MacKinnon & Talbot - [2022] FedCFamC2F 1738

Federal Circuit and Family Court of Australia
(DIVISION 2)
MacKinnon & Talbot [2022] FedCFamC2F 1738

File number(s): SYC 3345 of 2017

Judgment of: JUDGE MORLEY

Date of judgment: 16 December 2022

Catchwords: FAMILY LAW – property – final property settlement orders sought by Applicant – Respondent’s case that it is not just and equitable to make any property settlement orders – previous contested de facto threshold proceedings conceded by Respondent – strong inference that Applicant evaded income taxation for several years – resultant issues of credit with each party – Respondent holds significant portion of asset pool – Applicant’s contributions inter alia as homemaker and by renovations to Respondent’s real property including pre-cohabitation – consideration of contributions made pre-cohabitation – just and equitable to make an adjustive order.

Legislation:
Evidence Act 1995 (Cth) s 50

Family Law Act 1975 (Cth) ss 90SF, 90SM, 90SN, 117

Cases cited:
Bacall & Zagar [2020] FamCA 350

Beneke & Beneke [1996] FamCA 82

Dickons & Dickons [2012] FamCAFC 154

Fields & Smith [2015] FamCAFC 57

Fontana & Fontana [2018] FamCAFC 63

G and G [1984] FamCA 60

Grier & Malphas (2017) 55 Fam LR 107

Hamilton & Thomas [2008] FamCAFC 8

Hickey & Hickey & Attorney-General for the Commonwealth of Australia [2003] FamCA 395

Hsiao v Fazarri [2020] HCA 35

In the Marriage of Harris (1991) 104 FLR 458

In the Marriage of Nemeth [1987] FamCA 12

In the Marriage of Robb (1994) 18 Fam LR 489

Jabour & Jabour [2019] FamCAFC 78

Jones & Dunkel (1959) 101 CLR 298

Lozanov & Lozanov [1994] FamCA 60

Olliver & Olliver [1978] FamCA 24

Sedgwick & Lind [2021] FamCA 605

Stanford & Stanford (2012) 247 CLR 108

Whiton & Dagne [2019] FamCAFC 192

Zappacosta & Zappacosta [1976] FamCA 56

Division: Division 2 Family Law

Number of paragraphs: 268

Date of last submission: 5 July 2022

Date of hearing: 31 March 2021, 1 April 2021

Place: Sydney

Solicitor for the Applicant: Mr Brown of Browns the Family Lawyers

Counsel for the Respondent: Ms Kennedy

Solicitor for the Respondent: Windsor Law Group
ORDERS

SYC 3345 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR MACKINNON

Applicant

AND:
MS TALBOT

Respondent

order made by:

JUDGE MORLEY

DATE OF ORDER:

16 Decmeber 2022

THE COURT ORDERS THAT:
1.Pursuant to section 79 of the Family Law Act 1975 (Cth):
(a)That by 4:00PM on 16 April 2023, the Respondent pay to the Applicant the sum of $159,742.
(b)In the event that the Respondent defaults in complying with order 1(a) herein, the Respondent shall forthwith sign all documents and instruments and do all things necessary to list for sale the property at B Street, Suburb C in the State of New South Wales (‘the B Street, Suburb C Property’) at a listing price recommended to her by a real estate agent and shall proceed to a sale of the B Street, Suburb C Property at a sale price recommended to her by a real estate agent and following such sale the proceeds of sale shall be applied as follows:
(i)In adjustment of rates on settlement;
(ii)In payment of agent’s commission (if any) on sale;
(iii)In payment of legal and all other proper costs of sale;
(iv)In payment of a sum sufficient to discharge the registered mortgage over the B Street, Suburb C Property;
(v)In payment to the Applicant of the sum of $159,742 together with any interest thereon under the Family Law Act 1975 (Cth);
(vi)The balance then remaining to the Respondent.

(c)That in the event that the B Street, Suburb C Property does not sell by private sale within three months from the date of its initial listing then the Respondent shall sign all documents and instruments and do all things necessary to list the B Street, Suburb C Property for sale by public auction with an auction agent agreed upon between the parties, at a reserve price recommended to her by the auction agent and shall proceed to a sale at a sale price recommended to her by the auction agent and the Respondent shall be solely responsible for all costs and expenses of the auction payable prior to the auction sale and following such sale the proceeds of sale shall be applied as provided for in order 1(b).
(d)That in the event that order 1(c) operates and the B Street, Suburb C Property does not sell by public auction in accordance with order 1(c) then the B Street, Suburb C Property shall be resubmitted for sale by private treaty in accordance with the provisions of order 1(b) hereof and the B Street, Suburb C Property shall be resubmitted for sale by public auction at six (6) monthly intervals from the last public auction and be resubmitted for sale by private treaty between such auctions, until the B Street, Suburb C Property shall be sold and upon such sale either by public auction or private treaty the proceeds of sale shall be applied as provided in order 1(b) hereof.
(e)That the Applicant is the sole owner in law and in equity as between himself and the Respondent of all real property, personal property, financial assets and financial resources currently in his power, possession or control other than as dealt with specifically elsewhere in this order, and including, but not limited to, his Westpac Bank account ending #...80, his cars and motorcycles, his personal belongings, and his interest in the Super Fund 1.
(f)That the Respondent is the sole owner in law and in equity as between herself and the Applicant of all real property, personal property, financial assets and financial resources currently in her power, possession or control other than as dealt with specifically elsewhere in this order, including but not limited to, the B Street, Suburb C property, the Motor Vehicle 1, her Commonwealth Bank account ending #...61, and her personal belongings, the Talbot superannuation plan self-managed superannuation fund, and her interest in the Super Fund 2.

2.That in the event that either party refuses or neglects to comply with any part of this order in relation to the execution of any deed, instrument or document the Court appoints and authorises pursuant to section 106A of the Family Law Act 1975 (Cth) the Registrars of the Federal Circuit and Family Court of Australia to execute such deed, instrument or document in the name of the party who so refuses or neglects and further appoints those Registrars to do all acts and things necessary to give validity and operation to the deed, instrument or document.

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 MacKinnon & Talbot has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MORLEY:
Introduction

These Reasons for Judgment relate to the final hearing of the Applicant’s property alteration application under section 90SM of the Family Law Act 1975 (Cth) (‘the Act’) arising from the breakdown of his de facto relationship with the Respondent.
The Applicant seeks that the Respondent pay to him a sum equal to half of the net property pool of the relationship. The Respondent seeks that no order altering the parties’ interests in property be made.
The Applicant is Mr MacKinnon (‘the Applicant’). The Respondent is Ms Talbot (‘the Respondent’).
The Applicant asserts that the parties commenced cohabitation variously in May or June 2009. The Respondent asserts they commenced cohabitation in August 2009. In both cases, it is asserted that the cohabitation commenced when the Applicant moved to reside with the Respondent and her son, Mr D, at the Respondent’s home at Suburb E. In January 2010 the parties moved to reside at B Street, Suburb C.
The parties separated between about May/June 2014 and August 2014 and are in agreement that they separated on a final basis in July 2015.
It is relevant to record that Applicant asserts that the parties met and began a social relationship in 2004, whilst the Respondent asserts they met and commenced a social relationship in 2005. It is relevant because of that part of the Applicant’s case that asserts relevant contributions by him to property then-owned by the Respondent during the period from the parties meeting until they commenced cohabitation.
When the parties met, the Respondent was residing with Mr D in her own Suburb E property and the Applicant was residing at Suburb F. The Applicant moved from Suburb F to Suburb G in 2006.
The Respondent and D resided in Country H, where the Respondent was employed as a medical professional, from early 2008 until early 2009. They were visited on occasions in Country H by the Applicant.
Throughout the relevant period, the Applicant was employed on various bases as a construction worker and the Respondent was employed as a medical professional, having graduated from J University with a Bachelor’s degree in 1987.
The Proceedings
These proceedings were commenced by the Applicant filing an Initiating Application on 1 June 2017, to which the Respondent responded on 4 September 2017.
The Applicant’s application asserted a de facto relationship between the parties between June 2009 and July 2015. The Respondent’s Response sought that the Applicant’s application be dismissed on the basis that the parties were never in a de facto relationship and that the Court, therefore, had no jurisdiction to alter property between the parties.
At the first mention of the matter before the Court, the matter was listed for a threshold jurisdiction hearing on 25 and 26 July 2018 on the issue of whether or not the parties had at any time being in a de facto relationship.
On 26 July 2018, an order was made by consent that:
the parties were in a de facto relationship for more than two years
and the matter was listed for final hearing on 29 and 30 November 2018.
The final hearing did not proceed, and on 29 November 2018 the matter was relisted for final hearing on 8 and 9 October 2019, though it was subsequently vacated at the request of the parties and listed for an interim hearing on 23 May 2019.
The interim hearing did not proceed and the matter was adjourned for mention before me on 2 July 2019, on which occasion orders were made by consent for the preparation of experts’ reports addressing valuation, and the matter was listed for call over on 26 September 2019.
At the call over, the matter was listed for final hearing for the third time on 1 and 2 October 2020. Again, the matter did not proceed to hearing as the parties were not in a position to conduct the final hearing on 1 October 2020. Further orders were made by consent addressing valuation, and the matter was listed for mention and directions on 25 November 2020 (later administratively adjourned to 23 February 2021) and listed for final hearing for the fourth time on 31 March and 1 April 2021.
The final hearing occurred on 31 March and 1 April 2021 and judgment was reserved.
Judgment was ‘unreserved’ by way of that order being vacated on 6 June 2022 in consequence of the filing of an Application in a Proceedings filed for the Applicant and listed for interim hearing on 2 August 2022. The parties then forwarded consent orders to Chambers prior to the interim hearing, and on 5 July 2022 the interim hearing was vacated, the Application in a Proceedings was withdrawn and dismissed and judgement in relation to the final hearing was again reserved. This is that judgment.
At the final hearing, the Applicant was represented by his solicitor-advocate, Mr Brown and the Respondent by Ms Kennedy of Counsel.
The Material Relied Upon by the Parties
The Applicant relied upon the following material:
(1)Case Outline Document dated 26 March 2021 prepared by Mr Brown;
(2)Initiating Application filed 1 June 2017;
(3)Affidavit of the Applicant sworn 26 September 2018 and filed 27 September 2018 (‘the Applicant’s trial affidavit’);
(4)Affidavit of the Applicant sworn 25 August 2020 and filed your 28 August 2020 (‘the Applicant’s supplementary affidavit’);
(5)Affidavit of Dr K (the Applicant’s treating medical specialist) affirmed 28 September 2020 and filed 30 September 2020;
(6)Financial Statement of the Applicant sworn or affirmed 25 August 2020 and filed 28 August 2020;
(7)The Applicant’s tender bundle, being the documents referred to in that regard in the Applicant’s trial affidavit;
(8)The Applicant’s supplementary tender bundle; and
(9)The Applicant’s further supplementary tender bundle.
Though the documents in the Applicant’s tender bundle, supplementary tender bundle, and further supplementary tender bundle were not marked as exhibits, they were patently relied upon by the Applicant as evidence in his case as explicitly detailed by Mr Brown at the commencement of the hearing, and without objection in that regard by the Respondent. As the same approach was taken by the Respondent through her counsel at the start of the hearing, there is no procedural unfairness to the other party.
The Applicant also relied upon the following exhibits:
(1)Exhibit A4 – document on the letterhead of the Australian Taxation Office evidencing a debt owed to the ATO by the Applicant of $39,729.52, undated; and
(2)Exhibit A5 – bundle of statements for the Respondent’s Virgin Australia credit card ending #...79.[1]
[1] A1 to A3 were marked as exhibits in the threshold hearing in 2018.
The Respondent relied upon the following material:
(1)Case Outline Document prepared by Ms Kennedy and filed 30 March 2021;
(2)Response filed 4 September 2017;
(3)Affidavit of the Respondent affirmed and filed 30 October 2018 (‘the Respondent’s trial affidavit’);
(4)Affidavit of the Respondent sworn and filed 28 August 2020 (‘the Respondent’s supplementary affidavit’);
(5)Financial Statement of the Respondent sworn and filed 2 September 2020;
(6)The Respondent’s tender bundle, being the documents referred to in that regard in the Respondent’s trial affidavit;
(7)The Respondent’s addendum tender bundle; and
(8)The Respondent’s supplementary tender bundle, which included documents referred to as annexure is and as exhibits in each of the Respondent’s affidavits.
Though the documents contained in the Respondent’s tender bundle, addendum tender bundle, and supplementary tender bundle were not marked as exhibits, they were patently relied upon by the Respondent as evidence in her case, as clearly identified by her counsel, Ms Kennedy, at the start of the hearing and without objection in that regard by the Applicant.
The Respondent also relied upon Exhibit R1 – a document headed “Property Contributions” limited to use as an aide memoir for the court.
The Competing Proposals of the Parties
By a minute of order contained in the Applicant’s case Outline Document he sought the following orders:
(1)That the Respondent pay the Applicant the sum of $660,900 within 42 days of the date of final order, and the Respondent be declared the sole owner to the exclusion of the Applicant of the property known as and situate at B Street, Suburb C, NSW.
(2)That except as otherwise specified in the order, each party be declared the sole owner in law and equity of all items of property and financial resources presently in their respective names, possession or control and that this term shall be taken to include all superannuation entitlements and life insurance policies presently in their respective name.
(3)Costs.
By a minute of order contained in the Respondent’s Case Outline document, she sought the following orders:
(1)That the Applicant’s application be dismissed.
(2)That the Applicant pay the Respondent’s costs of and incidental to these proceedings.
Credit
There is a mass of conflicting evidence between the parties, particularly in relation to the issue of contributions by the Applicant. Almost all of the evidence of the Applicant as to contributions made by him by way of renovation to real property and contributions to the welfare of the family unit by way of contribution to living expenses are contested by the Respondent. Similarly, the greater part of the Applicant’s evidence as to his assistance to the Respondent with parenting of Mr D – not strictly a contribution issue, but a matter to be considered under section 90SF(3)(r) – is contested by the Respondent.
In relation to whether or not there is a need to make findings in relation to the credit of the parties, and whether or not I should indeed proceed with that exercise at all, I refer to the extensive examination of the law in this regard set out by Wilson J in Bacall & Zagar [2020] FamCA 350 at paragraphs 74 to 93. Though his Honour’s decision in that case was overturned on appeal (by consent), it was on a basis which did not detract in any way from the part of his Honour’s judgment referred to. I do not quote all that section of his Honour’s judgment herein; as it is reported and available to be read.
I also refer to the shorter discussion of credit by McClelland DCJ in Sedgwick & Lind [2021] FamCA 605 at [19] to [131]:
[129] The Court is reluctant to make adverse findings in respect to a party’s credit in parenting proceedings unless it is necessary “to determine the real issues joined between the parties”: Adamson & Adamson (2014) FLC 93–622 (Adamson) at [90].
[130] The parties’ written and oral evidence were at odds in a number of significant respects. This was most significantly the case in respect to the parties’ respective contentions regarding the conduct of the father constituting acts of family violence and the possible cause of Y’s severe injuries during infancy. In those circumstances it is necessary to make findings in respect to the parties’ credit, in particular in respect to the differing accounts they give in respect to allegations of family violence between them.
[131] In McGlen — McLeod v Galloway [2012] NSWCA 368 at [87], Tobias AJA, with whom Allsop P and Campbell JA agreed, referred with approval to the test for assessing the truth of a witness’s evidence as being stated by Tugendhat J in Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB) at 73 , where it was said:
There is great assistance to be obtained from extra-judicial writing of Lord Bingham in a chapter headed “The Judge as Juror: The Judicial Determination of Factual Issues” … Lord Bingham cited Sir Richard Eggleston QC Evidence, Proof and Probability (1978), 155 who set out the main tests to be used by a judge to determine whether a witness is lying or not.
(1) the consistency of the witness’s evidence with what is agreed, or clearly shown by other evidence, to have occurred;
(2) the internal consistency of the witness’s evidence;
(3) consistency with what the witness has said or deposed on other occasions;
(4) the credit of the witness in relation to matters not germane to the litigation;
(5) the demeanour of the witness.
I do not set great stock by my observation of witnesses’ demeanour in giving their evidence. A thoroughly honest though very nervous person may seem hesitant, edgy, and at times almost evasive, whilst a thoroughly untruthful, cool, calculating, and controlled witness may present as eminently believable when based only upon demeanour. I do place some weight in considerations contemplated by the authorities, such as a witness’ responsiveness to a question.

During his cross examination by Ms Kennedy, the Applicant admitted that he made false statements to the Australian Taxation Office year after year in that he received a significant part of his employment income as cash payments not disclosed in his personal income tax returns. He also admitted during his cross examination that his evidence in paragraph 174 of his trial affidavit that since the parties’ separation, he had:
… been homeless for most of that period. I have been living in my motorhome
was also incorrect as he admitted that following separation he leased the property at B Street, Suburb C, and paid rent.
The Respondent admitted during her cross examination by Mr Brown that in her evidence before Judge Henderson (as her Honour then was) for the threshold hearing, she had denied the existence of a de facto relationship between the parties well knowing that such evidence was untruthful. When it was put to her directly:
Mr Brown: You tell the court now that in relation to the threshold issue you lied to the court?
Respondent: Yes.
Also during her cross examination the Respondent was brought to admit that the statement made by her in her trial affidavit at paragraph 123 that:
I do not buy food at McDonald’s and have not ever personally made a purchase at Domino’s Pizza
was incorrect in relation to both outlets.
In view of the foregoing, I approached the evidence of each of the parties with caution.
The Evidence
Unusually in a matter under section 90SM of the Act seeking orders altering the interests of the parties in property, it is necessary to detail some of the evidence relating to events preceding the commencement of the parties de facto relationship, as it is part of the Applicant’s case that he made significant contributions that should be taken into account under section 90SM(4) in the period between the parties meeting and their commencement of their de facto relationship in about mid-2009.
The Applicant says that the parties met in about early 2004; the Respondent says that the parties met in 2005, and in paragraph 22 of her June affidavit, she gives evidence as to how she asserted and that date. I accept the Respondent’s evidence as to when the parties met.
Upon meeting, the parties commenced a social or romantic relationship without any commencement of cohabitation until either May/June 2009 (the Applicant’s assertion) or August 2009 (the Respondent’s assertion). When the parties met, the Applicant was residing at Suburb F and the Respondent in her own home at Suburb E. In 2006, the Applicant moved to reside at Suburb G.
The Applicant was a regular, he says daily, visitor to the Respondent’s Suburb E home from 2005 until commencing cohabitation with the Respondent there in 2009. He does not explicitly say that he spent nights at the Suburb E home during that time, but there is inference to that effect in the Respondent’s trial affidavit at paragraph 24 where she asserts that the Applicant did not:
… stay overnight before a school day or when I was working the next day
but does not exclude nights when she was not working the next day and it was not a school day.
In paragraph 23 the Respondent states that neither she nor Mr D ever stayed overnight at the Applicant’s home at Suburb G where he resided from August 2006 until he moved into the Suburb E property in about mid-2009, but there is no reference in the evidence to the period from when the parties met until August 2006 when the Applicant resided at Suburb F. In any event, it is common between the parties that their de facto relationship did not commence until May/June (the Applicant) or August (the Respondent) 2009.
The Respondent had a son, Mr D, born in 1997, from her previous relationship with Mr L. When the parties met, Mr D was 7 years of age and when the parties commenced their cohabitation in 2009, he was just about to turn 12 years of age. There are no children of the relationship of the parties. The Applicant has no children.
In about 1992, the Respondent and her mother jointly purchased real property at M Street, Suburb E for $155,000, each contributing funds to the purchase and jointly borrowing the balance of purchase monies on a loan account from Bank N, cross-secured on the Respondent’s mother’s property at Suburb O. They each contributed equally to the repayments required on the loan account until 1998.
In 1998 the Respondent’s mother transferred her interest in the property to the Respondent for a stated consideration of $100,000, of which the Respondent paid her mother $70,000 over the next five years.
The Applicant’s evidence in paragraph 20 of his trial affidavit is incorrect in that he asserts by inference that the Respondent purchased the M Street, Suburb E property in 1998, whereas the clear evidence is that she purchased a property in about 1992 jointly with her mother and received transfer of the mother’s interest for consideration in 1998.
In 1998, the Respondent purchased a strata unit at P Street, Suburb Q, for $245,000, borrowing $271,000 for the purchase. The additional $26,000 was used to pay stamp duty and legal costs, for the purchase of furniture and appliances, and for essential repairs to the property. The property was rented for holiday letting as in the rental income was paid towards the interest on the loan account.
In 2001, the Respondent refinanced both the M Street, Suburb E property and the P Street, Suburb Q property, borrowing additional funds to enable her to expend $110,000 or more on renovations to the M Street, Suburb E property. The Respondent also refinanced the M Street, Suburb E property in October 2003 and November 2007. There is no evidence in relation to whether those refinances involved a borrowing by the Respondent of additional funds and if so how such funds may have been expended.
From early 2008 until early 2009, the Respondent and Mr D resided in Country H where the Respondent was employed as a medical professional. The Applicant visited the Respondent and Mr D in Country H during this period on more than one occasion. The Applicant had use of the Respondent’s Motor Vehicle 2 during this time, provided care for the Respondent’s dogs, and was the point of contact for the agents managing the Respondent’s P Street, Suburb Q and M Street, Suburb E properties. He further asserts that during this period he:
… serviced the [P Street, Suburb Q] flat on a weekly basis for a significant part of the 15 months that the Respondent was residing in [Country H].
He says that during this period, he sometimes cleaned the flat and that sometimes it was done by professional cleaners.
The Respondent asserts in paragraph 52 of her trial affidavit that the managing agent arranged cleaners for the unit while she was in Country H and that she at no time asked the Applicant to do any of the cleaning.
The Applicant said that the Respondent had tenants in her M Street, Suburb E property during her absence in Country H and listed the Respondent as a contact person if there were any issues with the property, resulting in him being:
…called upon three times in the 15 months to attend to this – I recall that I had to repair a rear door, a leaking roof and a side gate at the property.
Following the Respondent’s return from Country H, she resumed residing at the M Street, Suburb E property and on her invitation, the Applicant commenced residing with her in a de facto relationship at the M Street, Suburb E property at some time between June and August 2009.
The Applicant asserts that from when the parties met until the sale of the P Street, Suburb Q property some months after the commencement of their de facto relationship, he:
… did work in relation to maintenance and refurbishment of [P Street, Suburb Q]
At paragraph 105 of the Applicant’s trial affidavit, he asserts that in 2004, he improved the P Street, Suburb Q property by painting the whole flat, re-oiling the timber floors, conducting a “major clean” of the bathroom, kitchen, and washing the windows. What is involved in a “major clean” is not explicit in the evidence.
He also asserts that at the end of each lease (the property being leased for short term holiday rentals) he and the Respondent did “end of lease” cleaning and “weekly services”, whatever that may mean, though he concedes in his evidence that, on occasions, the cleaning was conducted by professional cleaners and that:
… at various times, for various periods, the flat was also cleaned by contract cleaners.
The Respondent asserts that:
… before 2008 the [P Street, Suburb Q] unit was serviced and cleaned by me or cleaners arranged by [Company R] (‘the managing agent’).
The Applicant also says that prior to the sale of the P Street, Suburb Q property in November 2009, he undertook renovation work on the property at the request of the Respondent and in paragraph 111 of his trial affidavit he details the renovation work he asserts he carried out. None of those works amounts to any major structural repair or alteration, but relates mainly to detailing improvements.
The Respondent says in paragraph 53 of her trial affidavit that:
… between 2005 and 2007 the Applicant did some handyman jobs and made some small improvements at the [P Street, Suburb Q] property.
She denies that he painted the property twice, but concedes that he did repaint the property prior to it being sold. She also concedes that he oiled the floors and wash the windows.
In relation to the renovations the Applicant asserts he carried out on the P Street, Suburb Q property to prepare it for sale, the Respondent concedes in paragraph 54 of her trial affidavit that the Applicant did some of the work he details in his paragraph 111 (wrongly referred to by the Respondent as his paragraph 114), but she does not concede all of those works.
The Respondent sold the P Street, Suburb Q property in November 2009 for $431,000. She paid out the loan account secured by mortgage for $249,200, the agents’ commission of around $8000, and paid $31,000 in capital gains tax, though the latter was paid some years later in 2012 from monies other than the proceeds of sale of the P Street, Suburb Q property.
On that basis, and without allowing for any other deductions from the proceeds of sale, the net proceeds of sale would have been about $173,800. The Respondent gives evidence that she applied $171,000 from the proceeds of sale of the P Street, Suburb Q property toward purchase of the B Street, Suburb C property.
In early 2010, the Respondent listed the M Street, Suburb E property for sale, and on 11 June 2010 it was sold for $735,000, from which the Respondent paid agents fees of around $18,900 and paid out the loan account secured by mortgage in a sum of $450,000.
By the time the Suburb E property was sold, the Respondent had purchased in her sole name the property at B Street, Suburb C (‘the B Street, Suburb C property’), and about $262,000 from the proceeds of sale of the M Street, Suburb E property was placed by the Respondent in a Westpac account with the intent that the money would be used to renovate the B Street, Suburb C property.
The Applicant asserts that in about mid-2010 he undertook work on the M Street, Suburb E property to prepare it for sale and he details in paragraph 114 of his trial affidavit the work he asserts that he carried out in that regard.
In relation to the Applicant’s evidence, the Respondent says in paragraph 63 of her trial affidavit:
… while I would not describe the work as renovations the Applicant carried out some work to the property prior to the sale.
The Respondent concedes that the Applicant:
… replaced half of the fence along the eastern side with horizontal corrugated iron attached to existing metal reinforcing posts, painted the decking and erected some temporary screens to block view of neighbouring yard from my deck and put a bracket under the kitchen bench top
and that he painted the front face of the house and, together with others including Mr D, and that he:
… painted the wrought iron fence at the front of the property.
The Respondent gives evidence that she paid $4000 for professional internal painting of the property, and for hire of furniture and styling.
In paragraph 67 of her trial affidavit the Respondent specifically denies that the Applicant did certain of the work he describes in his paragraph 114. She concedes that he built a shed in the backyard of the property, but says that this was carried out in October 2009 with materials paid for by her, by extending an existing shed to enable him to house his motorbikes.
In relation to the Applicant’s reference in his paragraph 114 to:
… finishing fireproofing of the attic after a contractor that had failed to complete the work
the Respondent says that she paid a total of $5720 to rectify the fire rating to a party wall (the M Street, Suburb E property was a semi-detached property) and for inspection and certification, and that the Applicant’s contribution was to:
[finish] what was necessary for a certificate which included filling a gap left by the builder.
The Respondent purchased the B Street, Suburb C property in her name in January 2010 for $709,000, applying $550,000 on of from a loan account secured on the property, $171,000 from the proceeds of sale of the P Street, Suburb Q property, and the balance from her savings, including payment of stamp duty of around $27,400.
The Applicant asserts that the purchase was in the nature of a joint project and that the property was placed in the Respondent’s sole name as he did not have the means to apply for a loan at that time. The Respondent’s evidence is that though the Applicant assisted in identifying an appropriate property for purchase, there was no element of joint project or joint purchase.
I accept the evidence of both parties, that the Applicant did not contribute any monies whatsoever toward either the purchase of the B Street, Suburb C property or directly to the repayments of the loan account secured on the property.
The parties and Mr D moved from the Suburb E property to the B Street, Suburb C property. The Respondent says this occurred shortly after settlement of the B Street, Suburb C property purchase, whereas the Applicant says this occurred in about mid-2010 and that the Respondent then proceeded with the sale of the M Street, Suburb E property, which occurred on 11 June 2010.
During the period of about five months when the Respondent held both the B Street, Suburb C property and the M Street, Suburb E property she made all required repayments on the loan accounts secured by mortgage on each of the properties without direct contribution from the Applicant.
From about early 2011, the Applicant commenced work on renovating the B Street, Suburb C property, what he refers to as “the first B Street, Suburb C renovation”. He gives evidence that he spent about 10 months renovating the B Street, Suburb C property and details in paragraphs 130 to 132 of his trial affidavit the work that he says he carried out on the property, ceasing paid employment to do so.
The Respondent disputes quite a number of the items of work the Applicant claims to have carried out in the first B Street, Suburb C renovation and details those disputes in paragraph 72 of her trial affidavit.
By September 2011 the sum of $262,000 that the Respondent had banked from the sale of the M Street, Suburb E property was reduced to about $121,000, having been expended on living expenses, $18,900 for purchase of a Motorcycle for the Applicant on 28 September 2010, $25,000 lent to a friend of the Respondent, and expenditure on:
… tools and materials for the renovation of the [B Street, Suburb C] property.
The Respondent asserts in paragraph 74 of her trial affidavit that she also expended $31,000 from these monies paying the capital gains tax on the sale of the P Street, Suburb Q property, which conflicts with her evidence in paragraph 55 of her trial affidavit that she paid the $31,000 capital gains tax:
… by drawing down around $20,000 on my [B Street, Suburb C] mortgage and using a tax credit of around $11,000.
The Applicant asserts in paragraph 35 of his trial affidavit that in addition to carrying out work on the B Street, Suburb C property for the first B Street, Suburb C renovation:
… the savings of the Respondent and myself were used to pay for necessary materials, although I acknowledge that the Respondent paid more for the purchase of materials than I did.
The Applicant says in paragraph 135 of his trial affidavit “I was not a professional” in referring to the renovation work. The Applicant had no trade certificates that related to any of the alleged renovation work and it was all carried out by him on a ‘handyman’ basis. During cross examination, he gave evidence that his only trade qualifications were as a construction worker. He conceded that he had at no time been in paid employment as a handyman.
The Respondent became dissatisfied with the renovation work being carried out by the Applicant in the first B Street, Suburb C renovation and she “sacked him” and engaged a licensed builder, Mr S, and entered into a written contract with Mr S for renovation of the B Street, Suburb C property at contract price of $245,000.
Mr S commenced the renovation work, mainly carried out by an employee named either Mr T (short for Mr T) as the Respondent says or Mr U as the Applicant says, in August 2011. At about this time the Applicant moved into a caravan in the backyard of the B Street, Suburb C property and, the Respondent asserts, recommenced paying a sum of $200 each week to household expenses. The Applicant agreed in cross examination that had made no direct financial contribution to household expenses during the period January 2011 to August 2011 when he was undertaking the “first B Street, Suburb C renovation”.
Mr S ripped out the renovations that the Applicant had undertaken in the first B Street, Suburb C renovation. During his cross examination the Applicant conceded that the first B Street, Suburb C renovation was “a failed attempt”, but denied the failure was due to substandard work and asserted the failure was only due to him filing the Respondent “on the time factor”. However, the Applicant agreed during his cross examination that Mr S “removed everything you did”.
Between August 2011 and September 2012, Mr S, mainly through his employee, completed most, but not all, of the building work covered by the contract between himself and the Respondent.
The Applicant asserts that he did a number of jobs on the B Street, Suburb C property at the request of Mr S and details those jobs in paragraph 147 of his trial affidavit. In contrast, the Respondent says in paragraph 79 of her trial affidavit that she did not witness Mr S asked the Applicant to carry out any work for him and that she did not witness the Applicant carrying out any of the work.
Ultimately the Respondent, as the contracting party, and the Applicant, who had always felt aggrieved by the engagement of Mr S, were both dissatisfied with Mr S’s work and a complaint was made to the Department of Fair Trading about Mr S, leading to an inspection of the property by an inspector from the Department in a site inspection attended by Mr S, the Applicant, and another person, Mr V, a director of a construction company. The Department of Fair Trading complaint did not resolve the issues, and in August 2012 the Respondent sacked Mr S and engaged a contractor through Australian Carpentry Contractors, on Mr V’s advice, to rectify and complete the building work.
Between October and December 2012 the contractor completed the work at a cost of the Respondent of “just over $26,000.” That sum of $26,000 was composed of a loan of $14,000 obtained by the Respondent from the Applicant in October 2012, and $12,000 paid by the Respondent from her savings.
The Respondent says that the Applicant was not engaged in any way in assisting with this completion of the remedial work and renovation, whereas the Applicant says that the parties arranged the engagement of trades persons including electrical, carpentry and plumbing trades, to undertake the remedial work in late 2012 or early 2013, all managed by him, and that he:
… contributed a substantial amount of money to this remedial work and paid for the invoices some of the trades persons or gave cash to the Respondent to pay them.

He further asserts in paragraph 156 of his trial affidavit that he also:
… assisted the trades persons conducting the remedial work with my labour.
The Respondent denies this assertion by the Applicant.
The Respondent says that between February and May 2014 she repaid the Applicant the loan sum of $14,000 by:
adjustment for around $2000 for a [finance] course on behalf of the Applicant in or around February 2014; payment by bank transfer into the Applicant’s account of $10,000 on 15 May 2014 … and $2500 in cash in May 2014.
being a total of around $14,500. For his part, the Applicant asserts that he did not lend any money to the Respondent, but, rather that he gave her between $20,000 and $25,000 towards the remedial work on the B Street, Suburb C property.
The Applicant says in paragraph 157 of his trial affidavit that at some stage after the first B Street, Suburb C renovation:
I built a shed from various materials that I had sourced or had been left on the property by the previous builder.
The Respondent concedes in paragraph 85 of her trial affidavit that:
… in 2013 the Applicant had partially built a shed
and provides at page 283 of the Respondent’s tender bundle a photo of a rather ramshackle and incomplete shed-type structure that she asserts is the shed in question.
The parties separated between May/June (the Applicant) or July (the Respondent) 2014 and late August 2014. During that time, in July 2014, the Applicant broke his arm whilst he was at B Street, Suburb C property. Following reconciliation, the Applicant moved back into the B Street, Suburb C property in about September 2014 and again began renovating the B Street, Suburb C property – “the second B Street, Suburb C renovation”.
The Respondent asserts that she had begun arranging for a person recommended to her named Mr W to complete the renovation work, and she puts into evidence a quote and schedule of works from Property Inspections Australia prepared by Mr W, undated.
On 18 September 2014 (the Respondent erroneously says 19 September 2014 in paragraph 91 of her trial affidavit, but page 289 of her tender bundle shows the correct date) the Respondent transferred $5000 into the Applicant’s account for payment of trades and materials.
The Applicant asserts that the agreement between the parties was for him to undertake the second B Street, Suburb C renovations. The Respondent’s evidence is that she provided monies to the Applicant for purchase of materials and payment of trades, but that the work was to be undertaken by a qualified tradesman, and when she saw that he was doing work himself she said to him “this is not what we agreed”.
Despite this, it seems that the Applicant continued doing some of the renovation work on the second B Street, Suburb C renovation with other work being done by a qualified tradesman, Mr X, and by a Mr Y, asserted by the Respondent in paragraph 99 of her trial affidavit to be:
… a builder recommended by an architect friend.
The Respondent put into evidence at pages 292 and 293 of the Respondent’s tender bundle a copy of the said quote and schedule of works marked in her handwriting to indicate which of the three men worked in which job, asserting that she did so “as the work was carried out”. However, only 8 of the 44 work items on the schedule of works are so marked, a number of others simply being marked with a tick and to mark with a tick and a cross.
Once again, the Applicant agreed in cross examination that during the period September 2014 2 April 2015, when the second B Street, Suburb C renovation was being carried out, he made no direct financial contribution to the household.
The Applicant’s evidence is that he:
… managed the building trades to complete some urgently required remedial work and thereafter to continue the renovation …
and organised trade quotes. From August 2014 until April 2015, he was engaged full-time in the renovations working on the second B Street, Suburb C renovation and did not engage in paid employment, and that he returned to paid employment the following April 2015 but still continued to work on the second B Street, Suburb C renovations outside his working hours, being after hours and on weekends.
The Applicant sets out at paragraph hundred and 65 of his trial affidavit a list of renovation works that he asserts he did in the second B Street, Suburb C renovation and includes in the Applicant’s tender bundle at pages 157 to 193 photographs of such work with his hand written notations identifying the work.
In paragraph 96 of Respondent trial affidavit she says that the Applicant:
… carried out some of the work described in his affidavit under second renovation attempt
and asserts that the work was “mostly incomplete”, and provides photographs of the asserted “mostly incomplete” work at pages 295 to 310 of the Respondent’s tender bundle.
In paragraph 97 of the Respondent’s trial affidavit, she takes issue with various of the items of work alleged by the Applicant in paragraph 165 of his affidavit to have been carried out by him and refers to certain of the photographs in her tender bundle.
She takes specific issue with the Applicant’s assertion in paragraph 165(ix) that he renovated “downstairs area, which became a two-bedroom flat” and says that the “potential flat” downstairs was turned into a flat after the Applicant moved out and includes in her evidence at page 309 of the Respondent’s tender bundle photo that she asserts was taken on 26 July 2015 “of the downstairs area”, which conveys nothing to the Court either way on assertions about renovation of a downstairs flat.
The Respondent asserts in paragraph 99 of her trial affidavit that in early 2016 Mr Y completed the flat downstairs at a cost to the Respondent of $25,000.
The Respondent asserts that she spent “at least $284,652”, not including credit card payments for Bunnings orders or $5000 which she transferred to the Applicant for materials and to pay trades, on the renovations of the B Street, Suburb C property.
She includes as annexure “A” to her trial affidavit a schedule (complying with section 50 of the Evidence Act 1995 (Cth) as a summary of voluminous material) of the “B Street, Suburb C Building Expenses (2010 to 2017)” and refers to the source documents being corresponding payment records as Exhibit “EX1” to the Respondent’s trial affidavit (found at Document 23, pages 309 to 410 of the Respondent’s supplementary tender bundle). During his cross examination the Applicant accepted the Respondent’s evidence that she spent $284,652 on the building and renovation work at the B Street, Suburb C property.
The Applicant says that he purchased a letterbox from “Store Z” at Suburb E for the B Street, Suburb C property and that he has subsequently seen that letterbox installed as the letterbox for B Street, Suburb C. He also says that he obtained a steel security screening and a steel security door on Gumtree as a “freebie” in about 2014 and brought them to the B Street, Suburb C property and that he has observed that the door has been installed at the front of the B Street, Suburb C property.
The Respondent says that in the period from 2009 until 2015 – the period of the parties’ de facto relationship – the Applicant “paid financial contributions of varying amounts of between $100 and $250 per week between August 2009 and July 2014 except when he was carrying out maintenance or building work”.
The Applicant accepted during his cross examination that he did not pay any financial contributions to the household for living expenses during the periods of both the first B Street, Suburb C renovations and the second B Street, Suburb C renovations, but he denied during cross examination that his only financial contributions were to $200 to $250 during the balance of the cohabitation.
He asserted that even before the parties commenced cohabitation, he “contributed towards household expenses including food and utilities in the Respondent’s household”, and gave the Respondent $100 a week to shop at the AB Market. He says that prior to cohabitation, he also paid for recreational activity such as dinner and movies and activities with Mr D, that on occasions he purchased food and groceries on occasions the Respondent purchased food and groceries and that he paid for petrol in the Respondent’s car on most occasions when it was required.
The Applicant asserts that prior to the commencement of cohabitation he paid expenses for Mr D such as for school excursions, pocket money, outings, meals, and haircuts.
The Respondent makes a blanket denial that the Applicant made any financial contribution to her, to her household or to Mr D prior to the commencement of their cohabitation.
The Applicant asserts that during the cohabitation, he applied his income:
… towards joint living expenses for [Ms Talbot], [Mr D] and I, including household bills, groceries, and day-to-day living expenses, plus giving the Respondent amounts of cash as requested by her, which could vary from some hundreds of dollars to some thousands of dollars in any given week when I was working.
He includes in his tender bundle as document 16 his bank statements for the period from July 2011 to July 2014, annotated by him, asserting same provide proof of his contribution during that period to the Respondent’s household expenses. He also asserts that during cohabitation he paid:
… one or 2 of the Respondent’s credit card bills which amounted to thousands of dollars although I cannot recall the exact amount …
and
… rates, amounting to the sum of approximately $450 per quarter Utilities, amounting to the sum of approximately $600-$700 per quarter, and other day-to-day expenses.
During his cross examination, the Applicant admitted that he could produce only one rate notice that he had paid on behalf of the Respondent. The Respondent alleged that he paid the rate notice with money he had been about to give to her as his weekly contribution to the household, as described in her evidence, and that therefore his payment of that rate notice was not an extra payment.
Annexure “B” to the Respondent’s trial affidavit is a schedule prepared pursuant to section 50 of the Evidence Act 1995 (Cth) of payments the Respondent made from various accounts to her credit card accounts between 25 June 2012 and 7 January 2013 and Exhibit “EX2” contained in the Respondent’s supplementary tender bundle contains the source documents.
The annexure does not of itself negate the Applicant’s assertion that he made payments towards the Respondent’s credit card bills, but the Respondent denies in her evidence that he made any such payments, saying in paragraph 108 of her trial affidavit:
I paid all rates and utilities bill although the Applicant may have paid one of rates bills in the second half of 2012 which I cannot account for. …
At paragraph 111 the Respondent says:
I paid practically all household expenses for [Mr D] and myself from 2005 to 2015.
That evidence leaves it open that some of the household expenses for the Respondent and Mr D were paid by the Applicant, though the phrase “practically all” limits such, on the Respondent’s evidence, to considerably less than that which the Applicant asserts.
When the Respondent was cross examined by Mr Brown to the effect that her available income was demonstrably inadequate to meet her expenses at certain times during the cohabitation, the Respondent referred to the repayments made to her by the Applicant for the motorcycle and to her various refinancings, and asserted that they had been the source of the funds to meet the excess of expenses over income.
The Respondent gave evidence in paragraphs 116 to 130 alleging cash withdrawals by the Applicant from her bank accounts to which she gave him access for the renovation purposes, without her then knowledge or consent, and expenditures at McDonald’s and Domino’s Pizzas without her knowledge or consent.
She also says:
… I do not take issue with the use of the debit card for meals given the Applicant was attempting building work …
The Respondent asserts in paragraph 127 that the total cash withdrawals that were not withdrawn by her and that were made without her knowledge between October 2009 and December 2011 total $18,264. She gives evidence of patterns of cash withdrawals on the Applicant’s accounts following separation and implies that the patterns of cash withdrawals from her accounts during cohabitation and the patterns of withdrawals of cash in Applicant’s accounts following separation correspond, and that all were made by the Applicant.
During her cross examination, the Respondent conceded that the transactions from her accounts that she was referring to had been made up to nine years before her trial affidavit, the most recent being seven years prior, and that she had no independent recollection in relation to the transactions.
In the course of that cross examination, she conceded that as she had no actual knowledge of the transactions she included and that she could not specifically recall her calculation, but that such transactions could have been made by herself.
The Respondent specifically conceded in cross examination that her “pattern of behaviour” theory was based on assumptions that turned out not to be sound. Accordingly, I make nothing in my considerations in this matter of the Respondent’s evidence about the cash withdrawals from her accounts.
The Applicant asserts that he made a significant contribution to the day-to-day parenting of Mr D from when the parties met until their separation at the end of their cohabitation – 2005 (as I have found) until July 2015 – including to his direct financial support.
He asserts that he regularly dropped D to school and collected him after school and cared for him on weekends when the Respondent was working. He says that he took Mr D to sports training on Tuesday nights and to most games on Saturday mornings, at which the Respondent rarely attended, and took him to sports practice and all gradings during his sports career and took him to and collected him and his friends from the Location AC weekly for a couple of years when Mr D was interested in sports.
In paragraph 81 of his trial affidavit the Applicant refers to enjoying various vacations with the Respondent and Mr D in the period from “2003 to 2008”, despite giving evidence in paragraph 67 that he “met Mr D in 2004” and in paragraph 9 that he met the Respondent “in or around 2004”. He repeats the 2003 error in paragraph 97.
He asserts that the Respondent and he shared expenses on these holidays, “although there was no strict accounting.”
The Applicant says that he assisted Mr D with some of his school projects. The Respondent concedes that the Applicant assisted Mr D with a project for his HSC. The Applicant says that during high school, Mr D was in the sports group and that he often took him to his meetings and picked him up, that he taught Mr D to drive in about 2015, and that he taught Mr D how to use power tools safely.
The Applicant says that he attended Mr D’s school functions in primary school and high school and that he took Mr D to and paid for one dental appointment, being $76 in November 2013. All in all, the Applicant asserts that he was an active step-father to Mr D and contributed to Mr D’s living expenses from arch 2005 until the parties’ separation in July 2015.
The Applicant asserts in paragraph 97 of his affidavit that Mr D’s father, Mr L:
… has never paid any child support to my knowledge – the Respondent told me this.
However, during his cross examination, he was taken to a schedule of payments made by Mr L to the Respondent for Mr D’s support at pages 184 and 185 of the Respondent’s supplementary tender bundle and conceded that from 14 May 2014 Mr L was making payments towards Mr D’s support.
However, there is nothing in the evidence to contradict the Applicant’s claim for the period from 2005 to 14 May 2014.
For her part, the Respondent denies that the Applicant collected Mr D from after school care up to 2006 and says that “towards 2007” Mr D got himself to and from school. She says that when she was working on weekends, he was cared for by friends or relatives, not the Applicant. She does concede that whilst Mr D was still in primary school and prior to the commencement of cohabitation in August 2009, the Applicant picked Mr D up from school on a few occasions, but did not have care of him for more than a few hours.
She also concedes that when Mr D was in high school, the Applicant did take him some sporting events including sports and some high school events and presentations. Later in her trial affidavit, the Respondent concedes at paragraphs 134 and 135 that the Applicant collected Mr D from school on one or two occasions prior to August 2006 and that he picked Mr D up from school on around 10 or so occasions in the 18 month period before the Respondent and Mr D left for Country H in 2008.
In paragraph 100 of his trial affidavit, the Applicant details the contributions he asserts he made to the welfare of the family unit in the role of homemaker. The Respondent responds to the Applicant’s evidence in paragraph 114 of her trial affidavit and asserts that contrary to the Applicant’s assertions she did most of the grocery shopping and cooking, the parties had a dishwasher and therefore there was no need to do washing up, and that the parties “shared household duties when the Applicant lived in the house”. She deposes that the Applicant “bought some groceries from 2009 to 2015, largely for his own use.”
The Applicant conceded in the threshold hearing before Judge Henderson in July 2018 that during their cohabitation, the Respondent did most of the cooking and the Respondent did “the big shops”. The Transcript of the threshold hearing is in the first 126 pages of the Applicant’s supplementary tender bundle.
The Applicant points out in his evidence that the Respondent:
… has had the use and occupation of [B Street, Suburb C] since we finally separated in … 2015. So far as I am aware the Respondent has paid the mortgage.
He notes that he has had no benefit of the B Street, Suburb C property since final separation. However, the B Street, Suburb C property was purchased by the Respondent in her sole name, the loan account applied to a part of the purchase money was borrowed by the Respondent in her sole name and at her sole liability. As between herself and the Applicant, she has been solely responsible for and has solely made the repayments required on that loan account since separation – indeed since its inception.
The Applicant did not produce any expert evidence relation to any value-added by his asserted work to any of the P Street, Suburb Q, M Street, Suburb E, or B Street, Suburb C properties, and did not produce any expert evidence that any of the work done by him on the B Street, Suburb C property was done to an adequate standard.
Submissions
Mr Brown made written submissions on behalf of the Applicant in his Case Outline Document and made oral submissions at the end of the hearing.
In his written submissions, Mr Brown submitted that it was just and equitable for the court to proceed to make an order altering the interests of the parties in the property on the basis that de facto relationship had ended, the express and implied assumptions that underpinned their property arrangements during the relationship had ended, and that there would be no future common use of property by the parties.
Mr Brown made submissions in relation to the evidence and that the Applicant’s contributions, particularly non-financial contributions, were not restricted to the period of the cohabitation but commenced shortly after the parties began their intimate relationship in 2005. Mr Brown’s written submissions addressed the Applicant’s case in relation to his contributions to the P Street, Suburb Q and the M Street, Suburb E properties and to the identification of and improvement of the B Street, Suburb C property as well as submissions as to general financial contributions made by the Applicant.

Mr Brown submitted that the Applicant’s contributions to the care of Mr D from 2005 until the end of the relationship should be taken into account by the court when assessing the parties contributions on an holistic basis despite much of those contributions having the made in the period between 2005 and mid-2009, prior to the parties commencement of cohabitation. Mr Brown submitted that the Respondent did not respond in any meaningful way to the detailed evidence of the Applicant in relation to his contributions to the maintenance and improvement of the real properties, to the general financial support of the household and to the parenting and financial support of Mr D. In regard to the Applicant’s assistance to Mr D, Mr Brown refers the court to the well-known authority of In the Marriage of Robb (1994) 18 Fam LR 489.
Mr Brown submitted that the Respondent’s sole occasion of the B Street, Suburb C property since the parties’ separation, while the Applicant lived in his motorhome, was a contribution to the credit of the Applicant.
Mr Brown made submissions in relation to the relevance of the increase in value of B Street, Suburb C property from the time of purchase by the Respondent up to the time of hearing and submitted that the increase in value should be treated as a windfall to which neither party has made a greater contribution than the other.
He referred to the authority of Zappacosta & Zappacosta [1976] FamCA 56 and to approval of that decision by the Full Court as recently as 2019 in Whiton & Dagne [2019] FamCAFC 192 particularly at paragraphs [34] to [36].
In relation to this argument, I find that the principle enunciated in those cases is satisfied by the B Street, Suburb C property being represented in the matrimonial property pool at its current value, which means that if there is any alteration of the parties’ interests in the property and that such alteration causes value to flow from the property interests of the Respondent as they are prior to alteration to the Applicant, he has the advantage of that increase.
I do not consider it appropriate to assess contributions on the basis that as the Respondent was the sole purchaser as between the parties, including as to payment of the loan account secured by mortgage on the property, that the whole of the value of the B Street, Suburb C property as represented in the matrimonial property pool is a contribution by the Respondent, for that would, for a start, offend the proper approach to assessment of contributions being made on an holistic basis.
By the same token I do not consider it appropriate to simply calculate the increase in value of the B Street, Suburb C property between purchase and hearing and conclude that one half of that increase in value is attributable to an a contribution by the Applicant. Besides that having the flavour of a purely mathematical approach to assessment contributions, which it should not be, it demeans the contribution of the Respondent in being the sole financial source of the purchase of the property below what I consider it order be, with all of those relevant contributions forming part of the consideration and assessment of contributions of the parties on the holistic basis.
Mr Brown submitted that:
… bearing in mind the windfall element, given the substantial value increase of [B Street, Suburb C], the overall contribution of the Applicant ought to be assessed at 40%.
He submitted that a further adjustment of 10% should be made in favour of the Applicant on consideration of the section 90SF(3) matters.
In his oral submissions, Mr Brown submitted that an appropriate, just and equitable order would be a payment by the Respondent to the Applicant of a sum of between $500,000 and $600,000 being somewhere between 40% and 50% to the Applicant, submitting that it was proper for an order to be made at the higher end of that range.
Mr Brown made detailed oral submissions in relation to the Respondent’s evidence going to alleged misappropriation of funds from her bank accounts by the Applicant and I take those submissions into account when making my relevant finding on that issue.
Ms Kennedy’s written submissions asserted that the Applicant made no direct financial contribution to the purchase of any of the Respondent’s real property, and the evidence bore out that submission, though, of course, contributions are dealt with on an holistic basis and not by tying specific contributions, especially financial contributions, to a specific piece of property and dealing with it as a separate contribution decision.
Ms Kennedy made submissions in relation to the evidence, particularly the renovation works undertaken by the Applicant on the various real properties. Ms Kennedy submitted that on the evidence, the Applicant had made no post separation contribution to the B Street, Suburb C property, the reduction of the loan account secured by mortgage on the B Street, Suburb C property, or the Respondent’s superannuation entitlements.
Ms Kennedy made pointed written submissions in relation to the lack of any evidence before the Court from experts as to the competence or value of the building works allegedly undertaken by the Applicant on the real properties owned by the Respondent and their effect, if any, on value. It was submitted in that regard that the absence of such expert evidence would allow the Court to draw an inference that such expert evidence would not have assisted the Applicant’s case.[2]
[2] Jones & Dunkel (1959) 101 CLR 298.
The main thrust of the written submissions by Ms Kennedy were that the court could not be satisfied that it was just and equitable to make orders altering the interests of the parties in the property as she submitted that the Applicant made no contribution to the acquisition, conservation and improvement of the Respondent’s assets.
In her oral submissions, Ms Kennedy dealt with the Applicant’s debt to the Australian Taxation Office and the lack of evidence to support any contention that such debt was accrued during or relevant to the cohabiting relationship. Ms Kennedy submitted that the seminal question in the matter was whether the Applicant could trace any money from him into the relationship. She submitted that the Applicant’s evidence where conflicting with that of the Respondent on this issue should not be accepted consequent upon his established dishonesty in evading payment of income tax on his earnings.
In making that submission she also acknowledged the Respondent’s difficult position in relation to her evidence on the threshold hearing on existence of a de facto relationship. At this point, I commented to both parties that each had conceded their dishonesty and that both had demonstrated a willingness to lie under oath – the Respondent before the court, the Applicant in his declarations on documentation submitted to the ATO.
The main thrust of Ms Kennedy’s oral submissions was that the Applicant had not demonstrated that he made any financial contribution directly into the relationship and that his only case rested on his assertions as to his renovation work and his contributions to care and support of Mr D.
She further considered that the evidence showed that the renovation work was far from a positive contribution and that whatever he did in relation to care and support of Mr D was entirely offset by what he had received from the relationship.
The Law
The law relating to the alteration of property interests between two parties in a de facto relationship is governed by section 90SM of the Act.[3] Relevantly in this case, section 90SM(1) vests the Court with power to alter the interests of the parties in property,[4] and the power to make orders providing for the settlement or transfer of property, as determined by the Court.[5]
[3] Family Law Act 1975 (Cth) s 90SM.
[4] Family Law Act 1975 (Cth) s 90SM(1)(a).
[5] Family Law Act 1975 (Cth) s 90SM(1)(d).
However, the Court must not make an order under section 90SM unless the Court is satisfied that, in all of the circumstances, it is just and equitable to do so.[6] The legislative process required by section 90SM was considered by the High Court in Stanford & Stanford (2012) 247 CLR 108.
[6] Family Law Act 1975 (Cth) s 90SM(3).
In that decision, the High Court held that section 90SM(3) requires that at the outset of the Court’s decision-making process the Court must consider whether or not, in all the circumstances, it is just and equitable to make an order under section 90SM(1) altering the interests of the parties to the de facto relationship in property.
In considering the proposition posed by this first step, a Court should start by identifying items under the following categories:
(1)The existing legal and equitable interests of the parties in property, according to ordinary common law and equitable principles;
(2)The existing liabilities of the parties, according to ordinary common law and equitable principles and under legislation; and
(3)The rights of the parties, if any, according to ordinary common law and equitable principles and under legislation, in relation to any asserted resources of the parties that may, if it is considered just and equitable to proceed with the property settlement, be taken into account in the Court’s consideration of the matters referred to in section 90SF(3) of the Act, to which section 90SM(4)(e) directs the Court’s attention.[7]
[7] Stanford & Stanford (2012) 247 CLR 108; see, especially, [37].
That the interests as described above are ‘existing’ is of importance, as the Court noted, because the text of the section gives reference to ‘altering’ the interests.[8]
[8] Stanford & Stanford (2012) 247 CLR 108, [37].
I further note the comments of the High Court in Stanford at paragraph 42 which I reproduce in full here:
[42] In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).
I will examine the matrimonial asset pool and the existing interests of the parties, before determining whether it is just and equitable to make a property adjustment order.
If the Court determines that it is just and equitable to make an order under section 90SM, the Court must then consider what orders are appropriate to be made. In doing so, I will follow the four-step process set out in Hickey & Hickey & Attorney-General for the Commonwealth of Australia [2003] FamCA 395 at [39].
In Hickey, the Full Court of the Family Court set out a process of four inter-related steps that must be taken by a court when determining a property application:
(1)First, “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”;[9]
(2)Second, “the Court should identify and assess the contributions of the parties within the meaning of section 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”; [10]
(3)Third, “the Court should identify and assess the relevant matters … (“the other factors”) including…the matters referred to in section 75(2) so far as they are relevant…”;[11]
(4)Fourth, “the Court should … resolve what order is just and equitable in all the circumstances of the case”.[12]
[9] Hickey [2003] FamCA 395, [39].
[10] Hickey [2003] FamCA 395, [39]. See also Family Law Act 1975 (Cth) s 79(4)(a)-(c).
[11] Hickey [2003] FamCA 395, [39].
[12] Hickey [2003] FamCA 395, [39].
The Full Court pointed out in Hickey that pursuant to the wording of section 90SM, there can only be one property settlement order at any one time, and that the one property settlement order is final, subject only to anything that may be properly done pursuant to section 90SN.[13]
[13] Hickey [2003] FamCA 395, [47].
The Full Court held in Fontana & Fontana [2018] FamCAFC 63:
[27] … Indeed, the authorities are consistent in finding that assessing contributions is not an accounting exercise but a holistic one (Brandt & Brandt (1997) FLC 92-758; Norbis & Norbis (1986) 161 CLR 513).
The Court is required to consider the parties’ contributions made on and from the commencement of their relationship, during their relationship, and following separation.[14]
[14] See, eg, Jabour & Jabour [2019] FamCAFC 78.
The approach to determining the appropriate percentage of the net value of property in relation to the contributions of the parties, at step two of the four-step process, requires an assessment of contributions by, or on behalf of, each of the parties in a holistic manner, rather than attaching specific contributions to a specific item of property and making a determination upon that basis. To do the latter would be to disregard the whole of the contributions made during the whole of the relevant period of the relationship by or on behalf of each of the parties.
As the Full Court said in Dickons & Dickons [2012] FamCAFC 154 at paragraphs 14 to 16:
[14] As is plain from earlier decisions of this Court, regard must be had to the use made of contributions of various types so as to compare the contributions made by each of the parties during the course of, and over the length of, their relationship (see, for example, In the Marriage of Pierce (1998) FLC 92-844) But that is an entirely different proposition to, as it were, causally linking contributions with their asserted financial “product” or “value”. The former recognises that the nature, form and extent of contributions made by each of the parties might differ; the latter suggests that the absence of a causal link counts as no contribution at all.
[15] The search for a causal link might be seen to come instinctively to the necessary inquiry and all the more so when regard is had to s 79(4)(a) which refers to financial contributions made “...directly or indirectly...” “...to the acquisition, conservation or improvement of any of the property ...” and goes on to also refer to the financial contribution made “...otherwise in relation to any of that last-mentioned property...” The terms of that sub-paragraph might, naturally enough, be seen to suggest a causal link between those contributions and the “financial product” which those contributions of that type are said to have produced. That same requirement might also be seen to suggest that relevant contributions of that type can be seen to be quantifiable – or, at least, conceptualised – in monetary terms, in contradistinction to contributions made pursuant to s 79(4)(c).
[16] While that apparent “causal connection” might be seen in s 79(4)(a) (and (b)), no such connection is apparent from the terms of s 79(4)(c); contributions of that latter type are not linked by the words of the sub-paragraph to the “...acquisition, conservation or improvement of any of the property...” or, indeed, to “property” at all. This is not a legislative oversight; the 1983 amendments to the Act which inserted the current s 79(4)(c) were specifically intended, relevantly, to remove any suggestion that there needed to be a causal link between contributions of that type and any particular asset or property. The Explanatory Memorandum to the Family Law Act Amendment Bill 1983 provides, at Clause 36, that a specific purpose of the re-casting of s 79(4) was, relevantly, to:
... revise sub-section 79(4) to remove the possibility of an interpretation of the sub-section requiring that there be a nexus between a spouse’s contribution and a specific item of property in section 79 proceedings ...
The Court is required to make a holistic value judgment in the exercise of a discretionary power of a very general kind.[15] The principle was expressed succinctly by the Full Court in the joint judgment of Bryant CJ and Ainslie-Wallace J in Fields & Smith [2015] FamCAFC 57 at paragraph 168:
[168] ... the task is to consider the contributions holistically over the whole period from the commencement of cohabitation to trial, and the analysis requires the Court to weight all of the contributions of all types prescribed by section 79(4) made by both parties across the entirety of the relationship until the time of Hearing, including the post-separation period.
[15] In the Marriage of Harris (1991) 104 FLR 458, 464.
The Full Court has been repeatedly clear that the approach to property settlement under section 90SM of the Act is not an accounting exercise. Here, I note the comments of the Full Court in Grier & Malphas (2017) 55 Fam LR 107 at paragraph 129, where Murphy and Kent JJ said:
[129] As the Chief Justice points out, with those principles in mind, the trial judge adopted a broad-brush approach to the parties’ respective expenditure. Nowhere error is established by reason alone of that approach; authority eschews “overly pernickety analysis” and section 79 demands neither an audit nor an exercise in accounting. However, when significant sums of money are said by one party or the other to have been “wasted” or to amount to a unilateral “premature distribution of property” and the evidence is suggestive of either or both, an analysis of the relevant sums and their use is needed.
Consideration
The Applicant asserts in his case that the court should take into account when considering whether it is just and equitable to proceed with any order altering the interests of the parties in the property and, if so, when considering the contributions of the parties, contributions that he asserts he made between the parties meeting in 2005 and the parties commencing their cohabitation around mid-2009.
When examining the authorities dealing with the relevance of contributions prior to commencement of cohabitation, the court is also assisted by a consideration of the authorities dealing with contributions made during a de facto relationship that at some point becomes a marriage, particularly such cases dealing with matters before the court acquired jurisdiction in relation to de facto relationship property matters in March 2009.
Those earlier authorities do not deal specifically with contributions made prior to any cohabitation, but make it plain that the contributions made during the de facto relationship prior to marriage can be relevant contributions jurisdiction was confined to marital relationships.
In Olliver & Olliver [1978] FamCA 24 the Full Court of the Family Court of Australia was dealing with a matter where the parties resided in a de facto relationship from March 1961, married in March 1972 and separated on a final basis in December 1975. The court referred to the case as presenting:
… the unusual circumstances of the long cohabitation of the parties before the marriage
and held that:
Section 79(4)(b) refers to “any contribution made as a homemaker or parent”. Such a contribution becomes relevant when the Court considers an application for an alteration of property interests. There is nothing in sec. 79(4)(a) or (b) which requires the Court to disregard financial or other material contributions made before the marriage. To disregard such contributions would clearly cause injustice in many cases.
… There is nothing in sec. 79 which expressly requires the court to disregard contributions as a homemaker or parent because they were made before the marriage. However, the fact that the parties were not married for a substantial portion of the time during which such contributions were made may have some weight when the Court comes to consider the justice and equity of the particular order which it contemplates. What such weight should be will depend on all the relevant circumstances of the particular case. …
By virtue of sec. 79(4)(d) the matters referred to in sec. 75(2)(k), namely the duration of the marriage and the extent to which it has affected the earning capacity of the party seeking provision are matters to be taken into account. There is, therefore, no reason for reading into sec. 79(4)(b) and implied qualification that a contribution as a homemaker and parent must be disregarded if it has been made before the marriage.
Furthermore, under sec. 75(2)o) the Court may take into account “any fact or circumstance which in the opinion of the Court, the justice of the matter requires to be taken into account”. Lengthy cohabitation before the marriage may be such a fact or circumstance which injustice should be taken into account …
In our view the Court is entitled to look at the whole of the history of the cohabitation of the Applicant and Respondent for the purposes of determining what alteration of property interests (if any) should be made, or what maintenance should be paid for the Respondent. In our view the evaluation of the Respondent’s contributions as a homemaker and parent should have taken into account her contribution both before and since the marriage.

Nygh J said G and G [1984] FamCA 60:
… nothing in [section 79(4)(c)] prevents me from taking into account a contribution made by a person who subsequently becomes a party to a marriage to the welfare of a cohabitation unit composed of the persons who are now known to me as the parties to the marriage in question. … I would be surprised if this court, which admittedly can only enforce rights arising out of a marriage, could not in determining what is just and equitable as between the parties take into account facts and circumstances outside the marital relationship. Again a ruling to the contrary would have wide and possibly devastating consequences for the jurisdiction of this court.
The Full Court in In the Marriage of Nemeth [1987] FamCA 12 said:
The essential question is, however, whether sec. 79(4)(c) enables the Court to take into consideration contributions which occurred before the marriage. …
It can be noted that a “party to a marriage includes a reference to a person who was a party to a marriage that has been dissolved or annulled”. This could imply that the terms “party to the marriage” or “parties to the marriage” serves to identify the parties rather than to fix the period of the marriage is the only period during which a relevant contribution might be made.
This view is reinforced by a consideration of the other paragraphs of sec. 79(4). For example, one party may in fact make a direct financial contribution to the acquisition of property of one or both parties before marriage. This is a common enough occurrence. …
The decisions of the Court have not made a distinction between pre-and post-marriage contributions for the purpose para of (a) and (b) of sec. 79(4). …
In Williams v Williams (1985) FLC 91-628 the High Court held that a contribution made to the welfare of the family after cohabitation ceased could be taken into account under para. (c). The issues canvassed before us were dealt with extensively in G and G, the reasoning of which we adopt. …
In principle there is nothing to require the exclusion of pre-marriage contributions.
In the unreported decision of the Full Court (Fogarty, Baker and McCall JJ) of Lozanov & Lozanov [1994] FamCA 60, a ground of appeal before the Court was that the trial Judge erred in holding that payments made by the Respondent for the wedding ceremonies were contributions under section 79(4) because the contributions were made prior to any cohabitation and the expenses did not have a sufficiently relevant connection with the subsequent marriage.
The court held that:
… Contributions made by parties prior to their marriage, whether or not they are cohabiting, can be treated as coming within s. 79 provided that the parties subsequently marry and provided that the matters in question have a sufficiently relevant connection with the marriage to be treated in that way.
The same must of course apply to contributions made by parties prior to commencement of their de facto relationship provided that the parties subsequently enter into a de facto relationship that brings them within the jurisdiction of the court under section 90SM.
In Beneke & Beneke [1996] FamCA 82 the Full Court said:
[37] An essential component of Mr Broun’s submission was that it is legitimate for the Court to take into account under s 79 contributions which have occurred pre-marriage. In that context, Mr Broun referred us to cases such as Olliver and Olliver; G and G; Nemeth and Nemeth and Kowalski and Kowalski (1993) FLC 92-342. It seems to us that those cases support that proposition which is now well-established in this Court. To the extent that Kowalski’s case may suggest that, once the parties have or had been married, any financial dealings, no matter how far they pre-date or post-date the marriage, are encompassed by s 79, we have reservations about that as we feel that there must be some causal or at least temporal connection, but this is of no significance in this case.
[38] Mr Mater, for the Respondent, submitted that pre-marriage contributions may only be taken into account if they occurred during the cohabitation of the parties and that there is no basis for the view that s 79 can apply to an unconditional gift made prior to marriage and cohabitation.
[39] Whilst pre-marriage cohabitation is the most common circumstances in the reported cases, there is no basis in s 79 or any valid social justification for that view. In the unreported decision of the Full Court in Lozanov (8 June, 1994, Fogarty, Baker and McCall JJ) the Court specifically rejected that argument, concluding that contributions made by parties prior to the marriage, whether they work cohabiting or not, can be treated as contributions under s 79 provided the parties subsequently marry and the matters have a sufficiently relevant connection with the marriage.
In Hamilton & Thomas [2008] FamCAFC 8 the Full Court referred to a statement made by the trial judge Le Poer Trench J after citing cases referred to above:
The clear conclusion arising from the above referred to cases is that cohabitation is not a necessary ingredient in order to consider pre-marriage contributions.
Finally, and of course most authoritatively, the decision of the High Court of Australia in Hsiao v Fazarri [2020] HCA 35 makes it plain that contributions made prior to marriage or a de facto relationship may also be taken into account, approving Cronin J’s finding in the trial phase of the matter that a gift of a portion of real property made by one party to the other in April 2014, where the parties married in August 2016 and did not form a de facto relationship prior to the marriage, was properly treated as a financial contribution to the acquisition of the real property.
The Property
If in all the circumstances it is just and equitable to make an order under section 90SM altering the interests of the parties in the property, I must identify, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. I used the term ‘the property’ in the sense that it is used in that section, to encompass the relationship property pool taking into account the relevant assets, liabilities, any add back considerations and superannuation.
In this matter, happily, the task is rendered simple for the court as counsel for the Respondent and solicitor advocate for the Applicant by their skill were able to, on instructions, present a joint balance sheet to the court that resolved almost all issues of relevant assets, liabilities and superannuation, and the values thereof. The joint balance sheet was entered into evidence as Exhibit C1.
An exception relates to a debt owed by the Applicant to the Australian Taxation Office in a sum of $39,729 (evidenced in Exhibit A4) that the Applicant asserts is a liability properly to be considered in the composition of the relationship property pool as relating to income earned during the period of cohabitation, but that the Respondent asserts should be disregarded when asserting the relationship property pool as the Applicant presented no evidence as to when the dead arose, Exhibit A4 providing no assistance in that regard.
The parties separated in July 2015, nearly six years prior to the final hearing. The Applicant presented evidence in paragraph 53 of his trial affidavit of his taxable income for each of the financial years ended 30 June 2010 through to 2015, spanning the period of the parties’ cohabitation. He asserts that the information is taken from his taxation returns and notices of assessment for the relevant financial years. He did not put those documents into evidence.
From the amounts to which he deposes, it is difficult to see that the Applicant would have an income tax debt of $39,729 relating to those years unless he in fact paid no tax in those years. From his evidence, it would seem that the monies on which he did not pay tax through those years were the cash payments he received and did not disclose in his income tax returns. He gives no evidence of having accumulated an ongoing and yearly increasing income tax debt through those years. The more likely scenario on the evidence is that his income tax debt relates to taxable income received by him post-separation.
I find that it is not appropriate to include the Applicant’s unpaid income tax debt to the Australian Taxation Office in a sum of $39,729 as referred to in Exhibit A4 and calculation of the relationship property pool.
Three other items on the joint balance sheet relate to the parties’ legal fees. Item 10 asserts a liability of $30,261 owed by the Applicant to his solicitors and item 11 asserts a debt of an estimated $9000 owed by the Respondent to her solicitors. Item 19 under the heading “Financial Resources”, refers to $17,200 being held upon trust for the Respondent by her solicitors.
To include liabilities of each of the parties to their respective solicitors for outstanding legal fees when calculating the relationship property pool is to involve each of the parties in the other party’s payment of their legal fees, having the effect of being a de facto costs order under section 117 of the Act. To do that is to do so without evidence and submissions that ground a court’s consideration of the matters under section 117(2A) and a consequent proper consideration of those matters.
I find that items 10 and 11 on the joint balance sheet relating to outstanding legal fees for each of the parties to their solicitors acting on the final hearing should not be included when calculating the relationship property pool.
For the same reasoning, monies held upon trust by the solicitors acting for a party to be applied towards that party’s legal fees would normally be included in calculation of the relationship property pool, particularly where such funds have come from capital, especially if the source capital is or would have been an asset properly included in the calculation of the pool.
However, in this matter, item 19 in the sum of $17,200 held upon trust for the Respondent by her solicitors has been included on the joint balance sheet under the heading “Financial Resources” and has not been included in calculation of the Applicant’s view of the relationship property pool, based upon the Applicant’s assertion that he should receive property to the value of $660,900, where that sum is fifty percent of the net relationship property pool as asserted by him composed of the assets, liabilities and superannuation.
Items 13 and 14 on the joint balance sheet under “Liabilities” are a Visa card debt in a sum of $1373 and an American Express debt in the sum of $441, both owed by the Respondent. Again, on the basis that it has been nearly six years between separation and the final hearing, I find that it is appropriate to disregard those debts in calculation of the relationship property pool
Accordingly, I find that there is no property jointly owned by the parties and no liabilities jointly owed by the parties. I set out hereunder what I find to be the elements relevant for calculation of the relationship property pool and the column indicating ownership or liability by a party represents my finding as to the existing legal and equitable interests of the parties in the property.

ASSETS

1. Respondent B Street, Suburb C, NSW $1,725,000

2. Respondent Motor Vehicle 1 $12,000

3. Respondent Commonwealth Bank account number #...61 $3281

4. Respondent Personal belongings $7000

5. Applicant Westpac account number #...80 $11,213

6. Applicant Cars and motorcycles $34,500

7. Applicant Personal belongings $2000

TOTAL ASSETS $1,794,994.00

LIABILITIES

8. Respondent Loan account secured by mortgage on the B Street, Suburb C property $686,698

TOTAL LIABILITIES $686,698.00

SUPERANNUATION

9. Applicant Super Fund 1 – accumulation fund $32,724

10. Respondent Talbot superannuation plan –SMSF $197,889

11. Respondent Super Fund 2 – accumulation fund $33,540

TOTAL SUPERANNUATION $264,153.00

The net asset pool excluding superannuation is $1,108,296. The net asset pool including superannuation is $1,372,449.
It is the Respondent’s case that it is not just and equitable to proceed with making any order altering the interests of the parties in the property.
The principal assets in the composition of the relationship property pool are the B Street, Suburb C property of which the Respondent is the sole owner in law and equity, and the Respondent’s superannuation.
The Respondent made, overwhelmingly, the greater initial financial contribution if considered at the date the parties commenced their cohabitation – her marital property, her P Street, Suburb Q property, some accumulated superannuation, household contents in the ~~occupied at~~ M Street, Suburb E property, and Motor Vehicle 2.
The Applicant contributed some accumulated superannuation with Super Fund 1 of approximately $12,000, a Motor Vehicle 3, some motorcycles, some tools, and personal effects. None of the values of these initial contributions at the commencement of cohabitation are in evidence other than the Applicant’s approximation that his superannuation had a value of $12,000.
Though the evidence on each side is conflicting and I have found I should be cautious in relation to the evidence of both parties, it is plain on the evidence that the Applicant made some contribution to the Respondent’s P Street, Suburb Q property and the Respondent’s M Street, Suburb E property prior to commencement of cohabitation and thereafter until its sale, though there is no evidence before the court of the value of those contributions or if, indeed, they at any time had any value.
It is also plain on the evidence that the Applicant made some contribution to improvement of the B Street, Suburb C property, at least in the course of the second B Street, Suburb C renovation, all of his work on the first B Street, Suburb C renovation having come to nought by being ripped out by the qualified tradesman, Mr S.
I also find that the Applicant involved himself in the day-to-day parenting of Mr D, not to the full extent that he deposes, but certainly to an extent beyond that to which the Respondent deposed. Whilst this is not a contribution for consideration under section 90SM(4)(c) as Mr D is not a child of the de facto relationship,[16] it is a matter that the court can take into account under section 90SM(4)(e) when considering the matters in section 90SF(3).[17]
[16] Family Law Act 1975 (Cth) s 90RB.
[17] Inthe Marriage of Robb (1994) 18 Fam LR 489.
The Respondent conceded on a number of occasions during her cross examination that the Applicant had made contributions to the parenting of Mr D and providing financial support for him and to the various renovations both on a project management basis, a performance of work basis and in dealing with the Mr S situation leading to the Respondent sacking Mr S from the job.
I find that the Applicant did make financial contribution to the day-to-day living expenses of the family unit other than during the two periods of the first B Street, Suburb C renovations and the second B Street, Suburb C renovations and that the benefit to him of having accommodation in the successive properties owned by the Respondent – M Street, Suburb E and then B Street, Suburb C – does not adequately do justice and equity as between the parties so as to ground a finding that it is not just and equitable to proceed with consideration of orders altering the interests of the parties in the property.
I find that it is just and equitable to proceed with consideration of appropriate orders altering the interests of the parties in the property.
Consideration of the contributions of each of the parties
I find that the Respondent has made overwhelmingly the greater contribution at the commencement of cohabitation, particularly through her sole ownership as between the parties of the P Street, Suburb Q and M Street, Suburb E properties.
I find that the Applicant made a contribution that the circumstances of the case justifies being taken into consideration when assessing the relative contributions of the parties, between when the parties met in 2005 and the commencement of cohabitation in about mid-2009, such contribution being by way of assistance to the Respondent with the management of her rental properties and his labour in repairs and some renovation of those properties.
I find that the Respondent made overwhelmingly the greater financial contribution during the parties’ cohabitation and that she was solely responsible as between the parties for purchase of the B Street, Suburb C property, including payments to the loan account secured by mortgage over the property that was obtained initially for purchase and in relation to other outgoings that go to ownership such as council rates and insurances. I find that the Respondent also made the greater contribution as between the parties to the financial support of the family unit during the parties’ cohabitation.
I find that the Applicant made a contribution, though to a far lesser degree than the Respondent, to the B Street, Suburb C property in relation to his labour and some expenditure by him, though minor compared to the Respondent, on the second B Street, Suburb C renovations. I find that the work done and any expenditure by the Applicant on the first B Street, Suburb C renovations is not a contribution by him, all such having come to nothing.
I find that the Respondent made contributions post-separation by her payments of required payments on the loan account secured on the B Street, Suburb C property and payment of the other outgoings that relate to ownership such as council rates and insurances.
Whilst the Applicant obtained initially rental accommodation at his own expense and later occupied his campervan as his accommodation, I do not find that the occupation of the B Street, Suburb C property by the Respondent and Mr D post separation is a contribution of any nature by the Applicant. At no time has the Applicant had a legal or an equitable interest in the B Street, Suburb C property.
Both parties had some superannuation entitlements at the commencement of cohabitation, the Applicant giving evidence that his superannuation had a value of approximately $12,000 and there be no evidence and the Respondent as to the value of her superannuation at the start of cohabitation.
Both parties accumulated further superannuation during the six years of their cohabitation, though the Respondent was in constant employment whereas the Applicant had periods out of employment, specifically during the first and second B Street, Suburb C renovations. During those periods, and despite his work actually done on the B Street, Suburb C property during the first B Street, Suburb C renovations coming to nothing, it is apparent on the evidence that he managed those projects to the greater extent as between himself and the Respondent and in particular the legal matters surrounding the termination of the Mr S contractual participation, and that his participation in this regard freed the Respondent to maintain her constant employment.
Since the parties’ separation in July 2015, there has been no contribution by either party to the other party’s superannuation entitlements. The Respondent’s superannuation entitlements were valued at hearing at $231,429, the Applicant’s at $32,724. However, that disparity in value is to some extent explained by the Applicant’s admitted course of conduct in receiving cash payments from employers or on contract for his work as a construction worker, which has the effect not only of evasion of taxation, but of that income not being considered in relation to employer compulsory contributions to superannuation for the Applicant. In short, at least in part, and perhaps a major part (though the evidence does not assist the court to make a finding either way) of the significant disparity in the value of the parties’ relevant superannuation entitlements flows from the Applicant’s long-term course of conduct of receiving cash payments for his employment undisclosed to the Australian Taxation Office.

I find that the Applicant should not benefit from his illegal tax evasion wherein as a consequence he has to his own detriment avoided an accumulation of employer compulsory superannuation contributions.
In relation to the available asset pool, I find that the contributions of the parties favour the Respondent as to 87.5%, the Applicant’s contributions being 12.5%.
In relation to the superannuation entitlements pool I find that contributions also favour the Respondent as to 87.5%, the Applicant’s contribution being 12.5%.
On that basis, I consider that it is appropriate in this matter to treat the relationship property pool by a single pool approach.
Consideration of any adjustment between the parties for the matters under section 90SM(4)(d) and (e) - section 90SF(3)
At the time of the final hearing, the Applicant was 62 years of age and the Respondent was 60 years of age.
There is no evidence that the Respondent has any health issues that require consideration and on the evidence the Respondent is physically and mentally capable of engaging appropriate gainful employment.
The Applicant relies on the affidavit of Dr K, Shoulder, Elbow, Wrist and Hand Orthopaedic Surgeon, the Applicant’s treating medical specialist. Annexed to the affidavit is a copy of report by Dr K dated 30 July 2020. The report recites that the Applicant suffered a complex left elbow fracture dislocation secondary to a fall from height in 2014.
The fall referred to is the Applicant’s fall from a tree at the B Street, Suburb C property during the parties’ temporary separation in 2014. The Applicant underwent surgery shortly thereafter and further surgery in 2018 to remove a stainless steel plate and screws from the initial surgery. The doctor recites that the Applicant:
… does have a limitation of left elbow function secondary to this injury. He has a restricted range of motion, with an inability to completely straighten his elbow, at approximately 15°. He has moderate weakness and a persistent mild elbow ache.
The report states that the Applicant’s employment as a construction worker is accordingly limited to work on the ground as there are safety issues with him climbing high ladders. The doctor notes further that:
… for this degree of injury he has actually had a very good outcome and is quite fortunate to have a functional elbow. Any deterioration in respect to progressive osteoarthritis I expect to be over many years and also related to the amount of heavy work required from the elbow during that period.
The doctor notes that no further surgery is required unless there is “a deterioration in relation to pain and function secondary to osteoarthritis”.
In relation to the comment by Dr K in the report that the Applicant’s current employment “is limited to work on the ground” due to “safety issues with climbing high ladders”, I note the evidence of the Applicant in his supplementary affidavit in August 2020, a month after the date of the medical report by Dr K, that:
[Construction work] involves climbing which entails climbing and [sic] internal climbing ladder which is often 50-80 m high. This puts considerable strain on my left arm and I am largely reliant strength in my right arm to hoist me up the ladder and get me back down. This procedure can be somewhat precarious-I [sic] am always very careful but I know that it would be easy to fall.
Though at the time of making that affidavit the Applicant was off work due to undergoing treatment for cancer from August 2020, he said in paragraph 26 (f) of the affidavit:
I hope that I can obtain employment with the same company after I recover from my cancer treatment.
There is no evidence from the Applicant as to his employment status as at the time of the hearing on 31 March and 1 April 2021. During his evidence in chief at the start of the hearing he did not describe his occupation and he did not give any evidence about his current employment status.
The Applicant gave evidence in relation to the operation by him of machinery on construction sites. He gives evidence of his inability to undertake a construction position, but such evidence is not backed by the medical evidence presented on his behalf. On all of the evidence, I cannot find that the Applicant is unemployable in his occupation a construction worker, though he no doubt has some limitations.
The Respondent deposes to a weekly income of $2738 composed of her salary from her employment as a medical professional at the Employer AD and $430 per week rental income received in relation to the downstairs flat at the B Street, Suburb C property. This equates to an annual income of $142,324.
The Applicant deposes in his Financial Statement of 25 August 2020, seven months prior to the final hearing, that he was at that time unemployed with nil income and that his only expenses were motor vehicle registration expenses for a range of vehicles and motorcycles, petrol, food ,and a storage unit, and “sundry expenses” of $50 per week.
The Applicant noted in that Financial Statement that he has had “casual work as a construction worker in the last few months.” When paired with his evidence in his supplementary affidavit of the same date of being unemployed with nil income due to undergoing treatment at AE Hospital for cancer (such treatment to conclude on 16 October 2020), the evidence does not assist me as to the Applicant’s employment or income status at the time of the final hearing.
The property and financial resources of each of the parties has been examined earlier in these Reasons.
Commitments of the Applicant necessary to support himself in his circumstances at the time of hearing of residing in his motorhome have been referred to above. Commitments of the Respondent necessary to support herself are set out in her Financial Statement of 2 September 2020 in which she deposes that her work expenditure is less than her income from her employment and rental income and also notes a contribution of $150 per week from her son, Mr D, to the household expenses.
On all of the evidence, I find that there is the basis for an adjustment in favour of the Applicant in consequence of the disparity in their financial circumstances for the future, but that such adjustment must take into account the age of each of the parties and consequent proximity to available retirement age.
It may be that the Applicant, at the time of preparation of his supplementary affidavit and Financial Statement and even at the time of hearing, may have been eligible for some pension, allowance or benefit under the laws of the Commonwealth given the financial position he sets out in his Financial Statement of 25 August 2020, but there is no evidence of him being in receipt of such or having made application for such, item 12 “Government benefits” showing “NIL”. The Respondent’s corresponding item 12 is left totally blank, but it is unlikely that she had an eligibility given her income level.
Despite the Applicant’s circumstance of residing in his motorhome I do not find that a consideration of “a standard of living that all the circumstances is reasonable” justifies an adjustment between the parties as the Applicant has chosen that mode of accommodation in the past during the parties’ cohabitation. He has also moved to that accommodation from normal rental accommodation post separation and there is not adequate evidence for a finding to be made that the Applicant has no alternative in relation accommodation or has sought alternative accommodation, therefore suggesting that residing in a motorhome was at the time of hearing a matter of his choice.
I find that there is no basis for an adjustment between the parties in relation to the contribution by each to the income, earning capacity, property and financial resources of the other party or in relation to the duration of the de facto relationship as I do not find that the duration of the de facto relationship has affected the earning capacity of either party. The Applicant’s difficulties are consequent upon his fall from a tree, whilst, on the evidence, he may have been affected by use of marijuana.
Neither party is cohabiting with another person.
The Applicant’s role in the parenting and financial support of Mr D is a matter properly to be considered within the parameters of section 90SF(3)(r) “any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account”. I refer to the well-known Full Court authority of In the Marriage of Robb mentioned earlier.[18]
[18] In the Marriage of Robb (1994) 18 Fam LR 489.
I do not consider that the Applicant’s engagement with the parenting of Mr D in the period from 2005 until commencement of the cohabitation around mid-2009 should be a component of assessment of appropriate adjustment for this consideration, as I consider that during that period his actions were in line with those of a person in a non-cohabiting romantic relationship with a child’s parents who forms a relationship with a child and assists with the child’s parenting and occasional financial support, particularly in relation to outings and regular attendance at extracurricular activities, and that such does not have the necessary relevance in connection to the subsequent de facto relationship to be so considered.
The Applicant’s participation in Mr D’s parenting and support during the six years of the de facto relationship is a matter that finds in favour of an adjustment in his favour.
Overall I find that an adjustment in favour of the Applicant of 5% is appropriate in relation to the relevant considerations in section 90SF(3), and that such adjustment should be applied to both pools.
Accordingly, Applicant’s share of the net relationship pool on an alteration of the parties’ interests in the property is 17.5% in the Respondent’s share is 82.5%.
Conclusion
The Respondent has ownership as between herself and Applicant of the B Street, Suburb C property, the Motor Vehicle 1, a Commonwealth Bank account ending #...61, and her personal belongings, total value $1,747,281. The Respondent is solely responsible as between the parties for payment of the loan account secured on the B Street, Suburb C property by mortgage in a sum of $686,698. The Respondent’s superannuation entitlements are valued at $231,429. The Respondent’s net position in the relationship property pool is $1,292,012.
The Applicant has ownership as between himself and the Respondent of his Westpac Bank account ending #...80, his cars and motorcycles and his personal belongings, valued at $47,713. The Applicant’s superannuation entitlement is valued at $32,724. The Applicant’s net position in the relationship property pool is $80,437.
The gross property pool of available assets including superannuation entitlements is $2,059,147. The net pool including superannuation after deduction of the loan account secured by mortgage on B Street, Suburb C property of $686,698 is $1,372,449.
A division of the net relationship pool between the parties in the proportions I have determined is appropriate will have the Applicant receive 17.5% which equals $240,178.57 (rounded to $240,179) and the Respondent receive 82.5%, which equals $1,132,270.
To achieve what I have determined is the appropriate, just and equitable alteration of the relationship property pool (‘the property’) between the parties an order must be made that the Respondent pay to the Applicant $159,742.
Neither party sought a superannuation splitting order. The Respondent’s case is that there should be no alteration of the parties’ interests in the property, whereas the Applicant asserted that any alteration should be by way of a payment in money from the Respondent to the Applicant. No submissions were made or sought by the court from the parties in relation to a superannuation splitting order.
I find that the appropriate order between the parties altering their interests in the property on the basis I have found to be just and equitable is an order for payment by the Respondent to the Applicant of $159,742 and that such payment should be made within three months from the date of final orders to enable the Respondent to obtain the necessary finance. Taking into account the effect of the Christmas period at the end of 2022 on business, I propose to ‘start the clock’ on the deadline operating on the Respondent from the second week in January, when many brokers would have returned to ordinary business operations. I also consider that orders should include provision for enforcement of such payment on failure of compliance by the Respondent to a sale of the B Street, Suburb C property and application of proceeds of sale to satisfaction of the payment order in favour of the Applicant.
I find that otherwise each of the parties should retain their own property and that the Respondent should be solely responsible as between herself and Applicant for the loan account in her sole name secured on the B Street, Suburb C property by mortgage.
No application was pressed on final hearing by the Applicant in relation to change of possession as between himself and the Respondent of any of the personal property originally sought by him.
I make the orders set out at the start of these Reasons.

I certify that the preceding two hundred and sixty-eight (268) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Morley.
Associate:
Dated: 16 December 2022

File number(s):	SYC 3345 of 2017
Judgment of:	JUDGE MORLEY
Date of judgment:	16 December 2022
Catchwords:	FAMILY LAW – property – final property settlement orders sought by Applicant – Respondent’s case that it is not just and equitable to make any property settlement orders – previous contested de facto threshold proceedings conceded by Respondent – strong inference that Applicant evaded income taxation for several years – resultant issues of credit with each party – Respondent holds significant portion of asset pool – Applicant’s contributions inter alia as homemaker and by renovations to Respondent’s real property including pre-cohabitation – consideration of contributions made pre-cohabitation – just and equitable to make an adjustive order.
Legislation:	Evidence Act 1995 (Cth) s 50 Family Law Act 1975 (Cth) ss 90SF, 90SM, 90SN, 117
Cases cited:	Bacall & Zagar [2020] FamCA 350 Beneke & Beneke [1996] FamCA 82 Dickons & Dickons [2012] FamCAFC 154 Fields & Smith [2015] FamCAFC 57 Fontana & Fontana [2018] FamCAFC 63 G and G [1984] FamCA 60 Grier & Malphas (2017) 55 Fam LR 107 Hamilton & Thomas [2008] FamCAFC 8 Hickey & Hickey & Attorney-General for the Commonwealth of Australia [2003] FamCA 395 Hsiao v Fazarri [2020] HCA 35 In the Marriage of Harris (1991) 104 FLR 458 In the Marriage of Nemeth [1987] FamCA 12 In the Marriage of Robb (1994) 18 Fam LR 489 Jabour & Jabour [2019] FamCAFC 78 Jones & Dunkel (1959) 101 CLR 298 Lozanov & Lozanov [1994] FamCA 60 Olliver & Olliver [1978] FamCA 24 Sedgwick & Lind [2021] FamCA 605 Stanford & Stanford (2012) 247 CLR 108 Whiton & Dagne [2019] FamCAFC 192 Zappacosta & Zappacosta [1976] FamCA 56
Division:	Division 2 Family Law
Number of paragraphs:	268
Date of last submission:	5 July 2022
Date of hearing:	31 March 2021, 1 April 2021
Place:	Sydney
Solicitor for the Applicant:	Mr Brown of Browns the Family Lawyers
Counsel for the Respondent:	Ms Kennedy
Solicitor for the Respondent:	Windsor Law Group

SYC 3345 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR MACKINNON Applicant
AND:	MS TALBOT Respondent

order made by:	JUDGE MORLEY
DATE OF ORDER:	16 Decmeber 2022

ASSETS
1.	Respondent	B Street, Suburb C, NSW	$1,725,000
2.	Respondent	Motor Vehicle 1	$12,000
3.	Respondent	Commonwealth Bank account number #...61	$3281
4.	Respondent	Personal belongings	$7000
5.	Applicant	Westpac account number #...80	$11,213
6.	Applicant	Cars and motorcycles	$34,500
7.	Applicant	Personal belongings	$2000
TOTAL ASSETS			$1,794,994.00
LIABILITIES
8.	Respondent	Loan account secured by mortgage on the B Street, Suburb C property	$686,698
TOTAL LIABILITIES			$686,698.00
SUPERANNUATION
9.	Applicant	Super Fund 1 – accumulation fund	$32,724
10.	Respondent	Talbot superannuation plan –SMSF	$197,889
11.	Respondent	Super Fund 2 – accumulation fund	$33,540
TOTAL SUPERANNUATION			$264,153.00