McGee and Kerr

FEDERAL CIRCUIT COURT OF AUSTRALIA

MCGEE & KERR

[2013] FCCA 402

Catchwords:
FAMILY LAW – Alteration of property interests – de facto relationship – when it commenced and concluded – assessment of contribution.

Legislation:

Family Law Act 1975, ss.4AA, 79, 90SB, 90SF, 90SM

Family Law Rules 2004

Cases cited:
Aitken & Deakin [2010] FMCAfam 35
Clisbey & Vas [2011] FamCA 611
Hickey & Hickey & Attorney-General of the Commonwealth of Australia (Intervenor) (2003) FLC 93-143
Norbis v Norbis (1986) 161 CLR 513
Taisha & Peng [2012] FamCA 385
Webb & Douglas [2012] FMCAfam 1049

Applicant:

MR MCGEE

Respondent:

MS KERR

File Number:

SYC 3088 of 2012

Judgment of:

Judge Altobelli

Hearing dates:

14 December 2012 and 22 April 2013

Date of Last Submission:

22 April 2013

Delivered at:

Sydney

Delivered on:

4 June 2013

REPRESENTATION

Counsel for the Applicant:

Mr Levy

Solicitors for the Applicant:

Dimocks Family Lawyers

The Respondent (self-represented)

ORDERS

That within four (4) months from the date of these Orders, the Respondent pay to the Applicant the sum of $150,000 (“the Principal Sum”).
That if the said Principal Sum is not paid within the period specified in Order 1, the Respondent pay to the Applicant interest on the said sum pursuant to Rule 17.03 of the Family Law Rules 2004 and calculated form the due date until the date of payment in full on so much as is from time to time outstanding.
That in the event the Respondent has not complied with Order 1 above, within five (5) months from the date of these Orders, the Respondent shall forthwith and thereafter do all such acts and things and sign all such deeds, documents, instruments and writings as may be necessary to effect a sale of the property known as Property H (“the Property H”) and more particularly described in Certificate of Title Folio Identifier (omitted) and in particular shall:
(a)Immediately list the Property H property for sale by public auction with such firm of estate agents as may be nominated by the Applicant (“the auctioneers”);
(b)Give all necessary instructions to a firm of Solicitors (“the Solicitors”) to have the primary conduct of the sale and to prepare a contract for sale, with the Solicitors to again be appointed by the Applicant;
(c)Cooperate in every way with the auctioneers, including but not limited to, making the keys available to the auctioneers and allowing inspection of the property at all reasonable times requested by the auctioneers, and ensuring that the Property H property including the grounds are in a neat and clean condition at the time of inspection by the auctioneers and prospective purchasers;
(d)Execute all documents requested by the auctioneers and the Solicitors in relation to the sale of the Property H property;
(e)Attend the auction sale and, in the event that the Property H property is passed in at auction, negotiate with the highest bidder at the auction;
(f)Accept the advice of the auctioneers as to a suitable reserve price, and as to the acceptance of an offer below the reserve price, in the event that the Property H property is passed in at auction;
(g)In the event that the Property H property does not sell at auction, re-list the said property for sale by auction at intervals of no more than six (6) weeks, upon the same terms and conditions as set out above, until the property is sold;
(h)Upon settlement of the sale of the property, procure that the proceeds of such sale be distributed as follows, and according to the following priority:
(i)In payment of the auctioneers’ costs on the sale;
(ii)In payment of legal costs and disbursements incidental to the sale;
(iii)In payment of the amount required to discharge the mortgage secured over the property;
(iv)In payment to the Applicant of the Principal Sum still outstanding to him together with interest thereon, calculated in accordance with Order 2;
(v)The balance thereafter remaining to be paid to the Respondent.
That otherwise as provided herein, the Applicant and Respondent shall each be entitled to retain to the exclusion of the other all property and chattels of whatsoever nature and kind in the possession of such party as at the date of these Orders, and for that purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank records thereof, insurance policies are deemed to be in the possession of the beneficiary thereof, superannuation entitlements are deemed to be in the possession of the person who is named as the worker.
That otherwise than provided herein, the Applicant and the Respondent shall each otherwise be and remain liable for any debts in their own name as at the date of these Orders, and in this respect, shall indemnify and keep indemnified the other form any liability in relation thereto.
That in default of the parties or either of them doing all acts and things and executing all such documents as are necessary to give effect to these Orders, a Registrar of the Family Court of Australia at a Sydney Registry be appointed pursuant to s.106A to execute all such documents in the name of the party in default and to do all such acts and things necessary to give validity and operation to the said orders.
That pursuant to s.81 of the Family Law Act 1975 the parties intend that these Orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.

IT IS NOTED that publication of this judgment under the pseudonym McGee & Kerr is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYC 3088 of 2012

MR MCGEE

Applicant

And

MS KERR

Respondent

REASONS FOR JUDGMENT

Introduction

When two adults enter into a non-marriage relationship that later breaks down, the legal consequences of their relationship breakdown is determined by reference to law, and not by reference to their own subjective notions about when the relationship started and ended, how they perceive the nature of their relationship, and the value of the roles that they played in it.
The applicant in this case is 53 years old, currently residing in South Australia, and describing himself as a (omitted) in (omitted). The respondent is also 53 years old. She lives in Sydney and describes herself as a (omitted). He says their de facto relationship began in May 2007, she says it was in September 2007. He says that their relationship ended in August 2010, but she contends that it ended in November 2008, but what happened is that he refused to vacate the premises. It seems common ground that the parties physically separated in August 2010 when the applicant left the property that they were occupying in Property H. The applicant contends that their relationship continued between May 2007 and August 2010, albeit there were periods when they were physically apart because of work, study or other commitments. The respondent contends that the relationship was discontinuous. She says the first period lasted about 14 months and that, if it resumed at all, the second period lasted about six (6) months.

Background

The parties appear to have met in 2005, and appear to have been friends in the period up until May 2007. Both parties agree that in May 2007 the applicant stayed with the respondent in an apartment she owned at Property M, in Sydney. He contends that their relationship started in May 2007, whereas the respondent says it did not start until September 2007. Not much really turns on whether the relationship started in May or September 2007.
In any event in December 2007 the respondent purchased the property at Property H, the property which becomes the focal point for these proceedings. She had been looking for property for a long time, assisted by him at times, but she ultimately agreed that he found this particular property on the internet. By January 2008 completion of the purchase had taken place. The property was purchased in the respondent’s name only.
On the respondent’s case, the relationship ended in October 2008. She says that she asked the respondent to move out on multiple occasions commencing from that time, but he declined. In any event, even on the respondent’s case, up until November 2008 they talked about financial contribution to the property, and to the household.
There are very different accounts about what took place in 2008. For all practical purposes the respondent’s case was that the applicant was an unwelcome guest in her home, whereas the applicant’s case is that they were living in a de facto relationship and he was making substantial contributions towards the property, both financially and non-financially. It does seem clear that there were periods in 2009 when he was in Adelaide, while she was in Sydney, but they seem to have spent time with each other in both places.
The different perspectives of the nature of their relationship continued through 2010. The evidence of both parties will need to be carefully considered in order to making finding about the nature of their relationship during the relevant periods.
In any event, it is common ground that in August 2010 a separation in a physical sense occurred, the applicant moved out of the Property H property, and the respondent has continued in occupation since then. The present proceedings were commenced in May 2012.
A strong impression formed from the evidence of both parties is that their relationship was a tumultuous one, at times.

The proceedings and evidence

The practical effect of the orders sought by the applicant was that the respondent pay to him about $187,000. Conversely, the respondent proposed that he get nothing.
The applicant was represented by a solicitor and counsel. The respondent represented herself though it is clear from some of her documentation and the manner in which she conducted these proceedings that she had access to legal advice. The respondent impressed as an intelligent, articulate woman, though lacking in objectivity. It is quite likely that a more dispassionate, independent approach to the respondent’s case would have resulted in a settlement.
The applicant’s evidence consisted of his own affidavit and financial statement, and the affidavits of Mr E, Ms D, Mr G and Mr B.
The evidence in the respondent’s case consisted of her affidavit, financial statements, and affidavits by Ms A, Mr M and Ms S.
Mr P was appointed as the single joint expert property valuer.
The parties agreed that the only people required for cross-examination were to be the parties themselves.
It will be necessary to make credit findings in this case. The applicant and respondent have completely different perceptions of the nature of their relationship. Counsel for the applicant submitted that there were real issues about the respondent’s honesty in her evidence. As will be seen below, the court disagrees in this regard. Both parties had very a different perspective about their relationship. They were genuine in what they believe, but only one version can survive the test of objective critical scrutiny of the facts. Regrettably, emotion was allowed to cloud good judgment and distort the capacity of one party to see things clearly, and not through the distorted lens of hindsight.

The balance sheet

There were no issues between the parties about the assets and liabilities available to them. The agreed balance sheet is reproduced below.

BALANCE SHEET

Ownership		Description			Wife/de facto partner’s value	Husband/de facto partner’s value
ASSETS
1	H	Property L			$690,000	$690,000
2	W	Property M			$330,000	$330,000
3	W	Property H			$1,000,000	$1,000,000
4	W	Property T (25% interest)			$105,000	$105,000
5	H	Bank Savings in NAB			$50	$50
6	W	Bank Savings in NAB			$32,000	$32,000
7	W	(vehicle omitted) motor vehicle			$10,500	$10,500
8	H	Bicycle			$300	$300
9	H	Guns			$2,000	$2,000
10	H	Household Contents			NIL	NIL
11	W	Household Contents			$25,000	$25,000
TOTAL	$2,194,850	$2,194,850
ADDBACKS
12
13
TOTAL
LIABILITIES
14	H	Mortgage for Property O property			$429,481	$429,481
15	W	Mortgage for Property T property (50% of $154,000)			$77,000	$77,000
16	H	HECS Liability			$26,000	$26,000
17	H	Taxation Liability			NIL	NIL
18	H	Credit Card			NIL	NIL
19	H	Loan from Respondent			$10,000	$10,000
TOTAL	$542,481	$542,481
SUPERANNUATION
Member		Name of Fund		Type of Interest	Wife/de facto partner’s value	Husband/de facto partner’s value
20	H	(omitted) Fund		Accumulation Interest	$18,642	$18,642
21	W	(omitted) Super Fund		Accumulation Interest	$38,581	$38,581
SUMMARY
Description		Wife/de facto partner’s value	Husband/de facto partner’s value
22			Total Assets		$2,194,850
23			Total Liabilities		$542,481
24			Net Assets		$1,652,369
25			Superannuation		$57,223
26			Total Net Assets (including superannuation)		$1,709,592

Legal issues

There are a number of legal issues in this case that must be determined.
The first issue is whether, and if so in respect of what period, the parties were in a de facto relationship. Section 4AA deals with this:
Meaning of de facto relationship
(1) A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family (see subsection (6)); and
(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple
(2) Those circumstances may include any or all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
(3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4) A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
(5) For the purposes of this Act:
(a) a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
(b) a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
When 2 persons are related by family
(6) For the purposes of subsection (1), 2 persons are related by family if:
(a) one is the child (including an adopted child) of the other; or
(b) one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or
(c) they have a parent in common (who may be an adoptive parent of either or both of them).
For this purpose, disregard whether an adoption is declared void or has ceased to have effect.
In Taisha & Peng [2012] FamCA 385 (24 May 2012) Cronin J made a number of important observations about this section:
6. Because the Court can only exercise its powers to deal with the parties’ property if there existed a de facto relationship, the declaration of the existence of that de facto relationship is in the nature of a jurisdictional fact (see Jonah and White [2011] FamCA 221). The onus is on the applicant to establish that the Court has that jurisdiction.
7. The definition of a de facto relationship is set out in s 4AA(1) of the Act. It provides:
(1) A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family (see subsection (6)); and
(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
8. Section 4AA(2) provides certain circumstances that might give rise to a conclusion that people were having a relationship as a couple. No particular finding in relation to any of the defined circumstances is to be regarded as necessary (see s 4AA(3)).
9. Section 4AA(2) is prefaced by a heading which reads “Working out if persons have a relationship as a couple”. In my view, it is not necessary to look to s 4AA(2) unless there is some definitional uncertainty from a literal reading of s 4AA(1). The latter section has mandatory requirements but the wording of the former, indicates it is to be used as a guide for the purposes of s 4AA(1).
10. Albeit the requisite elements of s 4AA(1) must be proved, interestingly, s 4AA(4) provides:
(4) A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
11. Thus, while the onus is on the applicant to prove on the balance of probabilities that a de facto relationship existed, the Court may attach whatever weight it considers appropriate. The Evidence Act 1995 (Cth) applies (see s 4(1)) and s 140 requires the Court to apply the standard of proof which is described as the balance of probabilities although it would seem that the weighting and the balancing task is much less formal than in other civil proceedings. In my view, s 4AA(4) does not ameliorate the requirement for the applicant to prove her case on that transparent standard.
12. In Moby and Shulter [2010] FamCA 748 Mushin J looked at s 4AA(1) and said:
137. ...in Simonis v (omitted) Co. Limited (1987) DFC 95-052, Kearney J agreed with the approach of Powell J referred to in the previous paragraph and held (p 75,589):
I consider that the expression under consideration constitutes a single composite expression of a comprehensive notion or concept, and therefore has to be approached by considering the expression as a whole and not in several parts.
138. The approaches of both Powell J and Kearney J quoted above were adopted by the Court of Appeal of the Supreme Court of New South Wales in Light v Anderson (1992) DFC 95-120.
139. While I respectfully agree with the approach of their Honours, before the definition may be considered as constituting "a single composite expression of a comprehensive notion or concept", there are two specific elements of that definition which require individual consideration. The first of those is the concept of "a couple". For the purposes of the definition, "a couple" is constituted by two people, whether of the same or opposite sexes.
140. The second specific element is the concept of "living together".
13. It has also been said that it is the composite picture that must be looked at and any attempt to isolate individual factors and attribute to them relative degrees of ...importance involves a denial of common experience and will almost inevitably be productive of error (see Barry and Dalrymple [2010] FamCA 1271 referring to the Full Court of the Federal Court of Australia in Lynam v Director-General of Social Security (1983) 52 ALR 128). Whilst a composite picture is clearly the only way any case can be determined here, these are mandatory requirements because they go to jurisdiction. Without proving that the parties were a “couple”, there can be no de facto relationship just as conversely, if a couple of people live together but there is no domestic relationship, the section is not satisfied.
14. In Moby and Shulter (supra) Mushin J went on to examine s 4AA(2) as it applied to the parties in that case. With respect, in my view, that exercise is not necessary unless the jurisdictional fact cannot be established from a consideration of s 4AA(1) alone. That is supported by the explanatory memorandum to the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 where in respect of s 4AA(1) the memorandum referred to the requirements whilst s 4AA(2) was referred to as providing a list of circumstances for a court to consider.
15. Turning then to the two requirements. The applicant must establish that the parties were a couple and then establish that the couple lived together in a domestic relationship. The word “genuine” in my view, adds nothing to the definition.
16. The word “couple” is not defined.
17. The Australian Bureau of Statistics defines a “couple relationship” as:
being two people usually residing in the same household who share a social, economic and emotional bond usually associated with marriage and who consider their relationship to be a marriage or marriage-like union. This relationship is identified by the presence of a registered marriage or a de facto marriage. (See website DBS).
I note that that definition is used for census purposes.
18. The Shorter Oxford Dictionary defines “couple” as a union of two. (See 6th edit (2007)). The very word “couple” comes from the Latin which is a tie or a bond.
19. In Jonah and White (supra) Murphy J defined the relationship as being a de facto relationship when the parties had so merged their lives that they were for all practical purposes, living together as a couple which he thought was the “manifestation of coupledom”. His Honour said that it was the nature of the union that lay at the heart of the statutory considerations. I cannot add to what Murphy J said and I respectfully adopt his view.
20. But there must still be evidence of a domestic relationship. Mushin J in Moby and Shulter (supra) at para 167 said it was not a term of art but had to be given its ordinary meaning. I respectfully also adopt that because, having regard to s 4AA(4), the Court can take a wide discretionary view of the way in which the parties themselves conducted their relationship. Even having said that however, a domestic relationship must be one in which there are activities of running a household or shared households. That is, something must be seen to be related to domesticity which refers to home conditions and arrangements. For example, it could be indicated by people coming and going as if entitled to use and share the home’s facilities which is quite distinct from a boarding house or backpacking hostel where individuality reigns.
21. A couple therefore living in a domestic relationship is the opposite of a couple of individuals.

The second issue, albeit related to the first is whether, and if so when, the relationship ended, or in other words when the parties separated. In Aitken & Deakin [2010] FMCAfam 35 (21 January 2010) McGuire FM (as he then was) said about this:
9. Those authorities make it clear that there are three elements

of separation in a legal sense. They are:
a. The development of an intention to separate. That intention need not be mutual.
b. The communication of that intention to the other party. In my view such communication should be unambiguous and unconditional.
c. Some form of action upon the determination to separate.
10. I am of the view that the test of the element of “communication” is an objective one.
11. As Watson J stated in Todd and Todd (No. 2) at [75,079]:
·    Separation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act upon that intention, or alternatively act as if the marital relationship has been severed.
12. The communication of the intention is an absolute requirement. Whilst that communication can be spoken or unspoken, it should be unequivocal, unconditional and unambiguous.
13. Whilst there are guiding principles, it remains that each case must be determined upon its own facts. As the Full Court of the Family Court of Australia said in Pavey and Pavey at [75,214]:
·    ...it is not possible to apply some mathematical formula to these activities and determine whether a “separation” has occurred. Rather the evidence should examine and contrast the state of the marital relationship before and after the alleged separation.
14. There is also an issue of corroboration of fact of separation under the one roof. Some corroboration is usually required. In the case of Fenech and Fenech the parties lived in a strained relationship and there was no intimate relationship between them. However, her Honour Evatt CJ did not consider such evidence sufficient. Her Honour said at [75,133]:
·    I am satisfied that the breakdown has been continuing for at least a year, but that is not enough...
·    Marriage comes in many shapes and sizes and many families are living in a strained relationship like this. To the outside observer, matters go on much as usual, and only within the family itself —between the husband and wife — is there any acknowledgment of the breach. To comply with the Act there must be some overt separation, some evidence that there are two households, not one...
15. In summary, therefore, I must find that at the relevant time there has been a breakdown of the relationship as distinct from a “breaking down” of that relationship.
See also Clisbey & Vas [2011] FamCA 611 (8 August 2011) per Stevenson J.
The third issue arises if the court finds that there was a de facto relationship, and that is how to alter the parties’ interests in property. In this regard s.90SM(1)-(4) provides:
Alteration of property interests
(1) In property settlement proceedings after the breakdown of a de facto relationship, the court may make such order as it considers appropriate:
(a) in the case of proceedings with respect to the property of the parties to the de facto relationship or either of them--altering the interests of the parties to the de facto relationship in the property; or
(b) in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the de facto relationship--altering the interests of the bankruptcy trustee in the vested bankruptcy property;
including:
(c) an order for a settlement of property in substitution for any interest in the property; and
(d) an order requiring:
(i) either or both of the parties to the de facto relationship; or
(ii) the relevant bankruptcy trustee (if any);
to make, for the benefit of either or both of the parties to the de facto relationship or a child of the de facto relationship, such settlement or transfer of property as the court determines.
Note 1:       The geographical requirement in section 90SK must be satisfied.
Note 2:       The court must be satisfied of at least one of the matters in section 90SB.
Note 3:       For child of a de facto relationship, see section 90RB.
(2) If a party to the de facto relationship dies after the breakdown of the de facto relationship, an order made under subsection (1) in property settlement proceedings may be enforced on behalf of, or against, as the case may be, the estate of the deceased party.
(3) The court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court must take into account:
(a) the financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i) to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii) otherwise in relation to any of that last-mentioned property;
whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i) to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii) otherwise in relation to any of that last-mentioned property;
whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(c) the contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship and any children of the de facto relationship, including any contribution made in the capacity of homemaker or parent; and
(d) the effect of any proposed order upon the earning capacity of either party to the de facto relationship; and
(e) the matters referred to in subsection 90SF(3) so far as they are relevant; and
(f) any other order made under this Act affecting a party to the de facto relationship or a child of the de facto relationship; and
(g) any child support under the Child Support (Assessment) Act 1989 that a party to the de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the de facto relationship.
The fourth issue arises only if the court finds there was no de facto relationship for the purposes of the Act, and that is whether the court’s jurisdiction is nonetheless invoked because substantial contributions were made. In this regard s.90SB provides:
A court may make an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL, in relation to a de facto relationship only if the court is satisfied:
(a) that the period, or the total of the periods, of the de facto relationship is at least 2 years; or
(b) that there is a child of the de facto relationship; or
(c) that:
(i) the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); and
(ii) a failure to make the order or declaration would result in serious injustice to the applicant; or
(d) that the relationship is or was registered under a prescribed law of a State or Territory.
Note: For child of a de facto relationship, see section 90RB.
In this regard counsel referred the court to Webb & Douglas [2012] FMCAfam 1049 (9 October 2012) at paragraphs 16-23:
16. There is nothing in the drafting of s.90SM that suggests there is a hierarchy or priority of contributions. For example there is nothing to suggest that direct financial contributions are regarded as more important, or more weighty, than contributions to the welfare of the family. It is important to remember this when considering whether certain contributions are “substantial” in the slightly different s.90SK context. It would be quite wrong, for example, to say that a direct financial contribution is more likely to be “substantial” than a contribution to the welfare of the family. That might lead to a systematic diminution in the value of non-financial and indirect contributions such as homemaking and parenting in circumstances where there is no statutory warrant to do so. In each case when the court considers whether a contribution is “substantial” for s.90SK purposes, the court must come with a completely open mind about the diversity of contributions recognised in the Act, none of which are necessarily more important than the other. In other words the playing field for assessing substantial contributions must be an even one.
17. A concern that therefore arises from the cases cited by counsel for the respondent is that their context seems to be primarily contribution to the welfare of the family as homemaker and parent. In the present case the contributions alleged are much more diverse, and certainly include direct and indirect financial contributions, including to the conservation and improvement of property. The contributions alleged by the applicant also are of a non-financial character, including to conservation and improvement of property. Homemaker contribution is only a small part of the applicant’s claim.
18. This court is concerned about the appropriateness of applying a standard of “substantial” contributions that was developed in the narrow context of homemaker and parent contributions to the much broader context of the diverse contributions in this case. Moreover this court is concerned about the appropriateness generally of applying the standard developed in the case law to homemaker and parent contributions because of the risk that it devalues the same. One can imagine relationships of short duration where one partner’s contribution is overwhelmingly financial, and the other’s overwhelmingly non-financial and indeed principally homemaking, where the latter may still be characterised as substantial. There are no hard and fast rules. Every case must be determined on its merits.
19. In Miller & Trent [2011] FMCAfam 324 Federal Magistrate Coates examined the meaning of substantial contributions in the context of s.90SK. His Honour referred to, and accepted, the decision of Holden CJ in the Family Court of Western Australia, V & K [2005] FCWA80 where, at para.21, he said:
· Notwithstanding I am of the view that contribution to domestic duties in circumstances such as exist in this case where there were no dependant children and over a short period of time ought not be seen to be substantial. In my view, substantial means something more than usual or ordinary. In my view, s.205XB(ii) is aimed at more exceptional circumstances where serious injustice may be cause by the application of ss (i).
FM Coates found that the wording of s.205XB was similar to that in ss.90SB and 90SM of the Act, and satisfied himself that Chief Justice Holden’s test was appropriate in the context of s.90SK.
20. Miller & Trent and V & K were both accepted and adopted by Johnston J in the Family Court of Australia in Wall & Mitchell [2012] FamCA 114 and by Black J in the New South Wales Supreme Court in Aslan & Al Nayad. [2012] NSWSC 57.
21. The cases therefore seem to suggest that before a contribution can be substantial, it must be more than usual or ordinary. This is a vague and subjective standard. In the diversity of relationships that present before courts exercising jurisdiction under the Family Law Act how is “usual” or “ordinary” to be determined other than by reference to the facts of the case before the court at the time? How could a judicial officer make the comparisons that need to be made by using this standard without referring to extrinsic evidence ie. the judicial officer’s own perception of contribution in other cases?
22. By contrast it is interesting to note that FM Coates in Miller & Trent referred to dictionary definitions of “substantial” at paragraph 59 of his judgment. He noted, for example, that the Macquarie Encyclopaedic Dictionary defined substantial as “an ample or considerable amount as well as something having real worth or value”. His Honour also referred to the Concise Oxford Dictionary meaning of “having real importance or value and to a considerable amount”. Federal Magistrate Coates also referred to a Family Provision Act (1982) (NSW) decision in Wentworth & Wentworth (1995) 37 NSWLR 703 where the court held that substantial “means not illusory, something considerable or large”.
Whereas the V & K and Miller & Trent definition of substantial invite comparison to other cases, the dictionary definitions invite a more contextual analysis. In other words the question is whether the contribution is substantial in the context of the case being determined, and not by reference to other cases.
In terms of the approach to a case under s.90SM and 90SF, the preferred approach to the determination of an application under s.79 of the Family Law Act 1975 continues to apply and is set out in a passage found in the Full Court’s decision in Hickey & Hickey & Attorney-General of the Commonwealth of Australia (Intervener) (2003) FLC 93-143 at 39.
The Full Court states that there are four inter-related steps:
a)Identify and value the property, liabilities and financial resources of the parties; and
b)Identify and assess the contributions of the parties and express them as a percentage of the net value of the property; and
c)Identify and assess the other facts relevant under s.79(4)(d)-(g) including s.75(2) and determine the adjustment (if any) to be made to the contribution entitlements at step two; and
d)Consider the effect of the above and resolve what order is just and equitable in all the circumstances.
One of the legal issues that arises is whether I should adopt a global or asset-by-asset approach to contribution. The authority in this regard is, the High Court’s decision in Norbis v Norbis (1986) 161 CLR 513 per Wilson and Dawson JJ at 534-5. It is clear from this statement of the law that either approach is available to me, in part or in whole. My discretion in this regard should be exercised having regard to the facts of this case.

Findings as to credit

Where the evidence of the applicant and the respondent diverges, and unless the evidence is otherwise clearly corroborated by documents, the court prefers the evidence of the applicant over that of the respondent. As indicated above, however, that is not to say that the court finds the respondent to have been dishonest. By no means. She genuinely believed the evidence that she gave. The difficulty for the respondent is that her subjective perception on events is so clearly inconsistent with objective facts, several examples of which will be given in these reasons. In short, what she did in this relationship is so plainly inconsistent with what she now says about the relationship, with the benefit of hindsight, that it is plainly unacceptable and untenable. Moreover, the respondent did herself no service by being so frequently unresponsive in cross-examination, seemingly desiring to answer the question she wished had been asked, as opposed to the question that was asked. She should have made concession about what was put to her, and about the contribution made by the applicant, far more readily and more frequently than she did. Her intransigence detracted from her credibility. Whereas the applicant gave evidence in a straightforward, simple and honest way, even when being cross-examined by his former partner, by contrast the respondent was unresponsive, verging on uncooperative at times and frequently indulged in ex-post facto rationalisations, clearly driven by emotion rather than by objectivity. The respondent would have done well to have been legally represented, and appears to have had the resources available to her to have done so. That measure of objectivity that is generally brought about by good legal representation probably would have made a significant difference in this case.

The period of the relationship

The applicant contends that the relationship began in May 2007, whereas the respondent contends (eg in her summary of argument document) that they drifted into a de facto situation in September 2007. I prefer the applicant’s evidence over that of the respondent in this regard. This finding is strengthened by exhibit A2, being a letter dated 13 November 2008 from DH Dwyer Forbes and Yeo Solicitors. This is a letter to the respondent in which her solicitor confirms a conference held with her on 30 October 2008. The solicitor says that he understood her instructions to be that “May–June 2007 – at some point you did establish a domestic relationship.” Any privilege attaching to this communication was waived by the respondent annexing the same to her affidavit. The inference to be drawn is that she told her solicitor that the relationship with the applicant commenced as early as May, which is consistent with the applicant’s contention. I therefore find that the parties commenced their relationship in May 2007.
The applicant contends that the relationship ended in August 2010. The respondent contends that the relationship ended in October 2008, but that the respondent refused to leave the home. The respondent’s contention seems to be primarily based on a letter which she caused her solicitor, Mr David Geddes, to write to the applicant dated 16 December 2008. The letter, which deals with a property settlement proposal, and which is exhibit R3 (tendered by the respondent, thus waiving any privilege that might have attached) is, if viewed in isolation, clearly consistent with the respondent having formed the intention to end the relationship, and communicating this factor to the applicant. There is further evidence for the respondent’s contention in exhibit R2, which is a copy of a birthday card that the respondent sent to the applicant on or about 13 November 2008. Again, if this evidence is viewed either in isolation, or with exhibit R3, it is consistent with the respondent having formed an intention to end the relationship, and communicating the same to the applicant.
The above evidence cannot be viewed in isolation, however. For example, exhibit A3 is an email exchange between the applicant and the respondent on 28 January 2009. In this email exchange they express their love for one another and their hope for a “happier, healthier relationship.” He says to her: “I hope we can grow either with assistance or on our own initiative.” She replies: “I also very much want to believe that we can move forward and build a more supportive and nurturing relationship and I think, as we discussed this morning, that it would be an excellent idea for us to get some counselling.” This email exchange is entirely consistent with a couple in a relationship, experiencing some difficulties, and hoping to work through them. There is a sense of shared commitment to the relationship.
Even before looking to later events, the emails of 28 January 2009 largely negate whatever intention the respondent may have had in late-2008. To the extent that she may have communicated her intention to end the relationship with the applicant in late 2008, her email to him of 28 January 2009 signals a change of heart for her.
The manner in which they lived their lives is overwhelmingly consistent with the continuation of their relationship into 2010. They continued to occupy the same home together. They slept in the same bed together. There was a financial arrangement between them pertaining to the Property H property, the details of which will be discussed below. They travelled and went on holidays together. They engaged in social activities together, including friends and family. The attended gallery openings together. They purchased a pet cat together. In November 2009 they attend a friend’s wedding together. In December 2009 they hosted a Christmas party together. In June 2010 they travelled to (omitted) together. On the weekend of 24 and 25 June 2010 there appears to have been a particularly major argument. On the next day the applicant returned to Sydney on his own, but there is no doubt that on the preceding evening they had slept in the same bed. In cross-examination the respondent accepted that arguments between them were a frequent event, but she would not agree to the characterisation of the relationship as a tumultuous one. The evidence suggests the couple resumed cohabitation even after the incident on that weekend in June.

The only unequivocal act of separation, marking the end of this relationship, was when the applicant left the Property H property. It is interesting to observe how the respondent reframes this event. For example, in her case outline she describes what occurs on 17 August 2010 as “the applicant is evicted.”, thus characterising their relationship as landlord and tenant. This is plainly inconsistent with the way in which they lived their lives up until then.
A number of other documents provide an insight into the nature of the relationship in 2009. Exhibit A5 is an email dated 1 April 2009 between the respondent and a friend of hers, Ms Z. At one point in that email:
“Mr McGee? As it turns out, that’s not all settled. He’s down in Adelaide for most of the time March to June which is a pleasure. In small doses, and when he’s being decent, he’s fantastic company but when he’s nasty, he’s a real jerk. It seemed like the termination was sorted by the end of last year but then it wasn’t etcetera. It’s all a bit of a mess really. I’d be better off without him but he’s very resistant to moving on so it ends up being easier to put up with things. I can’t help but feel rather embarrassed about being such a schmuck.”
Another example is exhibit A6, an email dated 22 March 2010 from the respondent, again to Ms Z. In this email she says “Mr McGee continues to live here, telling me that he’s moving out soon but giving me no further details. I think he keeps changing his mind etcetera, etcetera. When he’s nice, he’s good company and when he’s being moody and temperamental, he’s rather exhausting. In spite of the sadness and uncertainty of being alone as an older person, it will probably be easier than the McGee rollercoaster! (Except, I really miss his sense of humour – he can be very, very witty.)”. In cross-examination the respondent stated that she was, in effect, deceptive at certain times with the applicant, in terms of her relationship with him. Exhibits A5 and A6 are examples of this. She was representing to her friend Ms Z her ambivalence about the relationship with the applicant. She appears clearly uncomfortable with aspects of the relationship but unwilling to put the relationship to an end. Certainly in April 2009 it was easier for her “to put up with things”. But by March 2010 their living arrangements were unchanged.
Another interesting document is exhibit A4, an email from the respondent to her solicitor, Mr Geddes. The ambivalence in her relationship is again communicated: “He (unsurprisingly) wants the relationship to continue. Logically, you’d think it wouldn’t be so difficult for the other person (me) to say, “No, I want this to end”, however it isn’t that easy.” She goes on to say, “I want to tell him that I want him to move out” but then goes on to say: “I’m hoping that I can keep things “on an even keel” till the end of February, even though this would be intrinsically deceptive as I would be suggesting that I have confidence in the ongoing relationship when I know that I want it to come to an end as soon as possible.”
What is striking about all of these communications between the respondent and third party is the contrast between how she continued to live her life with the applicant as a couple, and, on the evidence, never communicating to him her ambivalence about the relationship.
A final significant document is exhibit A7, a statutory declaration declared at (omitted) on 22 April 2010, and made by both the applicant and respondent together. There is a statement in the statutory declaration “Ms Kerr, my partner, was with me.” Both the applicant and the respondent solemnly declare in accordance with the Oaths Act that that statement was true.
In all likelihood the relationship between the applicant and the respondent ended in August 2010 when he left the home at Property H. The court does not accept the respondent’s evidence that the relationship ended at an earlier point in time. If she had formed that intention, she either communicated it but then acted inconsistently with it, or alternatively failed to communicate it at all. All of the evidence presents a rather sad picture of a relationship in which the parties frequently argued but nonetheless remained a couple who lived in the same residence, shared the same bed, shared and mixed their finances, discussed (as will be seen below) joint ownership of property, had a degree of mutual commitment to a shared life and frequently presented themselves in public as being a couple. Having regard to all the evidence, the applicant and the respondent were in a de facto relationship and were a couple living together on a genuine domestic basis from May 2007 to August 2010, a period of three years and three months.

Contributions during the relationship

Having regard to the court’s findings about the existence of a de facto relationship, it is unnecessary to make a specific finding about substantial contribution for the purposes of section 90SK(1). The applicant’s case about contribution focuses primarily on the Property H property, but also purportedly extends to the respondent’s separate property at Property M. To the extent that the applicant contended that he made a contribution, directly or indirectly, to the respondent’s property at Property M, the evidence simply does not justify any such conclusion. Even if it could be said that the evidence does raise such an argument, the contribution would be so small as to be insignificant. The real focus of this case is on the Property H property. He contends that he made a direct financial contribution towards what the parties described as the “mortgage” on the Property H property, the outgoings on the said property and the extensive renovations and improvements effected to that property. He made a non-financial contribution, he contends, based on a large amount of physical labour. He also contends for a contribution as a homemaker through cooking, cleaning, shopping and gardening.
The respondent disputes the applicant’s contentions. Her contention is, for the most part, about the nature and extent of the contribution, rather than whether it happened or not. There are some differences about whether the applicant did things as he asserted but these are in relation to relatively minor and insignificant things.
There are some significant alleged contributions of the applicant that the respondent does not dispute. Thus, for all practical purposes, she concedes that from September 2008 to February 2010 he paid her $300 per week towards the “mortgage as we had agreed” and also contributed $120 per week towards the utilities, groceries and other household expenses. He says that the total payments to her in the period September 2008 to February 2010 amounted to $21,600, “not including my contribution to the living expenses.” He further contends that between February 2010 and August 2010 he continued to contribute $120 per week towards the utilities, groceries and other household expenses, and occasionally paid for the respondent’s fuel.
It is important to set out the evidence about what the parties agreed was their “mortgage”. There is no doubt that the respondent provided 100 per cent of the total purchase price of the Property H property. It was purchased in December 2007 as a mortgagee sale for $535,000, and settled at the end of January 2008.
In an email dated 29 September 2008 from the respondent to the applicant (exhibit A1) she says:
“The mortgage”
As discussed, you already own 2 per cent of Property H however we agree that it would be good for you to increase this. We’ve calculated a final purchase price for us to get into Property H, which includes the original purchase price, conveyancing and stamp duty, general certification costs which include various inspections, necessary works etcetera, plus key furnishings like the sofa, chairs, fridge and washing machine, and this final price is $647,900.
20 per cent of this is $129,520.
You have offered – and I have accepted – that you will make fortnightly payments to me (these can be varied to monthly if preferred) as if I am the mortgagee (rather than a conventional bank) and in exchange, you will be purchasing this further equity in Property H. The expectation is that this will function just like a normal mortgage, although without the usual nasties of establishment fees, exit fees, cherry on the cake fees. The interest rate will be in line with the standard variable rate of the (bank omitted), as this is pretty standard and it’s where I currently have my mortgage. Currently, the (bank omitted) interest rate is 8.75 per cent.
You are proposing to make payments of $300 per week to pay out this amount and that these payments would commence at the beginning of November. Using the (bank omitted) online calculator ..... This means that the “loan” would be paid in full in just under 15 years, based on the current interest rate.
Some earlier emails provide an insight about aspects of the agreement between the parties. For example, in an email 11 December 2007 from the respondent to her conveyancing solicitor (exhibit A8) the respondent makes the following statement:
“Mr McGee would love to be a financial partner however his circumstances prevent this at present. Nevertheless, he is making a valuable contribution with effort, technical research, emotional support etcetera. Is it fearsomely difficult to change my “sole purchase” at this point? I’m musing upon the idea of establishing it as tenants in common, with me gifting 1 or 2 per cent to him.”
The email goes on to describe some of the elements of what turn out to be the mortgage agreement between the parties, as described above.
There is the further email dated 17 March 2008 between the respondent and her conveyancing solicitor (exhibit A9). In effect, her solicitor’s advice is that a tenancy in common may not be in the respondent’s best interests because it would act as a restriction on her future dealings. The conveyancing solicitor suggests a binding financial agreement. One can only wonder how different this case might have been, if the parties had indeed entered into a binding financial agreement. In any event, responding to the advice the respondent says:
“It is an interesting perspective but it certainly raises problems for me. Primarily, these are moral. I truly don’t feel that, close on three months down the track, I can reneg on the previous agreement.
The understanding was that I would give him 2 per cent of the total value. This is in thanks for his input in a variety of non-financial ways. It is a way of recognising that it is a shared endeavour. I also expect that, in time, the growing pains of the property will evolve into a good profit and it is only fair, in my eyes, that he has the opportunity to share in its capital growth.
I certainly recognise that in a sense I’m exposing myself to the potential future risk as, at present, the property is solely in my name and I have paid for it in full. However, I agreed some time back that we would share the title and the complications of home ownership ...
With regard to the mortgage arrangement, I would be the mortgagee (lender). The mortgage amount is for a further 18 per cent of the cost of the property. This percentage may be varied when the final costs are calculated, as we’re still clarifying the inclusions and the total cost, for example stamp duty, plumbing and other property rectification expenses. There are also chattels. The approximate borrowing would be $130,000 ...
The original intention was that Mr McGee would start making a financial contribution from the date of settlement. Neither of us are keen on paying rent so that is why, ideally, that payment would go towards a further portion of ownership. As the circumstances haven’t been ideal and given that there was a great deal of supervised work required and my own schedule made that difficult, I suggested that we temporarily swap “his financial contribution to supervisory (and physical) input” and Mr McGee agreed to this. Admittedly, this is a “loose arrangement” – of little appeal to the legal mind! – as it does not quantify in dollar terms the value of this input and compare it with the dollars otherwise payable. I think however that it has the advantages of fairness and also simplicity.”
The present proceedings are not, of course, about enforcing any agreement that the parties might have entered into. Nonetheless, the contributions made by both of them can be seen in the context of what they themselves contemplated. Even the respondent clearly contemplated that the applicant would make a financial, and non-financial contribution. She considered that the Property H property a “shared endeavour” and that he, the applicant, would have “the opportunity to share in its capital growth.” The end of their relationship frustrated the performance of the agreement as they may have contemplated it. Nonetheless he asserts and she concedes that he paid $21,600 towards “the mortgage”. That this was a capital contribution, as opposed to an occupation fee or rental, is beyond doubt. Her communications expressly contemplate that his payments would gain him equity in the property and would not be characterised as rental –“neither of us are keen on paying rent so that is why, ideally, that payment would go towards a further portion of ownership.”
In view of all of this evidence it is truly difficult to understand how the respondent’s contention at the final hearing should be that the respondent get nothing.
There is a dispute about non-financial contributions. She concedes most of what he asserts, except as to quality and degree. There are a few relatively minor matters in respect of which she makes no concession. The court finds that the applicant made the non-financial contributions as he asserts in his evidence. The court prefers his evidence, over hers, for reasons previously articulated about credit. She now seeks to diminish the value of the work he performed. Curiously, exhibit R1, the respondent’s own tender, is an email from the conveyancer to herself dated 13 March 2008 in which says:
“From what you said earlier, Mr McGee is putting a lot of his time with regard to the completion of the house and as he works within the professional I am sure his time is of value to you and it may be a simpler process for his time to be compensated by you in the event you sell the property at a later stage.”
Even before completion of the purchase she described his contribution as “a valuable contribution, with effort, technical research, emotional support etcetera” (exhibit A8).
None of this is to diminish, or devalue, the contribution that the respondent herself made. It was clearly significant. Her financial contribution vastly exceeded that of the applicant’s. She also contributed in a non-financial way and as homemaker. Regrettably, whereas the applicant does not seek to diminish her contribution, she certainly seeks to diminish his.
The significance of the work performed by way of renovations to the Property H property becomes apparent from considering the evidence of Mr P, a certified practising valuer, and the single joint expert in this case. Apart from establishing the current market value of the Property H property at $1 million, he was asked to undertake two additional assessments. He was firstly asked to assess the current fair market value assuming that certain works, repairs and improvements that were undertaken to the property between the date of purchase in January 2008, and August 2010, had not been undertaken. The works to the property that he was asked to consider were agreed works. In his assessment Mr P refers to all of the problems in the property which resulted in it not having the benefit of an occupation certificate when purchased. He concluded that “the low sale price that was achieved when the subject property was put to auction in December 2007 can be attributed to these faults in the building ... In other words, if the subject property did not have noted faults, and it had the benefit of an occupation certificate when purchased, then it would have sold for a much higher price than the respondent paid for it.”. Mr P ultimately concluded that:
I am of the opinion that the subject property, if the referred to works had not been undertaken and the subject property did not have the benefit of an occupation certificate, it would have a current fair market value of $670,000.
The second additional assessment he was asked to undertake was to assess the value of the property as at August 2010, by which time the works referred to above had been undertaken but there remained a number of additional matters requiring attention which were undertaken after that date. Thus the focus of this second assessment was on the work undertaken by the respondent in the post-separation period, and the extent to which that this may have contributed to the current market value. Mr P ultimately concluded that “it is my opinion, based on the information provided, that the fair market value of the subject property as at August 17, 2010 would have been $900,000”.
The evidence of the single joint expert demonstrates that, more likely than not, as a result of the works undertaken by the applicant and respondent the value of the property increased considerably by the date of separation. Indeed, the value appears to have increased from the purchase $585,000 in January 2008 to $900,000 in August 2010, an increase of over $300,000. The applicant contends that his contribution needs to be recognised by way of an order altering the property interests in the Property H property. The respondent contends there should be no such alteration of property interests. It is hard to understand the respondent’s case on the evidence before the court. Her summary of argument document provides some insight into the respondent’s thinking. Thus, for example, she contends that the applicant made no direct financial contribution to the Property H property at all. In order to achieve this, of course, the respondent has to deal with the acknowledged fact that he paid her $21,600 pursuant to what the evidence clearly demonstrates they both regarded as “the mortgage” or his contribution of a capital nature towards the Property H property. The respondent avoids this inconvenient fact by reclassifying the $21,600 as a contribution towards “Property H accommodation”. The court does not accept this. The respondent’s own evidence demonstrates that their relationship was not one of landlord and tenant, that she rejected the idea of rental, and the findings otherwise overwhelmingly demonstrate that they were a couple. However, she seems to concede that he made a financial contribution towards the “Property H remediations” as well as to outgoings. To offset these contributions, however, the respondent contends that she make a direct financial contribution to his welfare and upkeep, including a loan of $10,086, which is still outstanding, the provision of free board, thus allowing him to retain the rental income from his Property O property, the consequent capital gain on the Property O during the period of their relationship, as well as the benefits to him of her supporting his tertiary studies. She asserts, for example, that the Property O property increased in value by $140,000, whilst not purporting to claim on the same. This is plainly confused thinking about the nature and extent of the financial contributions they both made. Why, for example, should any increase in value in the applicant’s Property O property (in respect of which there was no evidence) be taken into account, but not the increase in value of any assets of hers such as Property M and Property T?
The respondent appears to concede that the non-financial contributions to the remediation of the Property H property was about equal, but asserts that her contribution as homemaker was greater than his.

With great respect to the respondent, who is clearly an intelligent and articulate woman and who, at times, clearly had access to good legal advice, her submissions seek to rewrite the history of the relationship and plainly diminish the contributions that the applicant made. To award the respondent nothing under section 90SM is plainly inequitable and unjust. The real challenge is in assessing this contribution.
The court has some difficulty understanding the manner in which the applicant’s case for contribution was quantified. In the applicant’s minute of order attached to the summary of argument document dated 14 December 2012 the applicant sought an order that the respondent pay to him $186,612.50. Strangely, there is a separate document containing another minute of order, perhaps submitted for the purposes of the adjourned hearing in April in which the applicant seeks an order that the respondent pay $150,000. In closing submissions counsel for the applicant contended that the court should adopt a global approach to assessing contribution, thus taking into account all of the assets of the parties. That is not an appropriate approach on the facts of this case. It was a short relationship. Both parties brought assets into the relationship. There was no plausible evidence to suggest that, apart from the Property H property, they made a contribution to each other’s assets. The focus must remain on assessing the applicant’s contribution to the Property H property, undistracted by issues relating to the other assets and resources each party had available to them. The latter may well be relevant under section 90SF.
The court accepts that the applicant’s financial and non-financial contribution was significant in the context of a short relationship where considerable effort on the part of both parties have resulted in the Property H property appreciating in value considerably. In all the circumstances of this case the court is satisfied that an adjustment in the applicant’s favour of 15 per cent of the current value of the Property H property is a just and equitable recognition of the contribution he has made. Conversely, the 85 per cent interest that the respondent has also recognises the overwhelming financial contribution she made, as well as the non-financial contribution she made.

Section 90SF considerations

The applicant contended that there should be a 5 per cent adjustment in his favour, but the court finds no basis for so doing. The assets that both the applicant and respondent will have, subject to the adjustment proposed by these orders, mean that neither will be in need for the purposes of section 90SF(3) and thus those matters are not relevant for the purposes of section 90SM(4)(e).
In the respondent’s summary of argument document she appears to be contending that if there is a section 90SF adjustment, it should be in her favour, primarily because of the support she gave to him whilst he was completing his tertiary studies. The court does not accept this. Neither party has demonstrated any need greater than the other and accordingly no adjustment is called for.

Just and equitable

It would be plainly unjust and inequitable not to make an order altering the property interest of the respondent in the Property H property. The court is satisfied that she will be able to fund a payment of $150,000 using cash, as well as the substantial equity available to her in the Property H property. Her financial statement sworn 11 December 2012 suggests that there is a capacity to service a small loan. The court is satisfied the orders proposed are just and equitable.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date: 4 June 2013

[2013] FCCA 402

4 June 2013

Key Legal Topics

Areas of Law

Family Law

Property Law

Legal Concepts

Remedies

Costs

Injunction

Jurisdiction

Procedural Fairness