MILLER and GEORGE

[2011] FCWAM 33

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT : FAMILY COURT ACT 1997

LOCATION : PERTH

CITATION : MILLER and GEORGE [2011] FCWAM 33

CORAM : DUNCANSON M

HEARD : 29 MARCH 2011

DELIVERED : 10 MAY 2011

FILE NO/S : PTW 4185 of 2008

BETWEEN : MILLER Applicant

AND GEORGE

Respondent

Catchwords:

Property settlement - de facto relationship - contributions - Section 205ZD(3) factors

Legislation:

Family Court Act 1997 (WA) s 205ZD Family Court Act 1997 (WA) s 205ZG

Category: Not Reportable

Representation:

Counsel:

Applicant : Mr S Jones
Respondent : Ms T Farmer

Solicitors:

Applicant : White Berman
Respondent : Slater & Gordon

Case(s) referred to in judgment(s):

Nil

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES, PLACES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1[Jane Miller] and [Pamela George] were in a defacto relationship for about nine years. They are unable to agree as to the financial consequences arising from that relationship.

ORDERS SOUGHT

2The orders sought by Jane are contained within the Papers for the Judge received on 24 March 2011. They are as follows:

“1. That in full satisfaction of either party’s claims against the other for property division or alteration of property interests pursuant to Part VIII of the Family Law Act 1975 (as amended):

(a) the respondent to pay the applicant within 30 days of the date of orders of this Honourable Court for property division the sum of $225,000 or such other sum as the Court shall deem appropriate so as to effect a division of the parties’ assets and superannuation interests in the proportions of 65% to the respondent and 35% to the applicant.

(b) contemporaneously with the payment by the respondent to the applicant referred to in paragraph 1(a) hereof the applicant shall cause Caveat xxxxxxx registered against the Title to the property situated at [Property 1] to be withdrawn by the presentation at settlement of a Withdrawal of Caveat in a registered form, and thereafter the respondent shall remain the sole and legal beneficial owner thereof to the exclusion of the applicant you shall have no further rights, entitlements or interest therein save and in accordance with the terms of these orders, and the respondent shall thereafter meet all expenses, services expenses, maintenances costs and other costs or outgoings or arrears thereof with respect to Property 1 to the completed exoneration of the applicant you shall have no liability with respect thereto and the respondent does hereby indemnify the applicant against all losses, expenses, claims or demands made against her as a result of the refusal, failure or neglect of the respondent to so pay.

2.In default of the respondent paying to applicant the said sum referred to paragraph 1(a) hereof the respondent shall pay interest to the applicant upon such unpaid sum due to the applicant and such interest shall be at a rate as shall apply to the Family Court Rules from time to time payable by the respondent to the applicant as and from the date upon which payment is due and payable by the respondent to the applicant pursuant to these orders until such time as payment has been made in full.

3.In default of the respondent paying to the applicant the said sum referred to in paragraph 1.1 hereof within the time stipulated therein and in the event that the said default shall continue for a further period of fourteen (14) days Property 1 shall then be forthwith placed on the public market for sale with such Real Estate Agent and upon such terms and conditions as shall be agreed between the parties and in the absence of agreement as shall be determined by this Honourable Court and the proceeds of sale shall be applied as follows:

(a) firstly in payment of the said Real Estate Agent’s commission and expenses as shall be agreed between the parties and the said Real Estate Agent;

(b) secondly, in payment of conveyancing expenses, adjustments of rates and taxes, disbursements in relation thereto and payment of outstanding rates, taxes, mortgages, discharge of mortgage fees, bank fees, water rates, land tax (if any) and other expenses relating to Property 1; and

(c) thirdly, the balance then remaining shall be divided in the following proportions between the respondent and the applicant, that is to say:

(i) as to the Trust Account for and on behalf of the applicant the sum of $225,000 (or such other sum as this Honourable Court shall determine as provided for in paragraph 1(a) hereof); and

(ii) as to the respondent the balance then remaining.

4.Thereafter the respondent do retain all items of real and personal property then in her possession free of any further claim from the applicant including:

(a) any motor vehicle presently in the respondent’s possession:

(b) all personal property, furniture and personal effects presently in the respondent’s possession:

(c) all bank account proceeds, insurance policies and other investments then in the respondent’s possession;

(d) all employment benefits or entitlements which have presently which have presently accrued to the respondent’s benefit or which may hereafter accrue to the respondent’s benefit;

(e) all superannuation entitlements to which the respondent is presently entitled or to which she may hereafter become entitled.

5.Thereafter the applicant do retain all items of real and personal property then in her possession to the exclusion of the respondent who shall have no further claim in relation thereto including:

(a) the payment referred to in paragraph 1(a) hereof; (b) any motor vehicle in her possession:

(c) all personal effects, furniture and personal property then in the possession of the applicant;

(d) all bank account proceeds, insurance policies and other investments then in the applicant’s possession;

(e) all employment benefits or entitlements which have presently accrued to the applicant’s benefit or which may hereafter accrue to the applicant’s benefit;

(f) all superannuation entitlements to which the applicant is presently entitled or to which she may hereafter become entitled.

6.That each of them the respondent and the applicant shall do all such things and sign all such documents as may be necessary or desirable to give good valid and binding effect to the terms of the within orders.

7.That hereafter the respondent shall meet payment of all of his personal debts and liabilities incurred in his own name to the complete exoneration of the applicant who shall have no liability with respect thereto and the respondent does hereby indemnify the applicant against all claims, expenses, losses or demands incurred by her as a result of the respondent’s refusal, failure or neglect to so pay.

8.That hereafter the applicant shall meet payment of all of her personal debts and liabilities incurred in her own name to the complete exoneration of the respondent who shall have no liability with respect thereto and the applicant does hereby indemnify the

respondent against all claims, expenses, losses or demands incurred by him as a result of the applicant’s refusal, failure or neglect to so pay.

9.That subject to the provisions of these orders each party does release the other from any liability for any claim that either one may have against the other in respect to any property either now or hereafter owned by either of them.

10.That hereafter each party shall discharge without calling upon the other to contribute thereto any debts contracted for or by them.

11.Each of them the respondent and the applicant is restrained and an injunction is hereby granted restraining them and each of them from pledging the credit of the other.

12.That each of them the respondent and the applicant shall do all such things and sign all such documents as may be necessary or desirable to give good valid and binding effect to the terms of the within orders within seven (7) days after the same shall have been tendered to him or her by or on behalf of the other party for that purpose then and in such case a Registrar or Deputy Registrar upon proof by affidavit of such refusal or neglect or that the whereabouts of one of the parties is unknown to the other is hereby appointed to execute and if in his or her opinion it shall be necessary so to do to settle the same and to do all other acts and things and to execute such other documents as shall be necessary to give full force and effect thereto and shall execute and do the same accordingly.

13.That the Respondent do pay the Applicant’s costs of and incidental to the within action”.

3During the course of submissions Counsel for Jane indicated that although she sought 35% of the assets and superannuation interests, what in fact Jane sought was a cash payment of $225,000 and to retain the various items in her possession.

4 The order sought by Pamela is contained in the Papers for the Judge received on

25 March 2011 and is as follows:

“The Application be dismissed”.

5In opening submissions Pamela’s Counsel submitted Jane was entitled to a 10% division in her favour, taking into account sums already received and items in her possession.

BRIEF BACKGROUND

6 Jane is aged 43 years. She is a [kitchen hand]. Pamela is aged 55 years and is a

[senior teacher].

7 The parties commenced a relationship in about May 1997. On 11 June 1997

Jane’s daughter [Grace] was born. Grace’s father is [Mr B]. The parties began living together, Jane says in July 1997 although Pamela says it was August or September that year.

8They separated for a few months in 2002 but otherwise remained living together until about 22 October 2006 when they finally separated.

9 From about April 2007 to November 2010 Jane was in a relationship with

[Jennifer Page]. Jane now lives in another state with Grace.

THE LAW

10 I am required to follow a four step process in dealing with an application for property settlement pursuant to the Family Court Act 1997(WA) (“the Act”). These are:

•to make findings as to the identity and value of the assets and liabilities of the parties;

• to identify and assess the contributions made by the parties to the assets;

• to identify and assess a range of factors set out in sub s 205ZG(4)(d) to (g) of the

Act; and

• to consider whether the order proposed is just and equitable.

RELEVANT HISTORY

11 Pamela bought Property 1 in March 1992 for a price of $87,000 with a mortgage from a bank of $81,000. At the time the parties commenced their relationship Jane was expecting Grace. Pamela was a teacher at a High School. Jane and Grace then moved into Pamela’s home. Jane cared for Grace full time and received a parent pension and child support. The parties kept their finances separate. Jane paid rent to Pamela.

12 In 1998 Pamela purchased a caravan at a cost of $11,750. Pamela refinanced her mortgage to raise most of the purchase price.

13 In 1999 the parties intimate relationship ceased.

14 In 2000 a granny flat was constructed at the rear of Property 1 at a cost of about

$20,000. Pamela increased her mortgage to $115,000 to fund the construction.

15 In each of the years from 1997 to 2000 the parties went on an overseas holiday.

16 In early 2001 Pamela accepted a six month contract in [Country Town 1]. That contract was subsequently extended by a further six months. In about June 2001 Jane moved to Country Town 1 with Grace. Property 1 was leased out.

17 In about December 2001 the parties returned to Perth.

18 In 2001 Pamela purchased [Property 2] for about $48,500 with an investment loan of $52,000. That property was subsequently sold in mid 2002 for $62,000. There was no net profit after paying the loan, expenses of sale and capital gains tax.

19 In 2002 Pamela began a six month contract at [Country Town 2]. In March

2002 Jane and Grace joined her there but left the following month and returned to

Perth. The parties’ relationship ended at that time.

20 Pamela took stress leave and around May 2002 she also returned to Perth. She returned to work at a High School commencing in Term 3. The parties reconciled in about September 2002 and Jane moved back into Property 1.

21 In late 2002 the parties had a holiday overseas.

22 In about September 2002 Jane began full time work at retail store. Pamela took long service leave and looked after Grace. In 2003 she resumed work at a Perth high school.

23 Also in 2003 the parties went on holiday overseas. That year, Pamela gave Jane her motor vehicle.

24 In January 2004 the parties moved to [Country Town 3] to enable Pamela to take up a position at Country Town 3 high school. Grace attended school there. Jane worked on a casual basis for the school.

25 In 2004 Jane and Pamela went overseas again.

26 In January 2005 the parties moved to [Country Town 4] where Pamela commenced employment at the high school.

27 In 2005 Pamela sold the caravan for $15,000 and purchased another caravan for

$2,200. It was sold later that year for $2,800. Jane undertook some part time work at the school. Also that year Jane sold the [motor vehicle] and bought another one. Pamela bought a [vehicle] and took out a personal loan. The parties agreed to share the loan repayments.

28 The parties moved to [Country Town 5] in December 2005.

29 In January 2006 Pamela commenced employment at the local high school. Jane worked part time at the school.

30 On 22 October 2006 Jane and Pamela separated. Jane and Grace returned to

Perth. In March 2007 Jane sold her vehicle for $11,500 and retained the proceeds.

31 In April 2007 Jane moved interstate with Grace where she commenced a relationship with Jennifer Page. Subsequently they purchased a home together in the suburbs in about May 2010 at a cost of $560,000 funded with a 100% loan from a bank. Their relationship ended in November 2010. The home is on the market for sale. The balance of the mortgage is currently $595,000.

THE PARTIES AND THEIR EVIDENCE

32 It appeared that both parties found the hearing to be a difficult experience because of emotional issues arising from their relationship. At the commencement of that relationship Pamela was financially secure. Jane had comparatively little and had just given birth to Grace. Jane moved in to live with Pamela at Pamela’s request. They brought up Grace together. It was clear that Pamela was devoted to Grace. Jane was quick to acknowledge this.

33 There were difficulties in the parties’ intimate relationship from about 1999.

Pamela wanted to attend counselling in relation to that aspect of their relationship but Jane would not. They did attend some counselling. Notwithstanding the difficulties in their sexual relationship they continued to live together with Grace as a family.

34 Pamela clearly felt strongly about financial issues. She clearly stated that she felt “used” and “taken advantage of”. Neither party was unnecessarily unkind to the other during the course of their evidence.

35 I consider that both endeavoured to give truthful evidence but had different recollection of events with respect to their efforts during the relationship and particularly Jane’s efforts.

36 Jane answered questions clearly and concisely and readily acknowledged Pamela’s contributions during the relationship both financially and in relation to the upbringing of Grace.

37 Pamela was reluctant to make concessions in favour of Jane in relation to her contributions during the relationship. Pamela was certain about the financial detail and her evidence in that respect was given with remarkable precision down to some very insignificant amounts. In relation to that financial detail, I consider her evidence to be reliable. She gave Jane little credit for her contributions during the relationship.

38 Jane’s disclosure was unsatisfactory. She had discovered no bank statements since 2003 and virtually no documents dated after 2006. Counsel for Pamela was critical of Jane’s failure in this respect rightly pointing out that the duty of disclosure was absolute. No documents had been provided in relation to the home in the Eastern States in which Jane has a joint interest. These criticisms were well founded. Notwithstanding, I formed the impression that Jane’s evidence in relation to this home and financial matters in general was truthful. She explained she had not been asked for documents. I consider the evidence she gave to be reliable and consistent with her financial circumstances which are not complex.

ASSETS AND LIABILITIES

39 Counsel for Pamela submitted that reliable information as to Jane’s bank accounts and superannuation benefits had not been provided and accordingly that the court should be extremely cautious in accepting Jane’s evidence in relation to the pool of assets and values to be attributed thereto.

40 The dispute arises in respect of two issues:

• the values to be attributed to certain assets and liabilities; and

•whether sums of money which are no longer available should be added back into the pool as notional assets or “addbacks”.

VALUATIONS

Jane’s Motor Vehicle

41 Jane estimates the value of her vehicle to be $8,000. Pamela estimates its value to be $11,300. Pamela relies on a red book valuation dated 28 March 2011.

42 I intend to accept Pamela’s value as she has provided evidence in support of the asserted value.

Jane’s Bank accounts

43 Pamela questions the amounts at credit of Jane’s accounts. Jane’s evidence is that she has approximately $5 in an ANZ Bank account and otherwise no savings.

44 When she swore her Form 13 financial statement there was approximately

$5,000 in a National Australia Bank account in joint names with her former partner. She estimated her share to be $2,500 but she no longer has those savings. She has no savings in Home Building Society account.

45 While Jane’s disclosure is unsatisfactory, I accept her evidence that she has no savings of any significance. I found her to be a truthful witness and her evidence in this respect is consistent with her current financial circumstances which are modest. She works part time, rents a home and supports herself and her daughter.

Jane’s Household Contents

46 Jane says that her household contents are worth $3,000. Pamela asserts that they are worth $5,000. I intend to accept Jane’s evidence in this respect. The items are in her possession. She is more likely to be aware of their condition and second hand value.

FUNDS TO BE ADDED BACK

47 Pamela seeks to have various sums received by Jane added back into the pool.

She feels strongly about being left to pay debts after separation saying Jane made virtually no contribution to them although she had access to funds.

Sale Proceeds of Jane’s motor vehicle

48 [In] March 2007 Jane sold this vehicle which had been transferred to her and retained the entire proceeds of $11,500. Pamela was left to repay the balance of the ANZ personal loan in her name of $6,900. Pamela had intended that the loan would be repaid from the sale proceeds and the balance of about $4,600 could be retained by Jane.

49 When the relationship ended Jane was not working and she cared for Grace on a full time basis. She remained in Country Town 5 until December 2006. At the time she was in receipt of Centrelink benefits and child support. She had savings amounting to about $5,600 in her account at the end of October 2006. She acknowledged that she paid $750 for some cosmetic surgery. She owed Pamela money for telephone accounts, her share of a holiday and she did not pay her share of the car loan. She moved to Perth in December 2006. At the time she sold the car she could not afford to keep it. The sale proceeds were used for the living expenses of herself and Grace.

50 Jane has had the use of these funds. I consider that this was a premature distribution of funds. I consider that the amount which would have repaid the loan namely $6,900, as intended by Pamela, should be added back into the pool. The balance of $4,600 will not be added back as Pamela indicated she had no objection to Jane retaining this sum, believing her to be “doing it tough”.

Home Building Society Shares

51 Jane had shares valued at approximately $3,500. She acquired these shares when Statewest Bank merged with Home Building Society. At the time of separation she was not aware that she could cash these shares. She subsequently learned she could do so and she received those funds which once again were applied to the support of herself and Grace. I do not intend to add this amount back into the pool. I accept that the funds were used for living expenses for herself and Grace.

The Telephone Bill

52 After separation Pamela paid a Telstra account for Jane of over $2,000 and she seeks to have that sum added back into the pool. Jane had obtained the mobile phone in her name using Pamela’s credit card. I accept that Pamela gave permission for its use. Jane made at least two payments towards this bill, one of about $600 and one of about $100. Pamela had to pay the balance and the debt was placed in the hands of collection agents. I do not intend to add this amount back into the pool. The parties were in very different financial circumstances. At separation Pamela was in employment earning a significant salary. Jane was dependent on Centrelink benefits and child support. What funds were available to her were used for living expenses.

[Interstate Property]

53 Jane has a one half interest in this property. Notwithstanding the lack of disclosure in relation to this I consider that Jane has given truthful evidence about its value. Jane’s former partner lives in the property which is on the market for sale. Jane has agreed with her that when the property is sold, any profit or loss will be that of Jennifer. It is likely to be a loss because the outstanding balance on the loan is said to be greater than the value of the property. Jane is not making any repayments to the housing loan.

54 As I accept Jane’s evidence about her agreement with her former partner then it is inappropriate to add either the asset or the liability into the table of assets.

Pamela’s Credit Card Debt

55 I do not intend to include the credit card debt in the pool as a liability. The debt of Pamela was accumulated after separation. The parties have very different standards of living and Pamela has a high discretionary weekly expenditure.

Jane’s Superannuation

56 Once again Jane’s lack of disclosure was an issue. She has some superannuation with an Asgard policy, the value of which is not known. She worked for a period of six months in Country Town 5 and contributed to the Asgard policy at that time. Given that short period of work and the nature and duration of her employment for other periods during the relationship the value is not likely to be significant.

57 I am satisfied upon the evidence that the values to be included for the assets and liabilities in the table below are reasonable. Where I have not included sums received by Jane as “add backs” they will be taken into account when considering the parties respective contributions during the relationship.

I find the asset pool to be as follows:

ASSETS	APPLICANT	RESPONDENT
Property 1	$520,000
Motor Vehicle	1,500
Motor Vehicle	11,500
Motor Vehicle	11,300
Sale proceeds of motor vehicle	6,900
ANZ Bank accounts	1,050
Police & Nurses Credit Society	250
Home Building Society & Westpac	5
Household Contents	3,000	10,000
Miscellaneous sporting goods	1,000
TOTAL ASSETS	21,205	545,300
LIABILITIES
ANZ mortgage Property 1	61,000

Car Loan	12,000
Car Loan	14,500
TOTAL LIABILITIES	12,000	75,500
TOTAL NET ASSETS	9,205	469,800

SUPERANNUATION	APPLICANT	RESPONDENT
Wealth Portfolio	$19,000
ING Super	$63,000
GESB	1,252	$135,000
Asgard	Minimal
TOTAL SUPERANNUATION	1,252	$217,000

CONTRIBUTIONS

Commencement of cohabitation

58 Broadly speaking the parties agree the values of their respective property at the commencement of cohabitation.

59 Jane had minimal assets including household furniture and effects of about

$8,000 and a motor vehicle valued at $2,000. Her superannuation entitlements were nominal. She had a debt to Westpac Bank of $3,000.

60 Pamela on the other hand owned Property 1 valued at approximately $190,000 with a mortgage of about $83,000. The equity in that property was therefore about

$107,000. She also owned a motor vehicle worth $16,000 and home contents and furniture of about $10,000. She had an investment of $33,156 and an investment plan of $20,092. Her superannuation entitlements with GESB were $65,315.

61 Clearly, Pamela’s assets at the commencement of cohabitation were significantly greater than those of Jane. Grace was born shortly after the parties relationship commenced and the parties lived together in Pamela’s home at Property 1. Jane was not in employment and cared for Grace. Pamela was in full time employment.

Contributions During the Relationship

62 The parties kept their finances separate and operated separate bank accounts.

Pamela made all of the mortgage repayments in respect of the property at Property 1 from her salary and Jane did not make any payments directly to the home loan repayments or any expenses pertaining to the property. The parties mostly shared the bills for gas, electricity and telephone.

63 While residing at Property 1 Jane paid $100 a week to Pamela for rent which included a component of $25 per week towards the repayment of a loan which Pamela refinanced on her behalf shortly after cohabitation commenced.

64 During the relationship Jane was primarily responsible for the care of Grace.

She worked from time to time either casually or in short term contracts. From that employment she derived an income which was paid into her own bank account. She also received child support for Grace and social security payments.

65 Pamela’s salary was paid into a bank account operated by her.

66 Later in the relationship the arrangement to pay rent changed. Instead Jane bought food for the family and Pamela’s share of the food was in lieu of rent which Jane would otherwise pay to her for occupying her home. She continued to pay $25 per week towards the loan. Later in the relationship Jane paid for food and groceries, her personal expenses and half of the utility costs. Pamela paid for all expenses in respect of Property 1, housing costs, rates, insurance and maintenance costs.

67 During the relationship both parties contributed their income and earnings although those of Pamela were significantly greater than those of Jane.

68 Pamela’s earnings during the relationship were as follows: Year Ending 1994 $39,497

Year Ending 1995 $35,616

Year Ending 1996 $38,784

Year Ending 1997 $41,148

Year Ending 1998 $44,831

Year Ending 1999 $48,263

Year Ending 2002 $52,105

Year Ending 2005 $59,908

Year Ending 2006 $64,468

Year Ending 2007 $73,986

69 Jane received sole parent payments. She worked for various periods part time and casually. Her child support payments varied from $7 per month to $400 per month. Her primary role was to care for Grace.

70 Pamela paid for most of the cost of overseas holidays.

71 At various times the parties lived in accommodation, the cost of which was subsidised by Pamela’s employer.

72 The parties shared the cost of the site fees for the caravan of $25 per week. Jane purchased soft furnishings for it and Pamela purchased recreational equipment for use while at the caravan.

73 The caravan was sold in about 2005. Pamela gave $1,000 to Jane from the proceeds while they were in Country Town 4. She later gave Jane a further $500 from the sale of the other caravan.

74 Pamela purchased an investment property in Property 3. She paid all of the expenses relating to that property.

75 Pamela borrowed an additional sum against the mortgage for Property 3 of

$20,000 for the purpose of constructing the granny flat. She paid for various other costs relating to the improvement and maintenance of that property for example for tree removal and the building of a pergola.

76 In 2003 Pamela gave Jane a motor vehicle, the value of which she estimated at the time to be $9,000. Jane sold it in 2005 for $2,500. She used $2,200 of the proceeds to buy another vehicle which she subsequently sold for $3,800. She retained the proceeds of sale of both vehicles.

77 In 2005 Pamela purchased a motor vehicle for $17,000 registered in her name.

She paid a deposit of $4,700 from her savings and borrowed $12,125 from ANZ. She and Jane agreed that each would contribute $50 per fortnight to the loan. I have already referred to Jane’s sale of the vehicle and her retention of the proceeds, while Pamela retained the balance of the loan.

78 In 2006 Jane purchased a mobile telephone using Pamela’s credit card. After separation Pamela paid most of the outstanding telephone accounts.

79 The granny flat at Property 1 was constructed in 2000 and a pergola erected at the home. Both parties worked to demolish the yard and the old pergola and they were assisted by mutual friends. Jane deposes to managing the builders and tradesmen although Pamela says it was she who oversaw the construction while she was on leave from employment. Jane says she was involved in bricklaying, gardening, cleaning, painting, tiling, grouting. Pamela acknowledges she did this work but described it as “limited”. A relative of Jane’s assisted with some work although Pamela says he was paid for that work.

80 In relation to the caravan both parties say that they carried out work including landscaping and gardening. Jane’s father also carried out work there.

81 Pamela managed the family’s finances. Jane managed her own bank account.

82 The parties relocated on a number of occasions during their relationship. Jane deposes that on the occasions Pamela went first she managed and oversaw the removals and the renting of Property 1. Pamela said the removals were carried out by the removalists and it was not necessary for Jane to do anything.

83 During the relationship Pamela worked full time, usually from 7.00am to around

4.00pm. Jane cared for Grace, did the housework, washing, ironing, preparing meals, shopping and day to day chores.

84 Pamela was reluctant to acknowledge Jane’s efforts in the home. She said that when she returned from work she took over cleaning the house and looking after Grace. Her observation was that Jane often went to the gym and went out for coffee.

85 It appeared that Pamela was somewhat obsessive about the housework she did.

She said that when returned home from work she did almost as much housework as Jane might have done during the day. When asked if she made the bed in the morning she said she did not, she would like to have but could not do so because Jane was still in it.

86 Pamela said they often went together shopping and invariably she paid for items purchased.

87 Jane on the other hand readily acknowledged Pamela’s contributions as a parent to Grace, in fact she readily acknowledged almost all of Pamela’s contributions. Undoubtedly Pamela was devoted to Grace from the time she was born. After the parties started living together she assisted feeding, changing and interacting with the baby. She helped at nights. When she got home from work she relieved Jane.

88 As Grace grew older she continued this involvement in her care. She read her a story every night and when they were separated she did this over the phone. She taught her to swim. She painted her bedroom, made outfits and costumes, she helped with her school work and activities. I accept all of her evidence in this respect.

89 I have already referred to the parties relocations during the course of their relationship. In this respect too, Pamela was reluctant to give any credit to Jane for supporting her and promoting her career. Initially Pamela said she did not wish to move and Jane encouraged her to do so that she could travel. However she later acknowledged that she moved to advance her career. In particular, the position at Country Town 5 in 2006 was a substantial advancement in her career.

90 Jane encouraged Pamela in her career. She and Grace followed her to remote locations and Jane provided practical and emotional support. Pamela’s career advanced as a result of her country relocations at which time she had the companionship of Jane and Grace and the support of the family unit.

91 I consider that Pamela’s career was advanced during the course of the relationship. I am not convinced that the relocations hampered the advancement of Jane’s career to any great extent. She had only part time or casual employment during the relationship. Pamela assisted her in obtaining some work at schools. Jane’s

primary obligation was to care for Grace and there was no evidence of a career path which was subsequently hampered by the moves. From time to time Jane has worked in retail but that has not been long term permanent employment.

Contributions After Separation

92 Post separation Pamela has made all of the financial and non financial contributions to the property. Property 1 has increased in value. Pamela’s resources, namely her superannuation benefits, have also increased. She kept in touch with Grace and assisted when there were some parenting difficulties.

93 I have already referred to the financial aspects of Jane’s relationship with

Jennifer Page.

94 I have excluded the interstate property and its associated debt from the pool. If I were to include it and accept Jane’s evidence, it would show as a loss. I have excluded it for the reasons which I consider are appropriate and consistent with the evidence and therefore it has no impact on my assessment of contributions.

ASSESSMENT OF CONTRIBUTIONS

95 Pamela made a substantial initial financial contribution which far outweighed that of Jane. During the course of the relationship she also made a far greater financial contribution through her continued employment and earnings. Clearly these could not be matched by Jane who had the primary care of Grace. Jane made some direct financial contributions from the funds available to her from her occasional employment, child support and pensions. I expect these funds found their way into the family budget. Indeed it appears Pamela was very keen to ensure that Jane paid her way. At the start the parties were in an intimate relationship and yet they had a business like arrangement whereby Jane paid rent or bought food in lieu of rent when they lived together at Property 1.

96 Both parties made non financial contributions, in the case of Jane these were consistent with her role as primary carer for Grace and in the case of Pamela, these were consistent with her employment duties. Jane supported Pamela in her career. She has been promoted and has a significant earning capacity.

97 I consider that Jane made the greater contribution to the welfare of the family in the capacity of homemaker and parent. I have come to this conclusion because Pamela worked full time in a demanding role and it is likely that the primary responsibility for the homemaking duties and care of Grace on a day to day basis would have rested on Jane’s shoulders. However I by no means minimise Pamela’s contribution in this respect. She made a very substantial contribution in a parenting role for Grace throughout the parties’ relationship and it was clear that she loved and supported Grace as if she was her own child. As she had no obligation to support Grace I regard her contribution in this respect to be significant.

Conclusions as to Contributions

98 Pamela assesses Jane’s contributions during the relationship to be between 5 and

10% and her own a corresponding 90-95%. Taking into account her significant contributions post separation, she proposes that contributions should be assessed 100% to her and 0% to Jane.

99 I am of the view that over this nine year relationship Jane made a contribution financially, non-financially and as homemaker and parent. She also supported Pamela’s career. Pamela made significant financial contributions and the sole contributions post separation and significant contributions as parent.

100 During the course of the relationship Property 1 increased in value. Pamela made most of the financial contributions to that property and Jane paid rent. Both parties made non financial contributions to the property. Post separation the value of property increased further. Pamela solely contributed to that increase.

101 Pamela’s superannuation benefits increased in value during the relationship. She was supported in her career by Jane. Jane did not accumulate any superannuation benefits of any significance.

102 Post separation Pamela’s superannuation increased in value solely through her own efforts.

103 Exercising the broad discretion which I have and taking into account the initial contributions of Pamela, the parties’ contributions during the nine year relationship and post separation I conclude that the overall percentage based on contribution should be assessed 20% to Jane and 80% to Pamela.

SECTION 205ZD(3) FACTORS

104 Jane is aged 43 years and is in good health. Pamela is aged 55 years. She has suffered from stress and anxiety and has had some time off work. She attributes this directly to the breakdown in her relationship. She has returned to work although on occasions has received hospital treatment. Pamela’s annual salary is $117,000. Tenants occupy the granny flat at her home although at present they only pay nominal rent.

105 Jane is currently working about 12 hours a week as a kitchen hand. She is hopeful of obtaining some private work and setting up her own business. Currently she earns about $635 per week. She also receives child support from Grace’s father of about $200 per week.

106 Jane has the care and control of Grace who is currently 13 years of age.

107 The commitments of both parties are as set out in their Form 13 financial statements.

108 Jane has the responsibility to support Grace. Jane receives family tax benefit.

She lives in rental accommodation. The rent is $350 per week. She has a boarder who contributes $150 per week for her accommodation costs.

109 Pamela does not support any other person and is not eligible for any other benefits.

110 Jane has a standard of living commensurate with her income. Pamela enjoys a good standard of living. During the hearing Counsel for Jane made reference to her high level of discretionary spending.

111 Pamela has superannuation entitlements of $217,000. Jane has known superannuation entitlements of $1,252.

112 Jane was in a relationship with Jennifer Page for about three and a half years.

Her evidence was that their house will be sold and Jennifer will retain any profit or as is more likely, meet the losses. Jane said she had no intention of making any claim upon Jennifer. I considered she was telling the truth. If she was not and she subsequently made a claim for property settlement, it seems that the claim would be negligible. The home they own has a negative equity. Jennifer is in the Services and is likely to have superannuation benefits. Jane’s claim is upon three and a half years of superannuation at best. This is not a financial resource which would impact on the percentage division. It is also possible that Jennifer would have a claim upon Jane for property settlement.

113 I consider there should be a further adjustment to the percentage based on contributions. The significant factors are:

• Jane’s commitments which are necessary to enable her to support Grace;

• Pamela’s significantly greater earning capacity; and

•Pamela has significant financial resources by way of her superannuation benefits.

114 Taking into account all of the above matters and again in the exercise of the very broad discretion which I have in terms of the legislation I consider that an adjustment of 7.5% in favour of Jane would be justified. This would bring about an outcome whereby Jane receives 27.5% of the assets and Pamela receives 72.5%.

JUST AND EQUITABLE

115 As the final step in the process I am required to consider whether or not the outcome based on the assessment of contributions and the adjustment on account of s 205ZG(4)(e) and s 205ZD factors brings about a result that is just and equitable.

116 I do not consider that Jane’s application should be dismissed and that she should receive nothing. I am satisfied that during the period of almost nine years in which the parties were in a defacto relationship she made contributions. She applied her income and efforts to the relationship and she supported Pamela. It would result in injustice if this was not recognised by way of an order for property settlement.

117 Jane’s financial contributions are not significant when compared to those made by Pamela and it follows they do not represent a significant proportion of the pool of

assets. This is because Pamela’s initial contributions and on-going significant financial contributions throughout the relationship must also be recognised.

118 The net assets (excluding superannuation benefits) amount to $479,005.

Therefore 27.5% of the net assets amounts to $131,726. Jane retains net assets worth
$9,205. The cash sum to be paid to her by Pamela is therefore $122,521.

119 Jane will leave the relationship with some cash. Pamela retains her home, her earning capacity and her superannuation benefits.

120 In the circumstances of the relationship of these parties I consider the outcome to be just and equitable.

THE ORDERS

121 Subject to hearing from Counsel, the orders I propose to make are as follows:

1. Within 60 days the respondent pay to the applicant the sum of

$122,521.

2.Contemporaneously with the payment referred to at paragraph 1, the applicant shall at her expense cause caveat xxxxxxx registered against the title to the property situated at [Property 1] to be withdrawn.

3.In the event the respondent fails to make the payment to the applicant pursuant to paragraph 1 the said property at [Property 1] be sold and the proceeds of sale be disbursed as follows:

a) payment of agents fees, commissions and costs of sale;

b)discharge of mortgage registered against the title in favour of ANZ Bank;

c) payment of the usual conveyancing, adjustments and rates and taxes;

d) payment to the applicant of $122,521; and e) payment of the balance to the respondent.

4.All of the respondent’s interest, if any, in the personal property, chattels, superannuation or bank accounts in the possession or name of the applicant vest in the applicant absolutely.

5.All of the applicant’s interest if any, in the said property at [Property 1], the personal property, chattels, superannuation or bank accounts in the possession or name of the respondent vest in the respondent absolutely.

6. Unless otherwise specified in these orders:

a) each party be solely entitled to the exclusion of the other to all property and chattels of whatsoever nature and kind in the possession of such party as at the date of these orders and that, for this purpose, bank accounts are deemed to be in the possession of the person whose name appears on the banks record 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 whose age or working future provides the conditions for payment out of such entitlement;

b)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.

7.The applicant and the respondent do all acts and things and give all consents and execute all documents necessary to give effect to these orders.

8.There be liberty to apply in relation to the implementation of these orders.

I certify that the preceding [121] paragraphs are a true copy of the reasons for judgment delivered by this Honourable Court

Secretary