker and the nature of their relationship, Mr G, an architect who worked with the respondent and for whom one of the properties constructed by the respondent during the relationship was built, and Mr H, a kitchen manufacturer engaged by the respondent to build the kitchens for his projects including the projects he was involved in during the relationship. They were all cross-examined by Counsel for the applicant, albeit that cross-examination was in each case quite brief. Their evidence was in each case convincing and withstood the test of cross-examination In particular their evidence contradicted the applicant’s evidence with respect to her contributions to the respondent’s business. Where there is a contradiction, I prefer the evidence of the respondent and his witnesses and am satisfied that, although the applicant did assist the respondent, she has exaggerated the significance of her contributions to his building business.
Even if I accepted the applicant’s evidence at its highest her contributions are, not in my view, “substantial” as envisaged by the Act. I find that her contributions to the C suburb property were minimal at best. I accept that she made contributions both as a homemaker and financial contributions to the household and to the parties’ lifestyle generally but in my view there was nothing exceptional about those contributions. They must also be viewed in the context of the contributions made by the respondent.
Counsel for the applicant ultimately conceded, in my view correctly, that these contributions were not substantial, however it was his submission that the sale of the respondent’s property in C suburb and the fact that she had foregone what she said were her prospects of full time employment were substantial contributions.
The applicant’s evidence was that when the parties first commenced their relationship she had sufficient consulting work but that in the following months her partner defaulted on two contracts. She said that she “…anticipated that this would significantly reduce future business opportunities in an already tightening consulting market, so in January 2010 [she] resolved to return to full time employment.” She said that she “…started looking for opportunities in both Melbourne and Adelaide and in January 2010 found five or six advertised vacancies for which she was appropriately qualified. Although she said she resolved to apply for them, she said she only lodged the one application because the respondent was adamant that she not obtain full time employment and only work as a part time consultant. She described the respondent as “ranting and raving” that he did not want her to work and that a decision to work on her part would have been a “deal breaker”.
It is the respondent’s case that although he expressed concern about her working too hard he did not try to stop her working. I have already said that in so far as there is a conflict between the evidence of the applicant and the respondent I prefer the respondent’s evidence. His evidence is supported by the emails he sent to the applicant in the early stages of the relationship discussing work arrangements and I am satisfied that he did not insist upon the applicant foregoing employment.
The applicant presents as a strong and quite forceful woman. Based upon the evidence and my observations of the applicant in the witness box I am satisfied that if she had wanted to work and there was a position available she would have taken it irrespective of the respondent’s opposition. It is clear that notwithstanding what she said was the respondent’s attitude to her working she applied for and attended an interview some months later. It was the fact that the position was filled by someone from within the organisation rather than the applicant acceding to what she said were the respondent’s demands that was the reason why she did not take that position. It is also clear that as late as June 2011 the applicant opposed the respondent’s preferred option of renting a property as she said it would have a negative impact upon her consulting business.
There is no evidence in support of the applicant’s assertion that there were five other positions she could have applied for and it is hard to understand why she would apply for one position and not the others. As she herself deposed there was a tightening of government funds and reductions in the number of government positions available. I am not satisfied that even if the applicant had wanted to obtain full time employment or work as a consultant there were positions or contracts available.
To the extent that the applicant asserts that she was disadvantaged by being out of the workforce it is clear from her own evidence that in the early stages of the relationship she was almost 60 years of age and had by then been out of the full time workforce for some 13 years. It is simply not possible to attribute what she claims are her now limited employment prospects to her decision, she says at the insistence of the respondent, and contrary to my finding that he did not so insist, to not pursue full time employment.
The applicant also puts her case on the basis that she gave up the security of her own home and lost a further $35,000 in selling and relocation costs at the insistence of the respondent and that this is a substantial contribution on her part as a result of which she would, if I did not make an order or declaration, suffer a serious injustice.
At the commencement of the relationship the applicant was the registered proprietor of her own property which, at the time of its sale, was subject to a mortgage of approximately $303,000. She also had significant credit card debts and income tax liabilities. She described her position at that time as “line ball” but said that she was not concerned on the basis that one good consulting contract would be enough to meet any shortfall she might have. Her debts increased significantly between signing the contract and settlement of the sale.
The applicant’s case was that the respondent forced her to sell and that her preferred option had been to add an extra floor to her property. The respondent denied forcing the applicant to sell and said that she had told him that she could not retain the property because she could not service her debts. He also said that she had told him she did not want to be questioned about what had happened to the net proceeds because she was “embarrassed” that there was no money left after paying her debts. This is certainly consistent with her evidence as to the level of her indebtedness.
Even if it had been possible to add another floor to the applicant’s home and the respondent had agreed to do so it is clear on the basis of the evidence of both the applicant and the respondent that it would have been the respondent who would have had to pay for the renovations to the applicant’s property. It is also clear on the basis of the evidence that whether or not she stopped working at the respondent’s insistence or because there was no work available she would have had to make some provision to meet what were at that time substantial liabilities. There is no evidence other than her assertions that it was not a serious problem and that one good contract would have fixed the problem; that would suggest that she had the means of doing so without the respondent’s assistance. It is clear, and I find, that without financial assistance from the respondent the applicant would almost certainly have had to sell her property to retire debt.
The applicant gave evidence that although the contract price for the sale of her property was $570,000 she was paid a further $100,000 by the purchaser’s fiancé, her friend and a witness in the case Mr E. I had some difficulty making sense of the evidence in relation to the application of the proceeds of sale of the property. However, whether or not all of the proceeds were applied to retire debt, the applicant did not suggest that any of the funds were applied to the purchase of the C suburb property acquired by the respondent and registered in her name. It is of course possible that if there were any funds left over after payment of her liabilities that she applied them to some of the joint expenses to which I have already referred.
To ‘contribute’ is defined in the Australian Concise Oxford (5th Ed) (2009) as “to help to bring about a result” and in the Shorter Oxford English Dictionary (6th Ed) (2007) as to “play a part in the achievement of a result”. Even if I were satisfied that the applicant had foregone her prospects of employment or given up the security of her own home for the respondent it is what follows from those acts or decisions rather than the acts themselves which are the substance of her contributions. For example, a party to proceedings could give up their job and then spend the rest of their time in bed. The giving up of the job would add little to the relationship in those circumstances. Similarly, a party to proceedings could sell their home and lose all of the proceeds at the casino. That similarly would add little to the relationship by way of a contribution to that relationship.
If, for example, the applicant gave up her job at the insistence of the respondent and then, as I have found, made a fairly minimal contribution to his business it is the contribution to his business which I must consider in determining whether or not there has been a substantial contribution. Similarly if the applicant sold her house, at the insistence of the respondent, and contributed the net proceeds of sale to the relationship it is that contribution which I should take into account. In this case there is no evidence that she contributed any of the proceeds of sale of her property to the relationship beyond those contributions that I have referred to.
As previously discussed the “substantial contributions” must be of a kind mentioned in s 90SM(4)(a), (b) or (c). Clearly foregoing employment opportunities and giving up the security of a home are not contributions of the kind referred to in s 90SM(4)(a) and (b). That leaves s 90SM(4)(c), being a contribution to the welfare of the family including any contribution made in the capacity of homemaker and parent. The fact of foregoing employment or giving up the security of a home are not contributions of the kind referred to in s 90SM(4)(c). While the applicant submits she undertook domestic duties in the home such as cooking, cleaning, purchasing food and household supplies, feeding and grooming the dogs, maintaining the garden and researching and sourcing items to improve the property, those duties are not of a kind which met the requisite standard of substantial contributions referred to in the Act and discussed above.
When I asked Counsel for the applicant if he could point me to any authorities for the proposition that foregoing employment opportunities or giving up the security of a home were themselves substantial contributions, he could not refer me to any. Counsel for the respondent suggested that V & K was authority for the proposition that giving up the security of one’s home might be a contribution, however it is clear from that case that it was the application of the proceeds of sale of the property to the relationship that was the contribution, not the giving up of the security of a home.
Conclusion
I have some sympathy for the position the applicant now finds herself in, however I must determine this matter in accordance with the provisions of the Act. Parties enter into relationships on a regular basis with the expectation that their partner will provide them with ongoing support, however this Court cannot make orders for either property settlement or maintenance unless it can be established that the parties to that relationship were a couple living together on a genuine domestic basis for a period or periods totalling at least two years. In this case I have found that they did not.
If the parties have not had a relationship as a couple living together on a genuine domestic basis for at least two years, orders for property settlement or maintenance may be made if it is established that a party has made substantial contributions of the kind referred to in the relevant provisions of the Act and that party would suffer a substantial injustice if an order were not to be made. The applicant in this case has not done so. The Act requires the applicant to establish that she has made substantial contributions and that she would suffer a serious injustice if an order were not made in her favour. I have found that the applicant’s contributions were not substantial. In the absence of a finding that she has made substantial contributions it is not necessary to consider whether or not she is likely to suffer a serious injustice.
In all of the circumstances of this case I find that the applicant has not established the necessary jurisdictional facts and I propose to dismiss her application.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 27 March 2013.
Associate:
Date: 27 March 2013
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