K, TI v E, Mm - [2012] SADC 8

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
K, TI v E, MM
[2012] SADC 8
Judgment of Her Honour Judge McIntyre
10 February 2012
FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS - ADJUSTMENT OF PROPERTY INTERESTS
K and E lived in a de facto relationship for approximately 16 years. They had two children together. After the relationship ended the plaintiff brought an application for a division of property pursuant to the Domestic Partners (Property) Act 1996. The plaintiff also seeks an extension of time within which to bring her application.
Held: Extension of time granted and division of property pursuant to Domestic Partners (Property) Act 1996 undertaken.
Domestic Partners (Property) Act 1996 ss9(2), 10 and 11(1); Commonwealth Powers (De Facto Relationships) Act 2009 (SA) ; Family Law Amendment Act (De Facto Financial Matters and Other Measures) Act 2008 , referred to.
Norbis v Norbis (1986) 161 CLR 513; Mallett v Mallett (1984) 156 CLR 605; Arnold v Dalton (2002) 84 SASR 482; Hogg v Roberts (2003) 87 SASR 248; H v G [2005] SASC 344; M, DA v P, N [2008] SADC 169; Weir v Weir (1992) FamCA 69; Aleksovski v Aleksovski [1996] FamCA 111; Farmer v Bramley [2000] FamCA 1615; Karpathious v Clemente [2008] SASC 316; Wilson v McLeay (1961) 106 CLR 523; Griffiths v Kerkemeyer (1977) 139 CLR 161; Beck v Farrelly (1975) 13 SASR 17, considered.

K, TI v E, MM
[2012] SADC 8
Application for division of property

TIK (the plaintiff) and MME (the defendant) lived together in a domestic relationship from 1992 until 2008. There are two children of the relationship, one born in February 1999 and another in February 2002.
TIK issued proceedings in this court on 31 August 2010 seeking a division of property under the Domestic Partners (Property) Act 1996 (the DPP Act). She also seeks an extension of time within which to bring her application. I have power to extend that time limit. For the reasons that follow I extend time and I find that the plaintiff is entitled to recover from the defendant the sum of $263,800 by way of a lump sum division of property.
The proceedings
The defendant did not attend the trial. He had initially instructed solicitors. They filed a Defence on his behalf admitting that the parties had lived together on a genuine domestic basis as husband and wife although not legally married to each other and that there are two children of that relationship. The defendant further agreed that the parties separated on or about 22 December 2008.
The defendant failed to provide his solicitor with instructions. He did not comply with the terms of the retainer and further failed to provide instructions for discovery. The defendant’s solicitor applied for and obtained leave of this Court to withdraw as his solicitor on 23 August 2011. The application was served on the defendant at his home address. He did not attend court. The Master’s ex tempore Reasons and Orders granting leave were sent to the defendant at his home address by the Court. The defendant was advised of the listing conference to be held in this matter on 1 September 2011 and of the necessity for him to attend or instruct solicitors. He did not attend nor did he instruct solicitors. The Court notified the defendant by letter to his home address of the trial listing and the consequences of failing to attend.
On 17 October 2011 the plaintiff issued interlocutory proceedings seeking an injunction restraining the defendant from dealing with certain property. This was supported by an affidavit of a process server detailing his unsuccessful efforts to personally serve the defendant at his home address and his place of business.
The defendant did not attend court on the day of trial. His name was called in the precincts of the court but there was no appearance.
The evidence suggests that the defendant has chosen not to further participate in these proceedings. It appears that he has taken a similar position in relation to recent proceedings in the Federal Magistrates Court relating to custody, access and child support matters. This places the plaintiff in a very difficult position. In all of the circumstances I determined the matter should proceed in the absence of the defendant.
The only oral evidence called was that of the plaintiff. I found her to be an honest and reliable witness who did her best to assist the court despite the difficulty she experienced in remembering matters that occurred some years ago and the obvious distress she felt when relating certain matters relating to the separation of the parties. She was not subject to cross examination owing to the non-attendance of the defendant but, as will be seen from the following discussion, many aspects of her evidence were corroborated by contemporary documents. I have no hesitation in accepting the plaintiff’s evidence.
The relationship of the parties
The parties met in about Easter 1992 in Alice Springs. They began living together in a rental property shortly after their initial meeting. Neither had substantial assets. At the time both were working; the plaintiff as a housemaid/cleaner at a motel and the defendant as a handyman in an hotel. They worked in a number of locations throughout Australia mostly in low paid casual positions although the defendant obtained qualifications and worked as a chef at some stage.
The defendant became a disability pensioner. The plaintiff was unable to recall when precisely that was. It appears however from documents tendered by the plaintiff, specifically an affidavit of the defendant’s former solicitor filed in proceedings in the Federal Magistrates Court of Australia[1] that this occurred shortly after the birth of the parties’ first child in February 1999. This is not inconsistent with the plaintiff’s evidence.
[1] Exhibit P2 Affidavit of Ms McDonald sworn 10 June 2011
The plaintiff gave evidence that she stopped working following the birth of their first child. Their second daughter was born in February 2002. The plaintiff has remained as a full time homemaker and since the birth of her two daughters. She has however undertaken some voluntary work with her daughters’ kindergarten and primary schools.
The parties purchased a house at Davoren Park in South Australia in 2004. The house was purchased in their joint names using a first homeowner’s grant, their joint savings and a mortgage from HomeStart.
On 7 December 2006 the defendant was seriously injured in a motorcycle accident. He remained in hospital for some three months following which he was discharged in a wheelchair. In consequence of the accident the defendant wished to relocate to the Riverland. In July 2007 the parties sold their property at Davoren Park. The proceeds were spent on purchasing a Nissan X-trail motor vehicle for the sum of $28,000, a computer for the children, removal costs and some outstanding bills. They moved into rental accommodation in the Riverland.
The plaintiff gave evidence that the defendant sustained a significant head injury and psychological injuries as well as a range of other injuries, in the motor vehicle accident. Perhaps due to this, the defendant’s personality changed and he became verbally abusive and physically violent towards her. There were several incidents of domestic violence including one particularly traumatic incident in which the defendant hit the plaintiff repeatedly with his quad stick and then took an overdose of his medication requiring him to be admitted to hospital. Shortly after this, the plaintiff and her children moved to another rental property on 22 December 2008. The parties have lived apart since that date. I find that they separated on that date.
Jurisdiction
The Commonwealth Powers (De Facto Relationships) Act 2009 (SA) referred financial matters relating to the breakdown of de facto relationships to the Commonwealth.[2] The Commonwealth passed the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (the FLA). South Australia is a referring State within the meaning of that Act.[3] The Commonwealth Act does not apply in relation to a de facto relationship that broke down before the commencement of the Act.[4] The FLA came into operation on 21 November 2008. However the South Australian legislation did not refer power to the Commonwealth until 1 July 2010. Accordingly, in the light of my finding that the parties separated on or about 22 December 2008 this matter falls to be determined under the State legislation, namely the DPP Act.
[2]    S4(1)(a)
[3]    S90RA(2)
[4]    S86(1)
Extension of Time
An application for division of property under the DPP Act may only be made if the criteria in s 9(2) are met and must be made within one year after the end of the domestic relationship. In view of the admissions made in the Defence and the evidence of the plaintiff it appears uncontentious that the criteria set out in s 9(2) are satisfied and I so find. The proceedings were not, however, issued within 12 months after the end of the domestic relationship. I have found that the parties separated on 22 December 2008. Proceedings should have been issued by 23 December 2009. They were not issued until 31 August 2010. Accordingly, the plaintiff’s application is some 9 months out of time.
After their separation the parties lived in the same Riverland town and, at least initially, had contact due to the children. The plaintiff gave evidence that she remained concerned for her safety and that of her children because of the defendant’s change in behaviour following the motor vehicle accident. She described him as very angry, verbally abusive and physically violent. She described him having threatened to kill her on one occasion. In consequence it was necessary for her to obtain an apprehended violence order which she did on 17 June 2010. She gave evidence that she was concerned about his reaction if she issued these proceedings without the protection of an order.
The parties have also engaged in litigation in the Federal Magistrates Court (“FMC”) over custody, access and child support issues.[5] In summary it appears from the FMC material provided to me and the evidence of the plaintiff that she has had the primary care of the two children of the relationship since separation. They had periods of access with their father but have not seen him since July 2011. The plaintiff has very limited means. She is on a pension, has few assets and lives in rental accommodation. The defendant has been erratic in paying the assessed child support. He has not paid any child support since mid 2011. This, incidentally, is the time at which the defendant’s solicitor ceased to act for him in the FMC proceedings and the time from which the defendant ceased to participate in these proceedings and those in the FMC.
[5] Exhibits P1 and P2
If no extension of time is granted, the plaintiff will have no recourse in respect of the assets of the relationship. In all of the circumstances I consider that an extension of time is necessary to avoid serious injustice to the plaintiff. In view of this I exercise my power to extend the time limit for the bringing of these proceedings to 31 August 2010, the date upon which the plaintiff instituted the proceedings.
Division of property – legal considerations
Section 10 of the DPP Act gives the Court power to make such orders as it considers necessary to divide the property of either or both partners between them in a way that is just and equitable. Section 11(1) provides:
11—Matters for consideration by court
(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 domestic 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 domestic 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 domestic partnership agreement; and
(d)     may have regard to other relevant matters.
I have found that the parties fall within the jurisdictional requirements of s9(2) of the DPP Act. They have not entered into a domestic partnership agreement.
The DPP Act has been the subject of a number of decisions of the Full Court of the Supreme Court.[6] From those cases, the following principles can be stated:
1The Court should identify and value the assets; determine the contributions made by the parties and whether those contributions have already been sufficiently recognised and compensated for and finally make the appropriate adjustment.
2The requirement to make an order that is just and equitable does not give rise to a general and unfettered discretion.
3The Court is dividing property not settling all outstanding financial issues between the parties.
4The initial and primary focus is on the property, contributions to the property, contributions to financial resources and contributions by one party to the other and to the children.
5Other matters that ought to be taken into consideration include the length of the relationship and the immediate needs of the parties at the time of the hearing although it is not the role of the Court to provide continuing maintenance of the parties or their future financial prospects.
6Contributions as a homemaker and parent are not inferior to material or financial contributions and must be accounted for in a substantial way.
7There is no need to take a narrow approach involving careful tracking of income and expenditure, contributions made and benefits received. Mathematical precision is not required but a court in assessing contributions would normally have regard to particular assets. The legislation requires a reasonably broad and practical approach.
[6] Arnold v. Dalton (2002) 84 SASR 482, Hogg v Roberts (2003) 87 SASR 248, Karpathious v Clemente [2008] SASC 316, H v G [2005] SASC 344.
The property identified
The property that is the subject of the application comprises the Nissan X-trail purchased by the parties following the sale of the Davoren Park property, furniture and effects from their former residence and the claim for damages arising out of the defendant’s motor cycle accident. The latter item is the most substantial asset and the most problematic.
The plaintiff’s evidence was that following the sale of the Davoren Park property in July 2007 they purchased a Nissan X-trail vehicle for the sum of $28,000. When she left the defendant he retained that vehicle. She did not take any furniture or effects with her at separation other than the children’s bedroom furniture. The remaining furniture and effects stayed with the defendant.
The plaintiff did not give an estimate of the value of the furniture and effects other than to say she purchased replacement furniture using $15,000 she obtained by way of settlement of her claim for loss of consortium arising from the defendant’s motor vehicle accident. I further do not have an estimate of the current value of the Nissan X-trail; indeed I do not know whether the defendant retains that vehicle or has subsequently sold it. I say this not to be critical of the plaintiff. The defendant has, since the withdrawal of his solicitor, not taken any active part in proceedings including the fact he has failed to comply with the orders for discovery of documents. Given the circumstances, in particular relating to domestic violence, it is not surprising that the plaintiff is unable to provide these details which are peculiarly within the knowledge of the defendant. It is likely that the value of the furniture is nominal and that the value of the Nissan has decreased considerably since it was purchased in 2007. Doing the best I can I assess the combined value of those assets as $20,000.00.
The most substantial asset of the relationship is the claim for damages arising out of the defendant’s motor vehicle accident. The plaintiff had a claim for loss of consortium and the defendant a claim for damages for personal injury. At the date of separation this was a chose in action.
Property is widely defined in s3 of the DPP Act as follows:-
property of a person includes—
(a)a prospective entitlement or benefit under a superannuation or retirement benefit scheme;
(b)property held under a discretionary trust that could, under the terms of the trust, be vested in the person or applied for the person's benefit;
(c)property over which the person has a direct or indirect power of disposition and which may be used or applied for the person's benefit;
(d) any other valuable benefit.
A chose in action is, in my view, property for the purpose of the DPP Act.
Because of the defendant’s failure to properly engage in these proceedings, and in particular to provide discovery and give evidence, the information concerning the settlement of his injuries claim is limited. The affidavit of the defendant’s solicitor filed in FMC proceedings referred to above, however, annexes a copy of the Statement of Claim, the formulated claim for damages and a letter from the defendant’s solicitors concerning the settlement. It appears from this material that the action settled in or about late 2009, for the sum of $1,035,000 inclusive of costs and disbursements in addition to medical expenses already paid. The plaintiff received the sum of $15,000 by way of loss of consortium and the balance of $910,977.20, following adjustments was paid to the defendant.[7]
[7] Annexure AKM6 to the Affidavit of Ann McDonald sworn 10 June 2011, Exhibit P2
Accordingly the total assets of the parties for division are approximately $946,000 being the Nissan, the furniture, the plaintiff’s loss of consortium claim and the defendant’s personal injuries claim.
The contributions of the parties
It appears uncontentious that the relationship lasted from 1992 until separation in 2008. This is a lengthy relationship of about 16 years. Neither party had substantial assets when they entered into the relationship. For the first seven years both parties worked in paid employment. The information I have about their earnings is limited however I find that for this period they contributed in roughly equal amounts to the acquisition of assets.
Following the birth of the parties’ first child in 1999, and both parties ceasing paid employment, I accept the plaintiff’s evidence that she was the primary caregiver to the parties’ two children and had the primary role in maintaining the house and garden. The defendant denies this in his Defence and states that the parties shared equally in household duties and parental responsibilities. However the defendant did not give evidence in these proceedings to support this assertion. I found the plaintiff to be an impressive witness and I accept her evidence that whilst the defendant assisted in these matters she made the primary contribution to parenting and the maintenance of the family home.
The purchase of the Davoren Park property was, I find, contributed to equally by the parties. The proceeds of its sale were applied to joint expenses and assets as I have previously discussed.
Following the defendant’s motor vehicle accident the plaintiff says that she visited him at hospital every day of the three months he remained in hospital. Whilst at the hospital, she would remain for a number of hours and assist the defendant with physical and emotional support. Whilst he was in hospital she also cared for the children and performed all household duties. Following the defendant’s discharge from hospital he was in a wheelchair. The plaintiff says that she was obliged to assist him with all activities including getting in and out of bed, dressing, showering and toileting, together with the preparation of all meals. The plaintiff said that some assistance was provided by Domiciliary Care but that she was the primary carer for the defendant. Although his injuries improved over time she was still providing substantial care for the defendant at the time of separation as well as looking after the children and the family home.

The defendant, in his Defence, denies these matters and in particular says that assistance was provided by Domiciliary Care and the District Nurse attending at the Davoren Park property. Again, I was not assisted by evidence from the defendant on this topic.
The letter formulating the parties’ claim for damages is dated 21 October 2009. It was prepared by the parties’ personal injuries solicitors presumably with instructions from the defendant. It is consistent with the plaintiff’s evidence. In support of a claim for Wilson v McLeay damages, in the sum of $10,000 the formulated claim states:
My client’s partner, (I), attended upon him constantly during his first three months in hospital and on subsequent admissions.
In support of a claim for voluntary services in the sum of $128,310 it is stated:
Upon his discharge from hospital, (I) became our client’s full time carer, assisting him with every activity. He was unable to stand unassisted, or perform basic grooming and hygiene for himself.
The details of the care provided are set out in some detail in the formulated claim and it is noted that she provided, on average, at least six hours of care per day from the time the defendant was discharged from the Royal Adelaide Hospital until the parties separated in about December 2008.
I accept the plaintiff’s evidence on the topic of the assistance she proved to the defendant whilst in hospital and subsequently. The defendant’s Defence asserts that the plaintiff received damages for these voluntary services. The plaintiff gave evidence that the only sum she received was the amount of $15,000 for loss of consortium. This is confirmed by the correspondence from the parties’ personal injury solicitors. Loss of consortium is a separate head of damage to voluntary services. The defendant claimed Wilson v McLeay damages for the plaintiff’s hospital visits to him and damages for voluntary services provided by the plaintiff to him. These heads of damage formed part of his claim for past loss not hers.[8] The plaintiff has made a direct contribution to the acquisition of damages for those heads of loss which accounted for approximately 8% of the claim as formulated. Whilst I do not have information about the breakdown of the ultimate settlement which was somewhat less than the formulation it is probable that the global sum would have included compensation for those two heads of past loss.
[8] Griffiths v. Kerkemeyer (1977)139 CLR 161; Beck v Farrelly (1975) 13 SASR 17; Wilson v McLeay (1961) 106 CLR 523
Since separation the plaintiff has had the primary care of the children and the primary responsibility for supporting them albeit the defendant has made some contribution by way of access visits and payment of child support. I note however that the defendant has not had access to the children since mid-2011 nor has he paid any child support since that date.
The parties’ current financial position
The plaintiff gave evidence that she lives in a rental property and that she spent the $15,000 she received by way of loss of consortium on household furniture and re-establishing herself and the children following separation. Her only income is Government benefits. Given her lack of qualifications, previous work history, the age of the children and the length of time the plaintiff has been out of the workforce I consider her future earning capacity to be limited.
The circumstances of the defendant’s current financial situation are less clear. The only information I have on that topic is comprised in the correspondence concerning the damages the defendant received, child support applications in the FMC and the defendant’s banking records with Westpac which were subpoenaed in this matter.
The defendant made an application to the Child Support Agency on 2 September 2010 seeking a decrease in child support payments. I have been provided with a copy of the decision of the Child Support Agency dated 23 September 2010 refusing his application for a change of assessment.[9] In the reasons for decision the existing assessments are set out as follows:
For the period from 9 March 2010 until 30 June 2012 the annual rate of child support payable by Mr E is $4,160. The assessment is based on an adjusted taxable income of $36,951 for Mr E and an adjusted taxable income amount of $13,778 for Ms K.
[9] Exhibit P2
The defendant sought a decrease to his adjusted taxable income to an estimated amount of $19,000. The reason for that is set out as follows:
Mr E applied under this reason as he submitted that after receiving a lump sum payment of $910,977.20 in February 2010 this amount had reduced. He has requested that the assessment of his income be based on the remaining $450,000. Mr E stated that the $450,000 was currently invested in a Westpac interest bearing account at 4.25% which he estimates would generate an income of $19,000 per annum.
Mr E’s application stated that since receiving the lump sum payout he had purchased a property at Renmark for $155,000, motor vehicle for $60,000, motor cycle for $40,000 and a boat for $10,000. Mr E said that he purchased the home in the Riverland to be closer to his children and he also purchased furniture for the home. Mr E further submitted in his application that he relied on some of the lump sum for his day to day living expenses, he is not entitled to Centrelink benefits and his extensive injuries render him unemployable.
The decision maker rejected the defendant’s application noting that, whilst he was entitled to arrange his financial affairs in any way he chose, the purchases that he made from his settlement moneys were not to assist in his rehabilitation or any special needs following the accident and that child support had priority over all commitments other than those necessary for self support. The decision maker was unable to be satisfied that the current rate of child support was unjust or inequitable or that special circumstances existed to warrant alteration of the current rate.
The most recent statement of the defendant’s financial circumstances is a statement completed by him on 6 July 2011 outlining his income, assets and liabilities for the purpose of child support.[10] That document stated that his total monthly income is $365 by way of interest and dividends. His monthly expenditure is stated to be $1,714.00. His total assets are said to amount to $274,000 comprising a cheque account of $40,000, other accounts of $10,000, his home at $155,000, a Ford motor vehicle of $33,000, a Harley Davidson $18,000, household furniture and effects $5,000 and something described as boat and “Nissa” $13,000. Attached to this document is a statement by the defendant that he purchased a take away food business in or about February 2011. He also attached a profit and loss statement for this business prepared by his accountant “for the first quarterly BAS”. He states that from February 2011 to 31 March 2011 the business made a loss of $15,673.95, that he does not currently take a wage from the business and employs staff to assist him. The business is not listed as an asset in the defendant’s list of assets nor is any bank account associated with the business. The plaintiff has no way of verifying this information given the defendant’s attitude towards these proceedings.
[10] Exhibit P3
The defendant plainly suffered significant and permanent injuries as a result of his motor vehicle accident. It appears from the formulated claim that he requires ongoing medical treatment, including the possibility of further surgery, regular physiotherapy, psychotherapy and medication. He also requires future care in the form of assistance for domestic duties, personal supervision of some activities, home handyman assistance and various aids and equipment for activities of daily living. These matters formed part of his claim for compensation and were the subject of the formulated claim that I have referred to. It is likely he received a substantial award of damages for this head of loss. There is however no indication in his statement of financial circumstances that he is spending substantial amounts on those matters. The only relevant item of expenditure is a claimed monthly expenditure of $300 for medical and pharmacy expenses. The balance of his stated monthly expenditure of $1,414 relates to rates, utilities, car and living expenses.
This statement of financial circumstances does not sit comfortably with the defendant’s Westpac Banking records. It is of course possible that he has other accounts with another bank. There may be accounts associated with his take away business. The plaintiff does not know. She fears that he is deliberately hiding or dissipating his assets to avoid paying child support and this claim. An examination of the bank records suggests that this is not an unrealistic concern.
The Westpac records indicate that on the day the defendant signed the financial circumstances document for the FMC, 6 July 2011, he had two accounts; a Choice account with a balance of $1859.43 and an E-Saver account with a balance of $35,894.46.[11] Looking at these accounts for the month prior to the financial circumstances document, June 2011, it can be seen that the defendant transferred the sum of $20,000 in four transactions of $5,000 from the E-Saver account to the Choice account. No deposits were made into the E-Saver account. The transfers from the E-Saver account constituted the bulk of the payments into the Choice account for June 2011. There was only one further deposit of $100 the source of which cannot be identified. The defendant withdrew a total amount of $18,978.28 from the Choice account during the same period in varying amounts throughout the month. This pattern is repeated during other months with transfers from the E-Saver account to the Choice account followed by substantial cash withdrawals from that account.
[11] Exhibits P7 & P8
The E-Saver account was opened on 18 February 2010 with a deposit of $779,498.91. Presumably this is part of the defendant’s injuries settlement money. It is not know what happened to the balance of the settlement cheque – a sum of $131,478.29. This account balance was reduced to $0.50 by 18 November 2011. It can be inferred that some of this expenditure has been on assets. For example, there is a withdrawal of $151,920.91 on 22 March 2010 which correlates with the time at which the Defendant purchased his current residence. There are withdrawals which correlate with the vehicles he refers to in his statement of assets. Likewise there are some substantial withdrawals totalling approximately $80,000 in late January to mid-February 2011 that likely relate to the purchase of the take away business. The remainder of the initial deposit, conservatively an amount in the order of $350,000, has been taken out of the account in smaller sums over a period of approximately 21 months This is a monthly amount of about $18,000 – considerably in excess of the defendant’s stated monthly expenditure of $1714. The balance has not resulted in any apparent increase in the defendant’s assets.
Discussion
The parties had a lengthy relationship. Until they both ceased working they made equal contributions to the acquisition of assets albeit their assets were not substantial. Following the birth of their two children, I find that the parties continued to contribute equally to the joint finances although neither worked. I also find that the plaintiff fulfilled the primary parenting and housekeeping role within the family. Following the defendant’s motor vehicle accident, I find that the plaintiff continued as the primary provider of parenting and household activities but that she added to this extensive care for the defendant during the three months of his hospitalisation and the period following his release from hospital until the date of separation. Since the date of separation she has been effectively the sole care giver for the children given the limited role played by the defendant. Accordingly she has made very considerable contributions to the parties’ financial resources, to the children and to the defendant.
The principal asset is the defendant’s personal injuries claim settlement The value of the Nissan motor vehicle and the jointly owned furniture and effects is nominal. The defendant, in his defence, sets out his position as follows:
In answer to the whole claim the defendant states that:-
(a)     The plaintiff has been awarded and received damages for voluntary             services that she provided to the defendant as a result of the motor cycle          accident.
(b)     The plaintiff has made no direct or indirect financial or non-financial             contributions to the acquisition, conservation or improvement to the              balance of the award of damages received by the defendant as a result            of the motor cycle accident.
(c)     That the plaintiff’s contribution as a home maker and parent to the   children of the relationship and the defendant are not sufficient for a               division of the award of damages to the plaintiff.
(d)     To date the defendant has had to pay and will in the future continue to          pay for all of his living expenses and medical expenses from the   proceeds of the award of damages.
(e)     The defendant has no prospect of returning to employment as a result          of the injuries he received in the motor cycle accident.[12]
[12] Paragraph 13
As I have indicated above, the contentions in paragraph 13 (a) and (b) are incorrect. The plaintiff has not received damages for voluntary services provided to the defendant and she has made a direct contribution to the award of damages.
Further any part of the settlement moneys attributable to past loss such as medical and travelling expenses would through necessity come out of the parties’ joint finances. Those should be available for division between the parties without regard to the defendant’s future need for medical treatment or care.
I reject the contention set out at paragraph 13 (c). This is not correct as a matter of law and I refer to the principles that I have set out above and the authority for those principles. The difficulty with the nature of the principal asset is that outlined in paragraph 13 (d) and (e).
The defendant undoubtedly sustained very significant injuries requiring future medical treatment, future care and significantly limiting his already limited earning capacity. It appears however that not only is there is a prospect of his returning to employment he has in fact returned to some form of employment in that he has apparently purchased a fast food business. Should the business fail or the defendant experience further health difficulties I accept that his earning capacity is extremely limited. To that extent he is in a similar position to that of the plaintiff.
The formulated claim however indicates that the defendant was not seeking damages for past or future economic loss in the light of the fact that he was on a disability support pension at the time of the accident. Accordingly the payment was to compensate for non-economic loss and future care. It is therefore unclear to me whether the defendant will be forever precluded from receiving Centrelink benefits sufficient to cover his living expenses. This may depend upon his assets.
Doing the best I can with the limited information available to me it is my view that it is just and equitable to order the defendant to pay the plaintiff a lump sum by way of division of property. The quantum of that lump sum cannot be assessed with precision given the lack of information. I have decided that the total assets of the parties for division are approximately $946,000 albeit that it is possible that the defendant has dissipated some of those assets. Taking into account the matters I have canvassed above I consider that it is just and equitable to allow the plaintiff 30% of the assets. This is a sum of $283,000 less the $15,000 she has already received. I therefore assess the lump sum at $268,800. inclusive of interest.
Orders
The formal orders of the Court are:
1.     A declaration that the Plaintiff and Defendant were parties to a   domestic partnership within the meaning of the Domestic Partners                 (Property) Act (“the Act”).
2.     That the time for bringing these proceedings be extended to 31 August             2010.
3.     That the Defendant pay the plaintiff the sum of $268,800.
I shall hear the Plaintiff’s counsel on the question of the Injunction and the further declarations sought in the Statement of Claim.