Kalnins & Vollis
[2023] FedCFamC2F 159
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kalnins & Vollis [2023] FedCFamC2F 159
File number(s): PAC 2389 of 2021 Judgment of: JUDGE STREET Date of judgment: 17 February 2023 Catchwords: FAMILY LAW – PROPERTY – whether there was a de facto relationship – de facto relationship commenced 2007 and continued until December 2020 – property adjustment – just and equitable – orders for sale and division of relevant property Legislation: Family Law Act 1975 (Cth) pt VIIIAB; ss 4AA, 44(6), 75(2), 90RD, 90RG, 90SB, 90SF, 90SF(3), 90SK, 90SM, 90SM(3), 90SM(4)(a)-(c) Cases cited: Estate of Gardner [2019] NSWSC 1324
Fairbairn & Radecki [2002] HCA 18
Fitzmaurice & Woolridge[2020] FamCAFC 64
Hickey and Hickey and Attorney-General (Cth) (Intervener) [2003] FamCA 395
Piras v Egan [2008] NSWCA 59
Radecki v Fairbairn [2020] FamCAFC 307
Stanford & Stanford (2012) 247 CLR 108
Division: Division 2 Family Law Number of paragraphs: 95 Date of last submissions: 9 December 2022 Date of hearing: 17 and 18 November 2022 Place: Parramatta Counsel for the Applicant: Ms S Abdelraheem Solicitor for the Applicant: Khalil Family Lawyers Pty Ltd Counsel for the Respondent: Mr L Reeves Solicitor for the Respondent: Phillip A Wilkins & Associates ORDERS
PAC 2389 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS KALNINS
Applicant
AND: MR VOLLIS
Respondent
order made by:
JUDGE STREET
DATE OF ORDER:
17 February 2023
THE COURT ORDERS THAT:
1.Pursuant to s 90RD of the Family Law Act 1975 (Cth), the Court declares that the Applicant and Respondent were in a de facto relationship from 2007 to December 2020.
2.Pursuant to s 90SM of the Family Law Act 1975 (Cth), the de facto husband forthwith take all necessary steps and execute all necessary documents to cause the property situated at B Street, Suburb C (“B Street, Suburb C property”) to be sold by private treaty at the earliest possible date at a price to be agreed on between the parties, and failing such agreement the price be determined by the proper officer of the Real Estate Institute or their nominee, and that the proceeds of the sale be disbursed as follows:
(a)Payment of agent’s commission, advertising expenses and legal expenses of the sale;
(b)Payment of any money due and owing to the mortgagee;
(c)The net balance to be divided between the parties as follows:
(i)63.5% to the de facto wife; and
(ii)36.5% to the de facto husband.
3.That in the event the B Street, Suburb C property fails to be sold by private treaty within a period of 3 months hereof, then each party take all necessary steps and execute all necessary documents to cause the said property to be sold by auction at the earliest possible date at a reserve to be agreed upon between the parties and failing such agreement to be determined by the proper officer of the Real Estate Institute or their nominee, and that the proceeds of the said sale be disbursed as follows:
(a)Payment of agent’s commission, advertising expenses and legal expenses of the sale;
(b)Payment of any money due and owing to the mortgagee;
(c)The net balance to be divided between the parties as follows:
(i)63.5% to the de facto wife; and
(ii)36.5% to the de facto husband.
4.That on or before completion of the sale of the property the party residing therein will provide vacant possession, remove all items not included in the sale and ensure that the property is left in a clean state.
5.That other than as otherwise set out in these orders, the parties have the sole right, title and interest in any other property which is at the date of these orders in their possession, title or name and they shall be solely liable for and indemnify the other against any personal liabilities.
6.The parties may agree to proceed first by sale through auction and then if unsuccessful by private treaty.
7.The contract of sale terms are to be ordinary with 10% deposit, not to be released until settlement, six weeks for settlement through the vendor’s solicitor aware of these orders, to be effected through Company U.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Kalnins & Vollis has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET:
INTRODUCTION
These proceedings were commenced by the applicant on 5 May 2021 as a result of an alleged de facto relationship, seeking property orders including the sale of a property at B Street, Suburb C NSW and the division of a net balance 70 per cent to the de facto wife and 30 per cent to the de facto husband.
On 16 August 2021, the respondent filed a response to the initiating application, which sought a dismissal of the application. On 5 May 2022, this Court extended time pursuant to s 44(6) of the Family Law Act 1975 (Cth) (“the Act”) and fixed the matter for a final hearing.
Prior to the final hearing, the respondent filed an amended response, proposing a payment to the applicant of $160,000 and the removal of a caveat that had been placed by the applicant on the property.
THE HEARING
There was substantial agreement as to the value of the property pool, and a valuation was tendered in respect of the B Street, Suburb C property being $850,000. The parties agreed that, in the circumstances of this case, it was appropriate to treat the respondent’s superannuation as being part of the same single property pool.
The applicant’s case outline, effectively, sought an overall division of 55 per cent to 45 per cent in favour of the applicant, based on an alleged de facto relationship commencing in 2007 and continuing until 30 December 2020. The respondent, in his case of outline, sought an overall division of 20 per cent to the applicant and 80 per cent to the respondent. The respondent alleged that the de facto relationship commenced in early 2016, and alleged that the parties separated on a final basis on 12 April 2018. It was common ground that the applicant was living at the property from 2010 until 4 January 2021.
There are, effectively, two issues before the Court: the first being the duration of the de facto relationship, and the second being the contributions under s 90SM(4) of the Act.
In the course of cross-examination of the respondent, it emerged that there was a further $150,000 transferred to the respondent’s sister. The explanation in cross-examination for that transfer was that it was a loan and that it was made so that, if the respondent needed the same, the respondent could loan it again to help pay out the applicant. That $150,000 was identified by the applicant as an appropriate add back in respect of the property pool.
The applicant relied upon her affidavit dated 3 May 2022 and the financial statement which was marked Exhibit A. The respondent relied upon his affidavit dated 9 November 2022 and his amended financial statement which was marked Exhibit B. There was also tendered into evidence the following exhibits:
·Exhibit C, being the applicant’s tender bundle;
·Exhibit D, being the respondent’s bank statement which was sent to the Court via email;
·Exhibit E, being a valuation report for the B Street, Suburb C property;
·Exhibit F, being the Bank D account documents for an account ending in …63; and
·Exhibit G, being bank account statements for an account ending in …00.
CHRONOLOGY
A chronology in the matter, drawn from the applicant’s case outline and supplemented by evidence adduced during the hearing, is as follows:
DATE EVENT 1956 Respondent de facto husband is born in Country E. Now 65 years of age. 1957 Applicant de facto wife is born in Country F. Now 65 years of age. 1977 The applicant migrates to Australia and thereafter becomes an Australian citizen. 1980 The respondent migrates to Australia and thereafter becomes an Australian citizen. 1986 The applicant’s first son is born 1989 The applicant’s second son is born 1996 The respondent’s daughter Ms G is born 1998 The respondent purchases the property at B Street, Suburb C for approximately $180,000. Prior to the relationship The applicant has two children from a previous relationship.
The respondent has one child from a previous relationship.2007 Parties commence de facto relationship. The applicant and respondent work respectively as a public servant at Employer H and a Supervisor at Employer H and each earn approximately $50,000 p/a. May 2008 The applicant takes out a personal loan of $20,250 from Wespac and thereafter gives $15,000 to the respondent to assist in paying the mortgage for the B Street, Suburb C property. 21 May 2008 Letter from Westpac regarding a loan taken by the applicant to help the respondent pay his home loan. 2009 The applicant is granted a divorce from her previous partner. 2009 There is a Company J health card with the applicant, the applicant’s two children Mr K and Mr L, and the respondent listed 2009 The applicant receives approximately $39,000 from a worker’s compensation claim. 9 March 2010 The applicant pays out the balance of the Westpac personal loan, being $11,415.43. 21 April 2010 The applicant retains M Law Firm to represent her in the third party compensation claim and receives approximately $117,058.01 as settlement. May 2011 A Company N health card is produced with the applicant and the respondent both listed, together with the applicant’s son Mr L and the respondent’s daughter Ms G. 8 August 2012 A brochure is circulated in relation to a diamond ring 18 September 2012 The applicant applies for early release of funds from her superannuation to assist the respondent in paying the mortgage on the B Street, Suburb C property. The applicant receives $85,000 from Super Fund 1. 18 September 2012 The applicant’s Westpac Saver account is credited with a deposit from Super Fund 1 in the sum on $85,000 3 October 2012 The applicant makes two separate transfers, which include her said superannuation deposit, totalling $166,086.16 to the Bank D Home Loan account of the respondent, at which time the mortgage is consequently discharged. November 2012 The applicant provides the respondent $3,000 at his request as he asserts he needs to repay his daughter $3,000. 5 August 2014 The applicant transfers $7,000 to the respondent at his request. 6 March 2015 Newstart allowance application completed by the applicant. The relationship status is listed as partnered and currently living together. The relationship date is listed as 21 July 2007, and identifies the respondent. 2017 The parties buy a caravan and ute using $10,000 of the applicant’s $20,000 saving accumulated, including from gifts from the applicant’s family. 12 April 2018 Parties sign informal paperwork agreeing that the respondent transfer $300,000 to the applicant. Late 2018 The respondent receives a worker’s compensation payment in the amount of $250,000 as a result of a workplace injury.
The respondent says to the applicant words to the effect ‘if you feel like it [I am using your money] then lets end this relationship and you separate your income, I will pay you out and you will need to tell Centrelink’.
The respondent provides the applicant with a Centrelink form so that she could start receiving the pension as a single person.16 December 2018 The parties fill out and sign a Centrelink agreement declaring separation. Within a couple of weeks of separation The applicant contends that the parties recommenced their relationship. 10 December 2019 Internal deposit to Maxi Saver account ending …00 received in the amount of $230,000 28 December 2020 The respondent says to the applicant words to the effect ‘I will pay you $160,000 now, if you want more, you will have to move out in three to four weeks’. 30 December 2020 Date of separation asserted by the applicant. The applicant moves out of the B Street, Suburb C property and into her own premises. The applicant leaves $20,000 at the premises. 20 April 2021 The respondent’s Bank D account records a deposit in the amount of $150,000 and a withdrawal with the description “Loan repayment, Ms O” 21 April 2021 The respondent’s Bank D account ending …66 records a withdrawal in the amount of $50,000 with the description “Loan repayment, Ms O” 5 May 2021 The applicant commences the proceedings. 17 November 2022 Letter from the applicant’s solicitor to the respondent’s solicitor in respect of an alleged failure to give proper disclosure 18 November 2022 During the call in cross-examination, the respondent produces bank account details for Bank D account ending …63 18 November 2022 In answer to a call during cross-examination, the respondent produces bank statements for a Maxi Saver account ending …00 APPLICANT’S EVIDENCE
The applicant’s affidavit, dated 2 May 2022, identified a previous marriage from 1978 to 2005, and that the applicant has two adult children from this previous marriage. The applicant alleged that the parties commenced a de facto relationship in 2007, which developed into the applicant spending overnight time at the respondent’s B Street, Suburb C property after a few months. The applicant stated that this progressed to full-time cohabitation in 2008, following an invitation from the respondent for the applicant to move into the B Street, Suburb C property.
The applicant gave evidence regarding her financial and non-financial contributions and the de facto relationship with the respondent, including domestic contributions such as grocery shopping, cooking meals, and cleaning. The applicant stated that she cared for the respondent’s daughter from his previous marriage and that they became very close.
The applicant stated that, over the course of 3 separate transactions to the respondent, she provided $188,086.16 in financial contributions towards the B Street, Suburb C property. In this regard, the applicant identified that she took out several personal loans and a withdrawal of $85,000 from her superannuation fund to provide the funds for the mortgage over the Property to the respondent. On 3 October 2012, two transactions totalling $166,086.16 from the applicant to the respondent discharged the mortgage over the property. The applicant also detailed several other fund transfers to the respondent, including a request by the respondent for $7,000 on 5 August 2014, and $10,000 for the purchase of a caravan and a ute in 2017.
The applicant alleged that, in 2009, the respondent discussed obtaining a family private health insurance policy, listing the applicant, the respondent and the respondent’s daughter from a previous marriage. The applicant identified several family private health insurance policies over the course of the alleged de facto relationship which listed the applicant, the respondent and the respondent’s daughter from a previous marriage as being part of the one family plan.
The applicant, in affidavit evidence and before the Court, alleged that the respondent proposed to her in July 2012. The applicant identified the purchase of a ring in August 2012. The applicant alleged that the marriage paperwork was unable to be completed because the respondent did not provide divorce papers from his previous marriage.
The applicant identified a 2018 agreement between the parties which was allegedly the result of the respondent asking how much he owed the applicant. In this 2018 agreement, the respondent agreed to pay the applicant $300,000.
The applicant stated that the parties completed a declaration of separation on 16 September 2018. The applicant identified an agreement between the parties that the applicant should continue to live in the property with the respondent post separation because the applicant did not have any familial support in Australia and because she could not afford to move to another residence. The applicant alleged that this was because she had put all of her money from her compensation payment and superannuation early release into the property, and because the respondent alleged he was not in a position to pay her out.
The applicant identified that the co-habitation post separation saw her continue to make contributions to the relationship, such as preparing meals for the respondent and his daughter and grocery shopping. Similarly, the applicant identified that the respondent continued to assist in her care by driving the applicant to doctors’ appointments. The applicant stated that this, combined with the affection she received from the respondent, made her believe that the parties had reconciled.
The applicant referred to a knee injury sustained on 13 December 2019 and stated that the respondent adopted a carer’s role, assisting her with cleaning, shopping and driving the applicant to doctors’ appointments.
The applicant described an escalation in tensions between the parties in 2020, which culminated in an argument on 28 December 2020. As a result, the applicant alleged that she moved out of the property on 29 December 2020 without her belongings.
Regarding future needs, the applicant identified that she is currently living with her son from her previous marriage and that she is on a Centrelink disability pension. The applicant stated that she does not have any savings as a result of the financial contributions she made to the respondent over the course of the relationship.
RESPONDENT’S EVIDENCE
The respondent’s affidavit identified the acquisition of the B Street, Suburb C property jointly with his then wife in 1997 for $180,000, with a deposit of $80,000 and the rest by way of mortgage. The respondent paid out his wife in around 2002/2003 $150,000 borrowing against the house by way of mortgage which was then put in his sole name.
The respondent gave evidence that he and the applicant commenced living under the same roof at the B Street, Suburb C property in 2010, said to be part time, but described it as assisting the applicant after an injury she sustained in a car accident. The applicant commenced living full time with the respondent in 2012 “as friends”. The respondent alleged a brief relationship as a de facto couple in or around early 2016 and that they separated in 2017 and finally in April 2018. The respondent alleged cohabitation continued until the applicant moved out on 4 January 2021.
The respondent alleged that the applicant had lent him various amounts of money which he had paid back. The cross-examination of the respondent did not support the evidence in paragraph 10 of his affidavit as being true.
The respondent identified the history of the relationship and finances, including their respective assets, when the applicant started living with him. The respondent alleged he attended all household duties and purchased all our groceries and food requirements and cooked all meals. The respondent alleged contribution to the welfare of the applicant by attending to all her daily-care needs, became a registered carer for the applicant with Centrelink and earned an income in this way.
The respondent referred to discussions about getting married after receiving the certificate of title on 25 October 2012, after the mortgage was discharged by the payment of $160,000 from the applicant. The respondent referred to his mental health issues and a workplace injury in 2014. The respondent referred to not receiving an earning from Centrelink between 18 August 2018 and 5 March 2021. The respondent alleged his role was that of carer and that they had a very short relationship of no more than two to three years’ duration. The respondent alleged a final separation in or around late-2017 and that they lived under the same roof, separately and apart, until 4 January 2021. The respondent referred to a Centrelink form identifying a separation date of 12 August 2018. The respondent alleged they had separate bedrooms, did not socialise together, did not share bank accounts and that the applicant went on her own holidays.
The respondent alleged that the applicant insisted he sign the handwritten agreement dated 12 April 2018 and that this formalised their separation, although no payment was made by the respondent under the agreement.
In paragraph 49 of the respondent’s affidavit, it is alleged the applicant was informed that the respondent had managed to raise $250,000 from his sister so that the applicant could leave, as per the agreement allegedly drafted by the applicant. From cross examination it is apparent that the alleged raising of funds from his sister was untrue.
The respondent identified his current circumstances and future needs and that he is currently receiving the aged pension. The respondent identified his mental health issues, medication, regular counselling and treatment in relation to a medical condition. The respondent denied taking the applicant’s lock-box cash and contended the only amount he owed the applicant was $166,000.
APPLICABLE LAW
The definition of de facto relationship in s 4AA of the Act as follows:
4AA De facto relationships
Meaning of de facto relationship
(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 (see subsection (6));
(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple
(2) Those circumstances may include any or all 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 to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
(5)For the purposes of this Act:
(a)a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
(b)a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
There is a definition of breakdown in s4 of the Act that excludes death. Section 90SM(1)-(4) of the Act is relevantly as follows:
90SM Alteration of property interests
(1)In property settlement proceedings after the breakdown of a de facto relationship, the court may make such order as it considers appropriate:
(a)in the case of proceedings with respect to the property of the parties to the de facto relationship or either of them--altering the interests of the parties to the de facto relationship in the property; or
(b)in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the de facto relationship--altering the interests of the bankruptcy trustee in the vested bankruptcy property;
including:
(c)an order for a settlement of property in substitution for any interest in the property; and
(d)an order requiring
(i)either or both of the parties to the de facto relationship; or
(ii) the relevant bankruptcy trustee (if any);
to make, for the benefit of either or both of the parties to the de facto relationship or a child of the de facto relationship, such settlement or transfer of property as the court determines.
Note 1:The geographical requirement in section 90SK must be satisfied.
Note 2:The court must be satisfied of at least one of the matters in section 90SB.
Note 3:For child of a de facto relationship, see section 90RB.
(2)If a party to the de facto relationship dies after the breakdown of the de facto relationship, an order made under subsection (1) in property settlement proceedings may be enforced on behalf of, or against, as the case may be, the estate of the deceased party.
(3)The court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court must take into account:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i) to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii) otherwise in relation to any of that last-mentioned property;
whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i) to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii) otherwise in relation to any of that last-mentioned property;
whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(c)the contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship and any children of the de facto relationship, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the de facto relationship; and
(e)the matters referred to in subsection 90SF(3) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the de facto relationship or a child of the de facto relationship; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the de facto relationship.
…
Section 90SF(3) of the Act is as follows:
…
(2)The matters to be so taken into account are:
(a)the age and state of health of each of the parties to the de facto relationship (the subject de facto relationship ); and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether either party has the care or control of a child of the de facto relationship who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii)a child or another person that the party has a duty to maintain; and
(e)the responsibilities of either party to support any other person; and
(f)subject to subsection (4), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g)a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(i)the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the de facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party's role as a parent; and
(m)if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n)the terms of any order made or proposed to be made under section 90SM in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(o)the terms of any order or declaration made, or proposed to be made, under this Part in relation to:
(i)a party to the subject de facto relationship (in relation to another de facto relationship); or
(ii)a person who is a party to another de facto relationship with a party to the subject de facto relationship; or
(iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(p)the terms of any order or declaration made, or proposed to be made, under Part VIII in relation to:
(i)a party to the subject de facto relationship; or
(ii)a person who is a party to a marriage with a party to the subject de facto relationship; or
(iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(q)any child support under the Child Support (Assessment) Act 1989 that a party to the subject de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the subject de facto relationship; and
(r)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(s)the terms of any Part VIIIAB financial agreement that is binding on either or both of the parties to the subject de facto relationship; and
(t)the terms of any financial agreement that is binding on a party to the subject de facto relationship.
…
The applicant is seeking an alteration of property interests under s 90SM of the Act. The Court must be satisfied that it is just an equitable to make such an order. The Court must take into account the matters in s 90SM(4), including the matters so far as relevant in s 90SF(3) of the Act. The Court may make a declaration as to the existence of a de facto relationship under s 90RD of the Act and, in relation to that declaration power, the Court must be satisfied of the geographical requirement under s 90RG of the Act.
There is a length of relationship requirement in s 90SB of the Act and also a geographic requirement under s 90SK for the making of an order under s 90SM of the Act. The principles in relation to the approach of the four-stage process for alteration of property interests are correctly identified in the applicant’s submissions referred to below and is summarised, albeit referring to the married parties relevantly identical provisions.
In Hickey and Hickey and Attorney-General (Cth) (Intervener) [2003] FamCA 395 (“Hickey”) the Full Court discussed the preferred approach to the determination of a property settlement order:
39. The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s 79. That approach involves four inter-related steps. Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss.79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g), (“the other factors”) including, because of s.79(4)(e), the matters referred to in s 75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case. (Citations omitted)
In Fitzmaurice & Woolridge[2020] FamCAFC 64 (“Fitzmaurice”), the Full Court makes the point that Hickey is only a preferred approach:
19. These three aspects echo three of the four steps or stages developed in [Hickey]. Adherence to those four steps is not mandatory, and the approach “merely illuminates the path to the ultimate result” (see Norman & Norman [2010] FamCAFC 66 at [60]). Indeed in Martin & Newton [2011] FamCAFC 233; (2011) FLC 93-490 at 86,127, it was said of the four step calculus:
305. ... [T]hat approach is not legislatively mandated, and as the Full Court [in Hickey] said, is simply the preferred approach. This is because it will be sufficient, in most cases, to have regard to the overall justice and equity of the orders after determination of the asset pool, consideration of contributions and assessment of the relevant S75(2) matters.
The principles in relation to the existence of a de facto relationship are adequately summarised as follows. In Piras v Egan [2008] NSWCA 59, Campbell JA held at [146]:
146. The finding of not being satisfied that the plaintiff lived on a full-time basis with the Deceased in the relevant period is of central importance to whether a de facto relationship existed. It should be recalled that the list of “circumstances” in section 4(2) are reminders of matters that possibly might be relevant in deciding whether two people are in a de facto relationship, but do not state its essence. The essence is to be found in the definition in section 4(1). If two people do not “live together as a couple” they do not satisfy the definition of being in a de facto relationship, regardless of what might be the situation concerning the various “circumstances” listed in section 4(2).
The principles have also been summarised in Estate of Gardner [2019] NSWSC 1324 [20] – [44] Bell J.
These principles, in determining when the de facto relationship commenced, whether it existed, and when it ended, and the statutory framework are summarised by the Full Court in Fairbairn v Radecki [2022] HCA18 at [4-6], [28-31], [33], [38-39].
APPLICANT’S SUBMISSIONS
The applicant seeks an adjustment of property interests under pt VIIIAB of the Act. It was submitted that the applicant’s evidence was credible and consistent. It was submitted that the respondent was not a credible witness, was non-responsive and advocating his case. Reference was made to the Centrelink form as to the relationship commencing in 2007 and the parties residing together from 2010. The respondent’s evidence admitted an intimate connection but disputed the existence of a relationship as an example of advocating his case. Reference was made to the respondent’s evidence as to paying back money to the applicant in April 2018, which it was submitted did not occur. Reference was made to the 12 April 2018 agreement purporting to formalise separation and the alleged raising of funds by his sister. It was submitted that this was an agreement referrable to the applicant’s share of the B Street, Suburb C property. The applicant identified the inconsistency between what the respondent now contends should be paid as opposed to what was identified in the agreement.
Reference was made to the inclusion of the respondent in 2009 and his daughter in 2011 on the applicant’s private health insurance and that the respondent’s evidence in this regard was unresponsive and unsatisfactory.
It was submitted that the Court should accept the applicant’s evidence as to the length of the de facto relationship and also as to the contributions of the applicant during the relationship.
The submissions set out the asset pool including the $150,000 add back of funds transferred to the respondent’s sister’s account. The applicant seeks a 55% adjustment of the property pool, being a cash adjustment of $659,925.75, based on the updated balance sheet. The submissions addressed the lack of disclosure by the respondent, including belated production of bank account details. The submissions identified the unsatisfactory evidence of the respondent concerning receipt of $41,250 from Company P and the compensation payment amount of $176, 043.50.
The submissions addressed the undisclosed withdrawal of $150,000 by the respondent, in respect of records only produced in the course of the hearing, and the otherwise unsupported assertion of loans from his sister. It was submitted that the respondent’s evidence as to the loans from his sister was not credible.
It was submitted that increasing the size of the property pool for the notional add back property was still an option and that the Court is entitled to take a robust approach to the division of known property where there appears to be undisclosed property. It was submitted that the $150,000 was the subject of an attempt to hide the same by the respondent and should be added back to the pool. Reference was made to the statutory provision and the authorities concerning existence of a de facto relationship and in particular the significance of the informal agreement on 12 April 2018.
It was submitted that the de facto relationship commenced in 2007 when the applicant commenced living part time with the respondent and that she moved in with the respondent in 2008. Reference was made to the $15,000 payment by the applicant to the respondent on 22 May 2008 and the 3 deposits made on 6 July 2008 as well as the respondent’s evidence as to the applicant living “free in my house”. It was submitted that this admission by the respondent corroborates the applicant’s evidence as to the commencement of the relationship and moving in with the respondent in 2008.
Reference was made to the respondent’s affidavit and the providing of assistance to the applicant after her accident in 2006 and, thereafter, more regular visits and overnight stays as well as living full-time from 2012.
The applicant referred to the respondent’s evidence as to the applicant living “free in his house” and that this was a concession of residence consistent with the applicant’s evidence as to moving in with the respondent in 2008. Reference was made to the respondent’s evidence, when put to him, that the applicant was paying for groceries and bills and his response was that he had paid it back by paying her credit cards. The applicant pointed out there was no persuasive evidence as to the respondent paying back the applicant for any groceries or household bills that she had paid. The applicant contends that the parties were living together on a genuine domestic basis from 2008.
The applicant alleges the parties were intimate from 2007 and the concession by the respondent as to intimate connection.
The direct contributions by the applicant to the B Street, Suburb C property of $15,000 on 22 May 2008 and two transfers totalling $166,086.16 in October 2008 were said to be conceded by the respondent.
The applicant contended a high degree of mutual commitment to a shared life including; an alleged proposal in July 2012, completing a notice of intended marriage in August 2012 as well as the purchase of an engagement ring on 10 August 2012 by the respondent. The respondent conceded he paid for the ring and that the applicant was her protectee, under his wing, my team member, and the person I want to look after. The applicant submitted that the engagement ring was purchased for the purpose of marriage and not just as a dear friend as alleged by the respondent.
Reference was made to the inclusion of the respondent on the applicant’s health insurance in mid-2009 and inclusion of both the respondent and his daughter upon transfer to Company N health cover in May 2011.
The applicant’s application to Centrelink dated 6 March 2015 records the relationship as having commenced on 21 July 2007 and commenced living together from 13 February 2010. Reference was made to the respondent’s evidence as to not being partnered and the respondent’s evidence about his declaration of a de facto relationship in relation to Centrelink payments from 6 August 2015.
It was submitted that the applicant did provide care to the respondent’s daughter during their relationship. The applicant received Mother’s Day cards from 2009 to 2019, shopping activities for the daughter, was involved in her schooling, and provided the Company N health cover.
The applicant submitted that the parties publicly presented as a couple from 2007, including an engagement congratulations card from the respondent’s sister and postcards from friends and family.
Reference was made to the authorities as to when the relationship broke down and it was submitted the de facto relationship existed past the temporary separation in 2018 until 2 May 2020. The applicant referred to her evidence that the parties signed a Centrelink declaration of separation on 16 September 2018 and that despite the informal agreement on 12 April 2018, and the said declaration the parties remained in a relationship until at least 2 May 2020.
The applicant referred to detailed evidence as to the continuation of the relationship by; continuing to prepare meals, doing grocery shopping, including medication, the recommenced affection, the recommenced sharing of a bed, continuing to present as a couple, mutual caring and inclusion in future plans. The applicant moved out of the matrimonial home on 29 December 2020.
The applicant set out the four-part procedure to determine the application under s90SM. The first step being to identify the property, liabilities and financial resources of the parties as at the time of hearing. Secondly, to determine the contributions made by the parties, as defined in s 90SM(4)(a) to (c) of the Act and evaluate the effect of any proposed order upon the earing capacity. Thirdly, to evaluate the matters in s 90SF(3) of the Act so far as relevant and any other order under the Act affecting a party or child and any child support for a child of the relationship. Fourthly, that the Court must be satisfied that any order is just and equitable, pursuant to s 90SM(3), as per Stanford & Stanford (2012) 247 CLR 108. Reference was also made to the observations as to the four-step process illuminating the path to the ultimate statutory requirement not to make an order unless it is just and equitable to do so.
The applicant addressed the financial contributions in relation to s 90SM(4)(a) of the Act, the competing assets at the commencement of the de facto relationship in 2007 and weighing the initial contributions against all the contributions both financial and non-financial during the course of the de facto relationship. The disparity of the respondent’s possession of the B Street, Suburb C property was said to be equalised by the combined contributions of $181,086.16 by the applicant to that property and discharging the respondent’s mortgage over that property and also benefiting the respondent by extinguishing his liability to pay the mortgagee $500 per week. Reference was made to the applicant’s financial contribution by paying bills and groceries throughout the relationship. The applicant paid the respondent $3000 on 1 November 2012, $7000 on 5 August 2014, contributed $10,000 towards purchase of a caravan and ute in 2017 and left $20,000 cash at the B Street, Suburb C property when she moved out on 29 December 2020.
It was submitted that the applicant made significant non-financial contributions under s 90SM(4)(b) of the Act, including preparing meals and shopping. It was submitted that the applicant made contributions to the care of the respondent’s daughter Ms G in relation to s 90SM(4)(c). It was submitted no issue arises under s 90SM(4)(d) and that s 90SM(4)(f) and (g) were not applicable.
The applicant set out the factors under s 90SM(4)(e) of the Act so far as relevant in s 90SF(3) referring first the poor health and age of both parties. Reference was made to the disability support pension in the sum of approximately $550 weekly received by the applicant. Reference was made to the applicant having used $85,000 from her super in September 2012 towards paying out the mortgage on the B Street, Suburb C property.
The written submission concluded that the applicant should receive at least 55% and in oral submissions it was acknowledged that the addback on a 55% basis would about to $82,500 and that this would give rise to a percentage around 75%.
RESPONDENT’S SUBMISSIONS
In the respondent’s submissions it is agreed that there was at some time a de facto relationship for the purposes of the Act but it is alleged that it commenced in 2016 and ended in 2018.
The respondent seeks an order that he pay the applicant $160,000 and disputes the contributions made by the applicant. The respondent seeks to characterise the relationship as part time carer from 2007, then part time flatmates in 2010 and then full time flat mates for 2012. The respondent says that they were a couple from 2016.
It was submitted that the documentary record is of little assistance and was allegedly within the applicant’s authorship and control without input by the respondent.
It was accepted that the applicant discharged the respondent’s mortgage in 2012. It was submitted that the mother’s day cards from the respondent’s daughter were at best of marginal assistance.
The 2016 date was said to coincide with mutual discussion about wills, commencement of payment of credit card bills which ceased in early 2018. Reference was made to the applicant’s evidence ass a period of arguing prior to the April 2018 agreement. It was submitted it was surprising that concerns as to non-fulfilment of promises to get married, wills and sharing resources would arise after an alleged relationship of many years. It was submitted that the respondent was not committed to a shared life where finances were kept separate, where it was alleged each bought their own groceries, where the property was in the respondent’s sole name where the applicant took holidays without the respondent.
The respondent referred to the breakdown of a de facto relationship examined in Fairbairn & Radecki [2002] HCA 18 at [29] and alleged the coupledom reached a conclusion in the signed agreement of April 2018. It was submitted that there was only a relationship as a couple living together on a genuine domestic basis between 2016 and 2018. It was alleged that the friend later became a partner and that partnership ended and the parties remained in one house due to the respondent not wishing to see the applicant suffer homelessness.
It was submitted that the agreement was a decision to end the relationship and that the question is whether the parties resumed their coupledom. The submissions identified the parties’ relationship deteriorating again and finally separating in December 2020. The respondent contends that the seven year relationship referred to in the case outline dated 5 May 2022 was not an admission of a de facto relationship. It was submitted that in all the circumstances the relationship came to an end in April 2018.
The respondent accepted the property pool is as identified in the applicant’s submissions as para [13], save for the addback giving a total net figure of $1,049,865 available for distribution. The major assets are the respondent’s superannuation and the B Street, Suburb C property.
The respondent submitted that no adverse inference should be draw in respect of the respondent’s disclosure. The addback was disputed and authorities identified as usually taking the same up as a relevant factor under s 75(2) of the Act. It was submitted that if the $150,00 was disposed of to the benefit of the respondent exclusively it was a premature distribution of matrimonial assets and ought to be added to the pool and credited as already received to the respondent. It was submitted that the $150,000 was used to the benefit of both parties to repay loans and should not be the subject of an addback.
Under s 90SM(4)(a) of the Act, the B Street, Suburb C property was originally purchased by the respondent and his wife in 1997. It was submitted that the property was used as a home for both parties while they lived as a couple and on the respondent’s case as friends living under one roof. It was alleged the respondent repaid the borrowing of $15,000 in May 2008 although it was accepted the entire sum was not accounted for in the records in evidence. Reference was made to the $166,000 funds from the applicant used to discharge the mortgage in October 2012 but is was characterised as a loan yet to be discharged and as consideration to reside in the property.
Reference was also made to paid employment of the respondent and the suffering of an injury for which significant compensation was received in late 2016.
In relation to s 90SM(4)(b) of the Act, it was submitted that the respondent maintained the property and that no improvements were carried out.
In relation to s 90SM(4)(c) of the Act, it was submitted that due to the applicant’s injuries from 2006 the overwhelming homemaker duties fell to the respondent and that the respondent received a carer’s allowance. It was submitted that the care requirements for the respondent’s daughter was low.
As to the assessment of contributions it was accepted that the applicant made a significant contribution to the B Street, Suburb C property. It was submitted that the respondent made the overwhelming contribution to the welfare of the family. It was submitted that if the Court accepted cohabitation form 2010 to 2020 then the applicant’s contribution should be in the range of 35-45% based on the contention of a more significant contribution to the welfare of the family by the respondent. If the relationship was found to be 2016 to 2018 then a range of 20-25% was submitted to better reflect the contributions of the applicant.
Under s 90SF(3) of the Act it was submitted each party has a multitude of health complaints and that no adjustment was warranted given each have significant impairments.
As to whether any alteration of legal interests is just and if so the justice and equity of the ultimate division weight was placed on the agreement dated 12 April 2018. The respondent disputed the applicant’s evidence that the respondent dictated the terms of the agreement. It was submitted that an entitlement for the applicant of 37.5% was appropriate in all the circumstances if in a relationship since 2007 and otherwise if a de facto relationship for 2 years a property division of 25% would be just and equitable.
BALANCE SHEET
The applicant’s balance sheet, in the applicant’s submissions dated, 25 November 2022, agreed with by the respondent, except for the add back, is as follows:
Property interests, superannuation and financial resources Description Ownership Applicant’s Value Respondent’s Value ASSETS 1 B Street, Suburb C Respondent $850,000 $850,000 2 Bank D Respondent $200 $200 3 Company Q Shares Respondent $3,500 $3,500 4 Motor Vehicle 1 Respondent $15,000 $15,000 5 Household Contents Respondent $5,000 $5,000 6 Westpac Choice Applicant $40 $40 7 Westpac eSaver Applicant $1,325 $1,325 8 Company Q Shares Applicant $24,489 $24,489 9 Company R Shares Applicant $376 $376 10 Company S Shares Applicant $1,635 $1,635 11 Motor Vehicle 2 Applicant $16,000 $16,000 12 Household contents Applicant $5,000 $5,000 Assets subtotal $922,565 $922,656 ADDBACKS 13 Money transferred to Respondent’s sister’s account on 20 and 21 April 2021 Respondent $150,000 NK Addback subtotal $150,000 NK LIABILITIES 14 Bank T credit card Applicant $2,500 NK 15 Bank D Visa Respondent $1,200 $1,200 Liabilities subtotal $3,700 $1,200 SUPERANNUATION Name of Fund Type of Interests Member Applicant’s Value Respondent’s Value 16 Super Fund 2 Accumulation Respondent $131,000 $131,000 Superannuation subtotal $131,000 $131,000 TOTAL (assets – liabilities) $1,068,865 $921,456 TOTAL (assets – liabilities + superannuation) $1,199,865 $1,052,456 FINDINGS
The applicant was a credible witness in relation to her evidence notwithstanding the skilful cross-examination by Mr Reeves of Counsel. The Court prefers the applicant’s evidence where in conflict with that of the respondent who the Court finds was an unsatisfactory and unreliable witness. The respondent’s unresponsive evidence, advocating of his case, failure to make proper financial disclosure and false evidence as to loans and alleged repayments materially undermines the respondent’s credit. The applicant’s evidence was largely corroborated by contemporaneous documents to which the court will further refer.
The most powerful evidence in the present case in respect of the issue of the length of the de facto relationship is the document brought into existence on 12 April 2018 signed by both parties recording that as from 12 April 2018, the parties:
…settled on a figure of 300,000 (being my share of the property, [B Street, Suburb C]) upon this amount being paid, some time from today, therefore I will have no further claims on this property.
The document is powerful corroborating evidence of the existence of a de facto relationship, which the Court finds commenced in 2007, consistent with the applicant’s evidence. The Court finds that the value of the property in 2018 was, in fact, the subject of steps taken by the applicant and the respondent to obtain an estimated valuation and was almost a half of that valuation. The document is important because it is also inconsistent with the respondent’s case of the very substantial sum of approximately $166,000 being provided in 2012, being a loan. The document is not one that describes any loan. It does not identify the sum of $166,000. The language, “share of the property”, which was signed by the respondent, is entirely consistent with a document, being a recognition of a substantial duration of a de facto relationship. The informal settlement sum of $300,000 is inconsistent with the respondent’s contention of only a brief two-year relationship a de facto relationship.
Further, the respondent, in his evidence, failed to identify any compelling features or indicia of the kind identified in s 4AA of the Act that commenced in 2016 and had not, in fact, been in place from at least 2010 when the parties were living full-time together. The amount of $300,000 is consistent with the applicant’s case and is inconsistent with the respondent’s case. But more importantly, the parties did not, in fact, act on the intention identified in the document dated 12 April 2018. No such payment, as identified in that document, was made by the respondent. Nor did the parties act on the Centrelink declaration in 2018 so that the Court finds that the de facto relationship continued. The parties continued their coupledom. Given the financial contributions by the applicant it is not correct to describe the parties as having kept their finances separate. The Court, having accepted the applicant’s evidence, finds that both parties purchased groceries for de facto family and continued to live in a genuine domestic relationship after the 12 April 2018 document and after 2018 Centrelink declaration. The Court finds that the de facto relationship continued as alleged by the applicant up until 30 December 2020.
In relation to the respondent’s failure to make proper financial disclosure, the description of the loan in the two payments of $100,000 and $50,000 to the respondent’s sister was one correctly described by the applicant as having been made up. The proposition that the respondent made the payments so that if he needed the loan again, he could obtain those funds to pay out the applicant, reflects a deliberate undisclosed dissipation of assets. Taking into account the failure to make proper financial disclosure, the court readily infers that the $150,000 was, in fact, a deliberate secretion of the respondent’s funds. The respondent was an unimpressive witness and demonstrated a continuing enthusiasm to be unresponsive to the questions asked and sought to advocate his own case. This advocating of the respondent’s case continued despite two warnings by the Court as to the impact on the assessment of his credit.
The evidence the respondent gave in paragraph 49 of his affidavit that he was informed on 4 January 2021 that his sister managed to raise $250,000 to pay out the applicant was, the Court finds, untrue. Part of that $250,000, unquestionably, were funds of the applicant that he had transferred to his sister under the label of being a loan. There was no proper evidence in respect of that loan in the respondent’s affidavit. The Court rejects the respondent’s evidence that his sister loaned him moneys. The Court finds that the respondent advanced assertions about his sister raising 250,000 to pay out the applicant that were untrue. The respondent also, in his affidavit, in paragraph 10, made assertions that he had paid back moneys lent by the applicant to him. Paragraph 10 goes, so far as to say that he paid her in April 2018, which finally severed their relationship. There was no such payment made in April 2018 and the affidavit evidence in that regard was untrue. There was no severing of the relationship at that date. The intention identified in the April document was not acted upon by either party. They continued to live under the same roof. The de facto relationship continued.
The Court rejects the respondent’s attempted characterisation of the relationship up until 2016 as being that of a friend. The Court rejects that the credit card payments in 2016 up to 2018 reflect the duration of the coupledom or that the discussion of wills supports the respondent’s alleged limited duration of the de facto relationship. The Court does not accept that the evidence as to arguments in 2018 supports the de facto relationship as having come to an end. The Court rejects the respondent’s evidence as to the relationship being one of carer and not a genuine domestic relationship from 2007 until December 2020. The Court has taken into account that the applicant, in fact, made admissions of an intimate relationship with the applicant, the fact that he wanted to look after her, and wanted her to feel “that was her house”. The Court rejects the respondent’s evidence that he performed all household duties, purchased all groceries, paid the applicant back for expenses, ended the de facto relationship in 2017 or 2018.
The Court accepts the applicant’s submissions and prefers the applicant’s evidence as to the existence and duration of the de facto relationship from 2007 until December 2020. The Court has taken into account the s4AA and having regard to all the circumstances finds the parties had a relationship as a couple living together on a genuine domestic basis from 2007 until December 2020. The Court has accepted the applicant’s evidence as to the circumstances and in particular as to the duration of the relationship, the part-time and then full time sharing of their common residence as a couple, existence of intimacy, significant financial interdependence in relation to funds provided by the applicant to the respondent, mutual financial support, shared use of the B Street, Suburb C property, existence of a mutual commitment to a shared life, care and support for the respondent’s child and for the applicant’s adult child and the family and social recognition of the parties as a couple. The Court has had regard the relationship notifications to Centrelink.
The Court finds that the statutory geographic and time requirements have been met and that this is an appropriate matter for a declaration as sought by the applicant as to the duration of the de facto relationship.
In relation to the four stage property process under s 90SM of the Act the Court finds that the assets at the time of hearing are as identified in the above balance sheet. At the time of hearing neither party has a future working capacity, both have significant health needs and both are in receipt of a pension.
The Court accepts the applicant’s submission that there should be an add-back of $150,000 in relation to the respondent’s share of that pool. This means the total asset pool is $1,199,865 of which 55% sought by the applicant amounts to $659,925. The respondent’s 37.5% of that asset pool amounts to $449,949.
In relation to s 90SM(4) of the Act, which the Court has taken into account and accepts the applicant’s submissions and prefers the applicant’s evidence as to the making of substantial financial and non-financial contributions by the applicant over the duration of the de facto relationship. The Court has taken into account the parties competing assets at the commencement of the relationship and weighed those initial contributions against all the contributions both financial and non-financial during the course of the de fact relationship. The Court accepts that the possession of the B Street, Suburb C property was substantially equalised by the combined financial contributions of the applicant in the sum of $181,086.16 which relevantly also included almost the whole of the applicant’s superannuation. The financial benefit to the respondent also included the discharge of his mortgage and cessation of weekly mortgage payments. The Court finds both parties maintained the B Street, Suburb C property. The Court accepts that the applicant provided other financial contributions including paying for groceries and expenses as submitted by the applicant. The Court accepts that the respondent also made financial and non-financial contributions to the property of the parties and to the welfare of the family constituted by the parties to the de facto relationship.
The Court finds that there were significant non-financial contributions by the applicant to the welfare of the family constituted by the parties to the de facto relationship including preparing meals and shopping and in relation to care, for a limited period, of the respondent’s daughter. Neither party now has an earning capacity that would be affected by the proposed orders.
The Court has had regard so far as relevant to the s 90SF(3) considerations, picked up by s90SM(4)(e) of the Act, where both parties are of poor health, similar age, unable to work and for the applicant in receipt of a disability pension and the respondent an aged pension. The Court has identified the property of the parties in the above balance sheet and that the applicant has no superannuation substantially due to the payments made to discharge the respondent’s mortgage. There is no child or order in relation to a child that is relevant to the third stage of evaluation. The applicant is currently living with her son, which the Court infers is rent free and the respondent will have to move out of the B Street, Suburb C property for the purpose of sale of the same. The consequence of the orders to be made under s 90SM of the Act will not deprive either party of a standard of living that is reasonable in all the circumstances.
The Court turns to consider whether it is just an equitable to make an order affecting the parties’ property interest. Given the evidence of the applicant which the Court has accepted, the statutory considerations and submissions of the applicant which the Court has accepted as to duration of the relationship and significant financial and non-financial contributions, including welfare of the family constituted by the parties to the de facto relationship referred to above the Court is satisfied that it is just and equitable to make an order altering the property interests of the parties.
The Court is satisfied that the appropriate order, which would be just and equitable is for an alteration of the property interests so that the applicant effectively receives 45 % of the asset pool which amounts to $539,939. The respondent with his add back and super has approximately $280,000. The only asset available to meet the property division in favour of the applicant is by realisation of the B Street, Suburb C property valued at $850,000. The Court accepts the applicant’s submissions that there should be a sale of the property at B Street, Suburb C.
If the Court orders 63.5% of the sale proceeds of the B Street, Suburb C property to be paid to the applicant that amounts to approximately $539,750. This equates with the respondent receiving 36.5% of the sale proceeds amounting to $310,250 which added to the respondent’s $280,000 amounts to $590,250 approximately being available to the respondent. The Court has taken into account the other assets and liabilities of the parties identified, and their likely future needs and has taken into account the disability pension being received by the applicant and aged pension being received by the respondent. The Court appreciates there is a minor $189 difference between $539,939 and 539,750, and there are sale costs to be met by the parties jointly and that a higher or lower sale price may occur. Nonetheless, given the above findings, the Court is satisfied that an order that the applicant receive 63.5% of the net sale proceeds of the B Street, Suburb C property is in all the circumstances just and equitable and the appropriate order on the findings made in this case. The Court has also made orders giving flexibility to the parties as to the method of sale and to ensure standard terms of settlement to be effected through the vendor’s solicitor via Company U and that the solicitor is aware of these orders.
I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street. Associate:
Dated: 17 February 2023
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