N, A-B v v, Am - [2017] SASCFC 147

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
N, A-B v V, AM
[2017] SASCFC 147
Judgment of The Full Court
(The Honourable Justice Nicholson, The Honourable Justice Bampton and The Honourable Justice Hinton)
8 November 2017
FAMILY LAW AND CHILD WELFARE - DE FACTO AND OTHER RELATIONSHIPS UNDER STATE LEGISLATION - ADJUSTMENT OF PROPERTY INTERESTS - RELEVANT CONSIDERATIONS
Mr N and Ms V lived in a de facto relationship between 1998 and 2004. They had one child together. After separation Ms V brought proceedings in the District Court under the De Facto Relationships Act 1996 (SA) (now the Domestic Partners Property Act 1996 (SA)). Ms V sought an order for property adjustment on the basis that she lived with Mr N in a de facto relationship for approximately six years. A District Court Judge made a declaration that Mr N and Ms V were in a de facto relationship between May 1998 and 12 June 2004 and ordered that there be no adjustment of either party’s one half share interest in property located at Greenhill, that the contents of the Greenhill property be divided equally unless otherwise agreed and that there be no adjustment of either party’s ownership of motor vehicles. Mr N appealed the order that there be no adjustment to either his or Ms V’s one half share interest in the Greenhill property. Whether the Judge erred in not giving sufficient consideration to Mr N’s financial contributions after the date of separation – whether the Judge failed to give Mr N credit to reflect Ms V’s sole occupation of the property after separation – whether Mr N is entitled to a greater share of the property.
Held per Nicholson and Bampton JJ (Hinton J agreeing):
1. Appeal allowed.
2. The order of the District Court Judge that there be no adjustment of either party’s one half share interest in the Greenhill property is set aside.
3. Mr N is to receive 60 per cent and Ms V 40 per cent of the net proceeds of sale after discharge of the ANZ Mortgage and costs of sale.
4. Mr N and Ms V should be jointly responsible for the discharge of the mortgage of the Greenhill property from the proceeds of the sale.
5. Mr N and Ms V should each bear sole responsibility for the legal fees incurred by each of them which are the subject of charges endorsed on the Certificate of Title.
6. The matter be remitted to a Master of the District Court to make such further orders as are necessary so as to conform to these reasons.
7. Liberty to either party to apply to a Master of the District Court on short but reasonable notice to the other side.
De Facto Relationships Act 1996 (SA) s 9, s 10, s 11, s 12; Domestic Partners Property Act 1996 (SA); Family Law Act 1975 (Cth) s 79; Legal Services Commission Act 1977 (SA) s 18A, referred to.
Love v Chidley (2002) 219 LSJS 287; Kemp v King (1995) 127 FLR 264; Parker v Parker (1993) 16 Fam LR 863; W v D (2012) 115 SASR 61; Hogg v Roberts (2003) 87 SASR 248; Evans v Marmont (1997) 42 NSWLR 70; Arnold v Dalton (2002) 84 SASR 482; Mallet v Mallet (1984) 156 CLR 605, discussed.

N, A-B v V, AM
[2017] SASCFC 147
Full Court: Nicholson, Bampton and Hinton JJ
NICHOLSON AND BAMPTON JJ.
Introduction

Mr N and Ms V have been in dispute for over 13 years regarding the division of property following the termination of their de facto relationship which subsisted between 1998 and 2004. Their daughter S was born on 3 February 1999.
After separating on 12 June 2004, Ms V brought proceedings in the District Court under the De Facto Relationships Act 1996 (SA) (“the Act”) (now the Domestic Partners Property Act 1996 (SA)). Ms V sought an order for property adjustment on the basis that she had lived with Mr N in a de facto relationship for approximately six years. Mr N denied that the relationship amounted to a de facto relationship, and claimed that if a de facto relationship existed, any adjustment order made ought to result in a division of property favourable to him.
Despite proceedings being issued in October 2004, the trial of the matter was not heard until January 2014. The delay was due to Mr N and Ms V changing solicitors, their failure to attend numerous directions hearings between 2006 and 2010, various lengthy adjournments including for the purpose of focusing on custody proceedings concerning their daughter, their lack of legal representation, and Ms V’s attempts to restrain Mr N’s then solicitor from representing Mr N.
By the time the trial was heard, Mr N and Ms V were acting for themselves. Against this protracted history, it was not until 4 March 2016, more than two years after the trial Judge reserved his decision, that judgment was delivered.
The Judge made a declaration pursuant to s 9 of the Act that Mr N and Ms V were in a de facto relationship between May 1998 and 12 June 2004. Having done so, the Judge then considered Ms V’s application for the division of property. His Honour determined that there be no adjustment to either Mr N’s or Ms V’s one half share interest in their former jointly owned home at Greenhill (“the Greenhill property”).
The Judge indicated that in order to recognise each party’s interest in the Greenhill property, and because there was no satisfactory evidence as to the value of the property which permitted the making of a lump sum payment order, he would order that the Greenhill property be sold and that the net proceeds of the sale be divided equally between the parties. Having given that indication, the Judge said he would allow Mr N and Ms V two months from the date of his judgment to consider whether one of them wished to purchase the other party’s interest in the property. His Honour said that, if neither party wished to purchase the other party’s interest, he would make an order at an adjourned hearing on 4 May 2016 that the Greenhill property be sold by an agent appointed by agreement between the parties or by an agent appointed by the Real Estate Institute of South Australia.
The Judge also determined that the furniture and electrical appliances within the house (other than fittings) be sold and the proceeds of the sale be divided equally between the parties if they could not reach an agreement within two months of the date of judgment as to the division of those items.[1] Finally, the Judge said he would hear the parties as to the question of costs and formal orders required in respect of the division of property on 4 May 2016.
[1] The Judge made findings with respect to other assets held in the sole name of Mr N to the effect that they were not to form part of the pool of assets to be divided between the parties. There has been no challenge to these findings.
Mr N has appealed against the finding that there be no adjustment of either party’s one half interest in the Greenhill property. Mr N seeks orders that he be given credit in the adjustment of property to reflect the mortgage payments made by him between “12 June 2004 to date being $175,000” and credit with respect to Ms V’s sole occupation of their former home after 12 June 2004 “for a sum to be determined”.
Shortly prior to the hearing of the appeal Ms V’s pro bono solicitors applied to the Judge for the making of final orders. On 14 February 2017, the Judge made the following orders pursuant to s 10(1) of the Act:
(i)that there be no adjustment of either party’s one half share interest in the property located at Greenhill;
(ii)that the contents of the property be divided equally unless otherwise agreed; and
(iii)that there be no adjustment of either party’s current ownership of motor vehicles.
At the commencement of the hearing of the appeal, it was ordered that the notice of appeal be amended to reflect the Judge’s final orders. Mr N represented himself on the appeal and Ms V was represented by counsel.
For the reasons that follow, we would allow the appeal, set aside the first order made by the Judge and substitute a property adjustment order in Mr N’s favour.
The relevant dates
The following is a chronology of relevant events.
·Ms V and Mr N were in a de facto relationship for six years between May 1998 and 12 June 2004.
·Their daughter S was born on 3 February 1999.
·Land at Greenhill was purchased on 1 July 1999.
·The parties moved into a newly constructed house on the land at Greenhill in early 2002.
·Mr N left the Greenhill property in June 2004, when S was aged five years.
·Ms V commenced these proceedings in October 2004.
·S continued to live with Ms V in the Greenhill property until 2011.
·In 2011, when S was aged 12 she went to live with Mr N.
·Judgment was delivered on 4 March 2016.
·Ms V has lived continuously in the Greenhill property from early 2002.
·At all material times Mr N’s income has been derived from his Deli‑mart business.
·Ms V has not worked since she gave birth to S.
There are three periods between the commencement of the de facto relationship in May 1998 and the date of judgment on 4 March 2016 that are material to the issue of division of property.
The first period is the six year period of the de facto relationship from May 1998 to June 2004. The second period is the period Ms V and S lived together in the Greenhill property from the time the de facto relationship ended to when S left to live with Mr N, a period of some seven years from June 2004 to 2011. The third period is that from 2011 when S left the Greenhill property to the date when judgment was delivered in March 2016, a period of five years.
The judgment
The difficulty faced by the Judge at trial was that both Mr N and Ms V were self-represented and there was a dearth of evidence regarding the value of the assets of the relationship. The Judge stated that it was not surprising that the parties’ cases were poorly presented by reason of their lack of legal expertise and that the evidence put before him was unsatisfactory in a number of respects, in particular, as to the identity and value of the parties’ assets and incomes. For example, the Judge identified the Greenhill property as their primary asset. The only evidence regarding the value of the home was the parties’ oral evidence estimating its value at the time of separation and at trial. Ms V estimated the value of the property at separation to have been about $350,000 and, on the basis of a council rates notice, about $520,000 at the time of trial.
Mr N said in evidence that his estimation of the value was between $300,000 and $330,000 at separation and between $600,000 and $650,000 at trial. Ms V subsequently agreed that, at the time of trial, the house was worth “in the order of $600,000”.
The first period of time – the acquisition of the Greenhill property
The Judge found that on 1 July 1999, while Ms V was still living in rental accommodation in Pennington, Mr N signed a contract for the purchase of a vacant block of land at Greenhill for $32,500. Mr N paid a cash deposit of $15,000. Ms V’s father advanced her a loan of $4,000 towards the purchase. The balance of the purchase price was paid through Mr N establishing a loan account with the Commonwealth Bank of Australia (“CBA”) in his sole name.
On 26 July 1999, the land was transferred to Mr N and Ms V as joint tenants. In early 2000, Ms V and S commenced living with Mr N in his home at Salisbury East while a house at Greenhill was being constructed. Ms V agreed that while she was living at Salisbury East she made no financial contributions other than the parenting payments she received for their daughter. Mr N paid all of their expenses from his earnings. The Judge found that, from the time she became pregnant, Ms V was reliant on Mr N for financial support. Following the birth of S, she stayed at home, cared for S and attended to most of the household chores, while Mr N ran the Deli-mart.
Mr N repaid the loan obtained from Ms V’s father and made all of the CBA loan repayments from his earnings until the mortgage was discharged on 22 August 2000.
Soon thereafter, the parties commenced building the house on the Greenhill property. They jointly borrowed $87,000 from the ANZ Bank in August 2000 and a further $45,000 in November 2001. Both loans were secured by a single registered mortgage over the Greenhill property (“the ANZ mortgage”). There is no dispute that all instalments of principle and interest due on the ANZ mortgage have been made by Mr N from his earnings.
In February 2002, Mr N sold his Salisbury East property and the proceeds from the sale of around $52,000 were used to help reduce the money owed under the ANZ mortgage. It was at about that time that the parties moved into the newly constructed house at Greenhill. Ms V continued to stay at home and care for S while Mr N ran his Deli-mart. Ms V gave evidence that she attended to the domestic chores as she had done at the house at Salisbury East. She said that Mr N continued to wash his clothes, clean his bedroom, and prepare some meals. The Judge said that it was clear that, in addition to paying the ANZ mortgage instalments, Mr N was primarily responsible for the general living expenses incurred by the parties.
In addition to meeting the parties’ financial expenses, Mr N bought furniture and electrical appliances for the house for a total of about $26,000. Ms V provided some furniture worth about $3,000 which she had purchased prior to, or while, living at Pennington.
The second period of time – June 2004 to 2011
The de facto relationship ended in June 2004 and Mr N moved out of the Greenhill property. He lived in his Deli-mart for about 12 months before purchasing a home at Salisbury North with mortgage finance. Mr N continued to run the Deli-mart business following separation. Ms V continued to live in the Greenhill property with S until 2011, when S, then aged 12, went to live with Mr N and one of his daughters at Salisbury North.
Mr N continued to pay all mortgage instalments due under the ANZ mortgage from his earnings during the second period. Ms V’s financial contributions to the property during this period involved paying the council rates which she estimated were approximately $1,600 per annum at the time of trial, utilities, and minor maintenance costs which the Judge said were unspecified.
The third period of time – 2011 to the date of judgment
On 17 August 2011, Ms V initiated proceedings in the Federal Magistrates Court (now the Federal Circuit Court) seeking custody orders in relation to S. Those orders were contested by Mr N and, following lengthy proceedings, the Court made orders on 7 May 2013 that S live with each of her parents on an equal shared week about basis. S was living with Mr N at the time and the extent to which S in fact went to stay with her mother every second week is unclear on the evidence.
As with the second period of time, Mr N continued to pay all mortgage instalments due under the ANZ mortgage from his earnings during the third period. Ms V continued to pay the council rates, utilities and minor maintenance costs during the third period.
The findings
The Judge said that it was his task to effect a division of property between Mr N and Ms V in a manner which was just and equitable and that the appropriate time for valuing assets in an application for adjustment orders is the date of trial.[2]
[2] Love v Chidley (2002) 219 LSJS 287 at 321; Kemp v King (1995) 127 FLR 264 at 270; Parker v Parker (1993) 16 Fam LR 863 at 865.
The Judge found that Ms V’s contribution to the Greenhill property was non‑financial but important nonetheless. He said that from the time she became pregnant until the time the relationship ended she stayed home caring for S and attending to all of the domestic duties, save for Mr N’s minor contributions. It was by reason of those responsibilities, and with encouragement from Mr N, that she gave up her job as a sewing machinist and terminated her course in aged care at TAFE. His Honour said that her contribution to the family unit was substantial.
His Honour held that in respect of the Greenhill property of which the parties were co-owners, there was no sound reason to attach greater value to Mr N’s financial contribution as compared with Ms V’s non-financial contribution.
Mr N argued before the Judge that Ms V had resided at the Greenhill property without making any financial contribution to the property (other than payment of council rates and utilities) and, therefore, he was entitled to have an occupation fee deducted from Ms V’s capital share of the proceeds of sale. The Judge rejected that argument referring to the general principle that a co-owner who is in sole occupation of a property is not liable to pay an occupation fee to the out of possession co-owner in the absence of ousting conduct by which the former has excluded the latter from the property.[3] His Honour said that Mr N had not been “ousted” from the property[4] but, rather, Mr N voluntarily moved out of the property at the time of separation.
[3] See P. Butt, Co-owner’s Claim for Occupation Fee (2013) 87 ALJ 374 and authorities discussed therein.
[4] In the manner explained in the authorities such as W v D (2012) 115 SASR 61.
The Judge also rejected Mr N’s claim for an occupation fee on the basis of and having accepted Ms V’s evidence that she and Mr N had agreed that she should live in the property so that S could attend a particular school.[5]
[5] [2016] SADC 20 at [62].
The Act
As the Judge identified, s 10(1) of the Act prescribes the power of the Court on hearing an application for division of property as follows:
On an application for the division of property, the court may make orders it considers necessary to divide the property of either or both the de facto partners between them in a way that is just and equitable.
Section 11 prescribes the matters that must be taken into account in deciding whether to make an order for division of property:
(1)In deciding whether to make an order for the division of property under this Part, and if so the terms of the order, the court –
(a)     must consider the financial and non-financial contributions made directly or indirectly by or on behalf of the de facto partners to –
(i)the acquisition, conservation or improvement of property of either or both partners; or
(ii)the financial resources of either or both partners; and
(b)     must consider the contributions (including homemaking or parenting contributions) made by either of the de facto partners to the other partner or to children of the partners or either of them; and
(c)     must have regard to the terms of any relevant cohabitation agreement; and
(d)     may have regard to other relevant matters.
Section 12 requires the Court as far as practicable, to resolve all questions about division of property to avoid further proceedings.
The Judge referred to the process of reasoning to be undertaken by a court when determining a division of property as set out in Hogg v Roberts by Doyle CJ (with whom Perry and Gray JJ agreed).[6] The former Chief Justice said that the requirement to make an order that is “just and equitable” does not give rise to a general and unfettered discretion. The Court is tasked with dividing property, not settling all outstanding financial issues between the parties. The contributions referred to in s 11(1)(a) and (b) are important considerations in determining what is just and equitable.
[6] (2003) 87 SASR 248 at [11]-[18].
Doyle CJ observed that logically the Court starts by focusing on the property in question. The Court then turns to consider the contributions to that property and the contributions to financial resources. Next, the Court determines what contributions have been made “by one party to the other and to the children”[7] and determines whether the contributions of the parties have already been sufficiently recognised and compensated for.
[7] (2003) 87 SASR 248 at [11].

As pointed out by Doyle CJ, the requirement under s 11(1)(d) to have regard “to other relevant matters”[8] means that contributions are not the only matter to take into account. The obligation to have regard to “relevant matters” means the Court is required to take into account matters pertinent to a just and equitable division of property. His Honour said that the following propositions drawn from the reasons of Gleeson CJ and McLelland CJ in Equity in Evans v Marmont[9] apply to applications for division of property under the Act:
·contributions as home maker and parent are not to be treated as inferior to material or financial contributions, they are to be taken into account in a substantial way;
·contributions of a non-material kind are to be assessed in a broad way, rather than by reference to the rate of remuneration payable to commercial providers of such services; and
·there is no reason to approach the division of property on the basis of an assumption that an equal division is appropriate, unless there is good reason to depart from that position.
[8] (2003) 87 SASR 248 at [12].
[9] (1997) 42 NSWLR 70 at 74.
Doyle CJ characterised the four stage approach suggested in Parker v Parker[10] by Young J as being one available approach but that a broader approach will work better in some matters. There is no need to approach the division narrowly by carefully tracking “income and expenditure, contributions made and benefits received” as the Act requires a reasonably broad and practical approach. The four stages of the approach suggested in Parker are:[11]
(i)to identify and value the assets of the parties;
(ii)to determine whether any, and if so what contributions of a financial or non‑financial nature had been made by each partner;
(iii)to determine whether in the circumstances the contributions of the applicant had already been sufficiently recognised and compensated for;
(iv)to make the appropriate adjustment.
[10] (1993) 16 Fam LR 863.
[11] (1993) 16 Fam LR 863 at 870.
As pointed out by Doyle CJ, in order to comply with the Act it is necessary to bear in mind that the object is to divide property in a “way that is just and equitable” and to consider between stages (iii) and (iv) whether there are “other relevant matters”.[12]
[12] (2003) 87 SASR 248 at [18].
Following the reasoning in Hogg, when determining the appropriate order for division of the property, the Judge was not required to embark upon an accountancy exercise carefully tracking income, expenditure, contributions made and benefits received. The Act required a “reasonably broad and practical approach” to the division of property in a “way that is just and equitable”.[13]
The parties’ submissions on appeal
[13] (2003) 87 SASR 248 at [17].
Mr N’s submissions
By ground 1 of the notice of appeal Mr N contended that the Judge erred in not giving any or sufficient consideration to the mortgage repayments being a financial contribution made by him after the date of separation.
Ground 2 is to the effect that the Judge failed to give Mr N credit to reflect Ms V’s sole occupation of the property after separation to the exclusion of Mr N. Mr N submitted that, having paid all of the mortgage repayments since the parties’ separation in June 2004, he should be entitled to a greater share of the property. He asserted that the mortgage payments are a substantial financial contribution which increased the value of the underlying equity in the property.
Mr N relied on Ms V’s refusal to contribute to the mortgage despite being requested to do so by letter dated 1 November 2006. Mr N maintained that the Judge was fully aware of the letter of 1 November 2006 as it was handed to him by Ms V. The Judge read the letter and observed that it was a request by Mr N for Ms V to contribute to the mortgage as a co-owner.
Mr N maintained that he had no choice but to continue to pay the mortgage repayments following separation or lose his credit rating if he defaulted. He asserted that due to the passage of time it would be unjust to sell the property and divide it equally.
Mr N disputed the Judge’s finding that he had agreed with Ms V that she could stay in the Greenhill property rent-free after he left in 2004 up until 2011. He referred to the Judge’s finding that the agreement continued until “at least 2011”, yet the Judge did not go on to consider the period after 2011 and made no adjustment on account of Ms V’s continued rent-free occupation.
Appeal ground 3 is to the effect that the Judge erred in not finding that Ms V’s sole occupation of the property after separation and her failure to pay rent throughout that period was a relevant matter to be considered under s 11(1)(d) of the Act. Mr N contended that Ms V has enjoyed 13 years of rent‑free accommodation while the property increased in value. He submitted that her payments of council rates, utilities, insurance, and maintenance costs in respect of the property have had no effect on the value of the property. Mr N also submitted that Ms V’s refusal to leave the property compromised his entitlement as co‑owner to equally enjoy the property. He maintained that he did not leave the property voluntarily, and that he was forced to live in his shop for 18 months, while Ms V enjoyed the benefits of living in the property rent-free. Mr N submitted that these factors are relevant matters which the Court ought to have considered in determining the division of property.
The fourth ground of appeal is that the Judge erred in failing to make an adjustment for an “occupation fee”. Mr N argued that he is entitled to have an occupation fee deducted from Ms V’s share of the proceeds of the sale of the property given her sole, rent-free occupation of the property. Mr N denied any agreement to the effect that Ms V could live in the property rent‑free. In support of his contention, Mr N relied on the letter dated 1 November 2006, earlier referred to, in which he asked Ms V to vacate the property if she was not going to pay any mortgage or rent. He further submitted that if there was an agreement that Ms V could live in the property, there was no evidence which supported the Judge’s conclusion that Ms V could do so “rent-free”.
Ms V’s submissions
Ms V submitted that the Judge had regard to each party’s contributions as required by s 11 of the Act.
Relying on Arnold v Dalton,[14] Ms V contended that where one partner in a relationship is working and the other stays at home in a homemaker role, the correct starting point for the application of s 11(1)(b) of the Act is that the contributions of both partners are regarded as equal.
[14] (2002) 84 SASR 482 at [58].
She relied on the facts: that during her pregnancy, she worked in the Deli‑mart owned by Mr N for about five months without receiving a wage; that from the time of her pregnancy until the end of the de facto relationship, with the agreement and encouragement of the appellant, she stayed at home and cared for S while attending to the bulk of the domestic duties around the home; and that she gave up her studies and occupation to do so.
Ms V did not dispute that Mr N has made all mortgage repayments since separation. However, she submitted that throughout that period she paid council rates, utilities, insurance, and maintenance costs, including the repair of a pump, in respect of the property.
In light of these matters and in reliance on Arnold, Ms V submitted that the trial Judge was correct in finding that her substantial but non‑financial contributions,[15] including parenting and homemaking contributions, could fairly be regarded as of equal value to Mr N’s financial contributions.[16]
[15] [2016] SADC 20 at [52] and [55].
[16] [2016] SADC 20 at [65], [77].
Ms V submitted that none of the appeal grounds had been made out as Mr N had not demonstrated any error of principle made by the trial Judge who had specific regard to Mr N’s mortgage repayments and Ms V’s occupation of the property after the parties had separated.
Ms V submitted that during the second period of time, she continued to care full time for S. In this sense, her occupation of the property not only benefitted her, but also Mr N and S. Ms V also relied on the Judge’s finding that an agreement existed between the parties to the effect that she should live at the property rent-free in order for S to continue attending a particular school.[17]
[17] [2016] SADC 20 at [62].
Ms V referred to the decision in Arnold, where the Court said that s 11(1)(b) of the Act requires an assessment of the financial and other contributions of the partners to the maintenance of each other and of their children up to the time that the order is made. The Court said:[18]
There is nothing to suggest that the financial contribution by way of maintenance of or addition to property made by one partner after the relationship has ceased should not be brought into account. The same should apply to contributions (including homemaking and parenting contributions) made during such a period. Furthermore, the definition of “de facto partner” contained in s 3 of the Act includes “a person who has lived in a de facto relationship”. For the purposes of the Act, the former de facto partners remain de facto partners until the time that an order is made. So construed, s 11(1)(b) would include reference to contributions made after cohabitation has ceased.
[18] (2002) 84 SASR 482 at [50].
With reference to appeal ground 4, Ms V submitted that considerations of equity, and the law concerning when an occupation fee might arise, have no role to play in the division of property under the Act. Rather, matters concerning sole residence by one co-owner and contribution to the mortgage by the non-resident co-owner are relevant facts to be taken into account in the assessment process under the Act. Ms V argued that the Judge had properly analysed the facts, including the rent-free period and Mr N making all of the financial contributions, and had found there to be no sound reason to disturb the registered title.[19]
[19] [2016] SADC 20 at [59].
Ms V accepted that the Judge did not specifically set out each element that he took into account but the judgment nevertheless sufficiently identified the facts found which supported his Honour’s findings. While the Judge did not use the language of occupation rent or occupation fee before concluding that there should be no adjustment[20] it is plainly a factual matter that he had taken into account in that he found Ms V to be solely in occupation without making financial contributions.
[20] [2016] SADC 20 at [59].
Consideration
The parties are in general agreement as to the nature of their respective financial and non-financial contributions. There is no challenge to the Judge’s findings in this respect. Ms V agreed that there had been no substantive change in the parties’ positions during the period between trial and judgment. Mr N continued to make the mortgage repayments and Ms V continued to pay the rates and utilities until the date of judgment. The debate concerns what conclusion, as to the proper adjustment, if any, with respect to the joint legal ownership of the Greenhill property, should follow.
However, there is one major factual dispute. Of particular significance to the parties in their submissions before the Judge and in this Court was the dispute over whether there had been an agreement permitting Ms V to live in the property rent free and, if so, as to its relevance, if any.
The Judge accepted Ms V’s evidence that there was an agreement that she could stay in the Greenhill property rent-free following separation so that S could go to a particular primary school, at least up until 2011. However, the Judge did not explain why he accepted her evidence and why he rejected Mr N’s evidence that there was no such agreement.
The evidence given by Ms V (as opposed to her submission) was equivocal as to whether the question of paying rent or not was even mentioned at the time of any arrangement that may have been arrived at for her to remain in the property. Further, on no reading of the parties’ evidence was any time frame agreed to. At best the parties had an understanding that Ms V would continue to reside in the property whilst S attended the school. However, this was not a legally binding arrangement and could have been departed from by Mr N at any time. There is evidence that, in a letter dated 1 November 2006, Mr N did in fact ask Ms V to contribute to the mortgage payments. In any event, and whatever the arrangement, the fact remains that Ms V and S occupied the premises from June 2004 until 2011 after which Ms V has continued to occupy the property alone, on a rent free basis and without Ms V making any contribution to the mortgage.
Nevertheless, it would appear from the structure of the Judge’s reasons that this “agreement” played little or no role in his Honour’s decision to make no adjustment to the parties’ equal legal interests in the Greenhill property. The Judge first summarised the parties’ financial and non-financial contributions[21] and referred to relevant authority[22] to the effect that:
[E]quality will be the measure, other things being equal, only if the quality of the respective contributions … each judged by reference to their own sphere, are equal …
His Honour then concluded as follows:[23]
In respect of [the Greenhill property] there is no sound reason to attach greater value to [Mr N’s] financial contribution to that of [Ms V’s] non-financial contribution. In my view, it is just and equitable that there be no adjustment of either party’s one half share interest …
[21] [2016] SADC 20 at [51]-[55].
[22] Mallet v Mallet (1984) 156 CLR 605 at 636 (Wilson J).
[23] V v N [2016] SADC 20 at [59].
It was only after arriving at this conclusion, that his Honour went on to expressly consider Ms V’s occupancy and the absence of any financial contribution. He did so in the context of whether or not Mr N was entitled to an occupancy fee. As earlier referred to, his Honour declined to so order, in reliance on W v D[24] and on the basis of the “agreement” his Honour had found to exist.[25]
[24] (2012) 115 SASR 61.
[25] [2016] SADC 20 at [60]-[62].
Of more significance is the fact that the extent to which, if at all, the Judge took account of the underlying facts of Ms V’s 12 years or more of occupancy whilst Mr N met all financial obligations is also not made clear in the reasons. This is notwithstanding that the following exchanges between Mr N and the Judge and Ms V and the Judge during Mr N’s closing address suggest that the Judge was alive to the potential relevance of the circumstances of Ms V’s occupation.
Mr N said that after he left in 2004 he asked Ms V:
… to evacuate (sic) the property if she is not going to pay the mortgage or rent and she refused and since 2004 she is occupying the property till this moment. She had never paid any contribution to the mortgage. She never paid me any rent.
The Judge responded “That is a very important factor”. Mr N later submitted:
I feel like it is fair that the money, all the money I paid after 2004, till now, and the mortgage, I be reimbursed this money. This is my investment. I been paying, 10 years paying a mortgage and [Ms V] enjoying living in a house full of furniture.
The Judge asked Mr N whether it was his case that he should take into account that Ms V had been living in the house without contributing to the mortgage:
MR [N]:Contributing or paying rent.
HIS HONOUR: Or paying rent and this is a fact I should take into account?
MR [N]:That’s correct.
The Judge then gave this assurance, “Well, I can tell you now that that is a relevant consideration, and it is a factor that I would take into account”. At the end of this exchange the Judge said to Ms V:
What is relevant is that you had been living in that house rent-free since the date of separation. Now that is a factor that I must take into account, if I were to make an adjustment of your property interests.
However, and notwithstanding these exchanges, the Judge does not identify in his reasons prior to his conclusion that there should be no adjustment[26] whether Ms V’s occupation was, or the extent to which it was, a relevant factor.
[26] [2016] SADC 20 at [59].
We do not accept the submission made on behalf of the respondent that his Honour did so earlier[27] when he found that Ms V continued to live in the property and noted that Mr N paid all mortgage repayments, before making a finding about Ms V’s financial contributions.
[27] [2016] SADC 20 at [25] and [27].
In our view, it is unnecessary to decide whether the circumstances were such as to allow Mr N as one co-owner to claim an occupation fee from Ms V as the other co-owner as a matter of common law.[28] Whilst the existence of an agreement such as that propounded by Ms V might have had a bearing on any entitlement at common law in Mr N to claim rent or an occupation fee, it has no relevance to the question of a just and equitable division of the property.
[28] Other forms of remedy or relief are preserved by s 16 of the Act. However, this Court’s decision in W v D [2012] 115 SASR 61 would suggest that an occupation fee was not available on the facts here.
However, the fact that Ms V has been able to occupy the property rent free and without otherwise contributing to the mortgage is relevant to any division.[29] Section 11(1)(a)(ii) of the Act specifically provides that the financial contributions made directly or indirectly by the de facto partners to the financial resources of either partner, should be taken into account. The occupation by Ms V without her making any contribution, by way of payment of rent or otherwise, to the mortgage repayments on the jointly owned property, is to be regarded as a substantial financial contribution by Mr N to the financial resources of Ms V.
[29] Cf; Hogg v Roberts (2003) 87 SASR 248 at [53] where Doyle CJ made an adjustment in favour of Mr Roberts on account of Mr Hogg’s sole occupation of the house.
Nevertheless, provided the fact of occupancy without contribution is properly taken into account in the division of property, no occasion for an occupation fee, in addition, can arise if double counting is to be avoided. However, given the lack of clarity in the Judge’s reasons in this respect, we are not satisfied that the s 10(1) order made with respect to the Greenhill property is necessarily fair and equitable.
In any event, the decision as to a just and equitable property division, whilst not discretionary in the House v the King[30] sense, does require an evaluative judgment. Even if the Judge’s reasons do not disclose any error of principle, as Doyle CJ observed in Hogg v Roberts:[31]
The only way to test the judge’s approach is to consider for myself what appears to be an appropriate order and then to see how that compares with the judge’s order.
[30] (1936) 55 CLR 499.
[31] (2003) 87 SASR 248 at [50].
What is the appropriate order for the division of the Greenhill property?
In turning to consider the appropriate order regarding the Greenhill property, we emphasise that, because there is very little evidence as to the value, income, expenditure, contributions made and benefits received, this is one of those matters envisaged by Doyle CJ in Hogg where a broader approach to the division of property is necessary.
In Arnold, Bleby J (with whom Doyle CJ and Besanko J agreed) considered the appropriate starting point for the application of s 11(1)(b) of the Act was to view the contributions of the partner who earns an income and the other who stays at home in a homemaker role as equal in value.[32] In this respect, we understand Bleby J to be saying that, in appropriate circumstances, it will be proper to regard the value attached to the contribution of the homemaking partner as no less than that attached to the contribution of the income earning partner. Furthermore, Bleby J qualified his observation in the following way.[33]
The principle of equal value of homemaking contributions to financial contributions assumes, as I have said, a continuing family unit living in the same house, and the relative contributions being made to the totality of the domestic requirements, including those of the employed partner.
[32] (2002) 84 SASR 482 at [58].
[33] (2002) 84 SASR 482 at [66].

The High Court established in Mallet v Mallet,[34] in relation to applications under s 79 of the Family Law Act 1975 (Cth), that there is no presumption of equality as a starting point in respect of contributions and that each matter is to be determined upon consideration of its particular circumstances. As Doyle CJ stated in Hogg,[35] there is no reason to approach an application for adjustment of property on the basis of an assumption that an equal division is appropriate unless there is good reason to depart from that position.
[34] (1984) 156 CLR 605 at [4].
[35] (2003) 87 SASR 248 at [15].
With the limited information available, based on the estimates given by Ms V and Mr N, the Greenhill property had a value in the order of $600,000 as at the date of trial. Mr N has paid in total approximately $170,000 in respect of the ANZ loans. A document was provided at the request of this Court following the hearing of the appeal comprising a schedule of the home loan payments compiled from the case book materials (“the schedule”). The schedule shows that the total amount of principle and interest payments for the loans dating from 20 November 2001 to 18 June 2016 is $170,875. The first ANZ loan was taken out in August 2000 and the second in November 2001. The schedule does not detail any payments made between August 2000 and 20 November 2001.
According to Mr N, by the time of trial the amount owing under the ANZ loans had been reduced to about $37,000. Mr N told this Court that he stopped paying the mortgage repayments after the delivery of the judgment. It is clear that Mr N made very substantial capital contributions to the purchase of the Greenhill land and the cost of the construction of the house in addition to the reduction in principle effected by his mortgage payments.
In order to decide upon the appropriate order it is convenient to consider the contributions made by Mr N and Ms V during each of the identified three periods.
The first period (July 1999 to June 2004)
The land was bought in 1999 for $32,500. Mr N contributed $15,000 to the purchase price and $4,000 was borrowed from Ms V’s father which Mr N repaid. The balance of the purchase price was funded by a loan obtained and repaid by Mr N from his earnings.
The parties jointly borrowed monies from ANZ in the sum of $132,000 to fund the construction of a house. During this period Mr N paid all instalments on the ANZ mortgage which amounted to $14,365.90 for this period (according to the schedule). He also made capital contributions to the construction of the house from his Deli-mart earnings. The evidence does not permit this component of capital contribution to be quantified. Mr N also contributed the proceeds of sale of $52,000 from his former matrimonial home to reduction of the mortgage.
In short, Mr N made very substantial capital contributions towards the Greenhill property in addition to servicing the mortgages from his regular income. The Judge found that Mr N also paid all living expenses during the first period but that Ms V’s non-financial contribution during the relationship to homemaking and parenting was substantial and greater than Mr N’s non‑financial contribution.
In our view, if consideration were to be given to a property division order with respect to this first period alone, an adjustment away from the parties’ equal legal interests and in favour of Mr N would have been warranted.
The second period (June 2004 to mid-2011)
During the second period, Mr N continued to pay all mortgage instalments of principle and interest totalling just over $90,000. Ms V continued to live in the Greenhill property, but alone and without paying rent. However, she was the primary carer of S. She ceased to make homemaking or other non-financial contributions vis-à-vis Mr N.
Ms V’s non-financial contributions in providing a home for S continued during this period while S was living with her. An allowance needs to be made for this parenting contribution. Further, as the Court said in Hogg, such matters must be recognised in a substantial way. This is difficult to assess, because it appears that parenting payments made to Ms V would have made a significant contribution to Ms V’s capacity to support S.
Ms V also commenced paying rates, utilities, insurance, and some amount by way of house maintenance during this second period. However, the only evidence regarding the amounts paid by Ms V was her oral evidence that she paid about $1,600 per annum by way of council rates:[36]
A.I have also been paying – well I have been paying the council rates for all – during that entire period that you left.
Q.And you paying electricity and phone calls.
A.Yes, I am paying – from 2004 I have paid every council rates.
HIS HONOUR
Q.What are the council rates.
A.About 1600 each year and all the electricity and everything else.
According to Mr N, and unchallenged by Ms V, there were no water rates because the Greenhill property was serviced by a pump.
[36] T80-81.
For the sake of the exercise, a very rough estimate of the amounts paid annually by Ms V by way of rates, utilities and insurance, is $4,000, amounting to say $28,000 during the second period.
The non-financial contributions concerning S during this period must be seen as substantial. In our view, having regard to the financial and non-financial contributions made by Mr N and Ms V, no further adjustment on account of either party’s contributions is called for with respect to this period.
The third period (mid-2011 to judgment in 2016)
During the third period, Mr N paid $60,000 by way of instalments of principle and interest under the ANZ mortgage and provided a home for S in his Salisbury home. Ms V continued to live in the Greenhill property. Whilst she did not pay rent she continued to pay council rates, utilities, insurance, and some amount by way of maintenance. Again, based on the earlier rough calculation that these outgoings cost Ms V approximately $4,000 per annum, she paid say $20,000 for these items over the third period.
An adjustment should be made in favour of Mr N on account of Ms V’s sole occupancy (that is, without S) of the Greenhill property during the third period. Ms V’s non-financial contribution during this time was minimal. In positing this adjustment, we bear in mind that Ms V is a joint owner of the Greenhill property and if there had been appropriate evidence we would have allowed for the value of her occupation of the property at an amount equal to half rental value.[37]
[37] Hogg v Roberts (2003) 87 SASR 248 at [43].
A further consideration in favour of Mr N is the fact that he continued to service the ANZ mortgage in circumstances where only Ms V was to benefit from occupancy.
Conclusion
In all of the circumstances and taking a broad, pragmatic approach, we would make an order in favour of Mr N such that he is entitled to 60 per cent of the net proceeds of sale of the Greenhill property. This represents a sufficient departure from the Judge’s determination to indicate that the evaluative judgment exercise undertaken by his Honour miscarried.
We would allow the appeal, set aside order 1 made by the Judge on 14 February 2017 and substitute an order that Mr N receive 60 per cent and Ms V 40 per cent of the net proceeds of sale after discharge of the ANZ mortgage and allowing for costs of sale.
Like the Judge, we would allow the parties some time, until 31 January 2018, should either of them wish to purchase the other party’s adjusted interest in the Greenhill property at a price agreed between them or, in the absence of such an agreement, by a licensed land valuer. If the parties are unable to agree upon a licensed land valuer for this purpose, such is to be nominated by the President of the Real Estate Institute of South Australia.
Should neither party have purchased the other party’s interest by 31 January 2018, the Greenhill property is to be sold and the net proceeds distributed in a manner consistent with these reasons.
We would remit the matter to a Master of the District Court to receive further submissions insofar as necessary and in order to make orders to facilitate the process of sale and distribution of the net proceeds.
The encumbrances
In addition to the ANZ mortgage, the Greenhill property Certificate of Title (Volume 5463 Folio 176) has endorsed upon it a charge against Ms V’s interest in the property in favour of the Legal Services Commission of South Australia (“the Commission”) pursuant to s 18A of the Legal Services Commission Act 1977 (SA).The Certificate of Title is also endorsed with:
(i)a caveat lodged by Mr N’s former solicitor Brian Patrick Black, in respect of Mr N’s interest in the Greenhill property; and
(ii)a charge made pursuant to an order of the Magistrates Court on 28 November 2013 charging Mr N’s interest in the Greenhill property with the payment of a judgment debt in respect of his failure to pay legal fees to Brian Patrick Black.
Mr N and Ms V are to be jointly responsible for the discharge of the ANZ mortgage from the proceeds of sale together with any other necessary costs of sale including any valuation fee, agent’s commission and conveyancing costs incurred. However, Ms V should bear sole responsibility for the legal fees incurred by her which are the subject of the Commission’s charge endorsed on the Certificate of Title. Likewise, Mr N should bear sole responsibility for the legal fees incurred by him the subject of his former solicitor’s charge endorsed on the Certificate of Title.
We would make the following orders:
1.Appeal allowed.
2.Order 1 made in the District Court on 14 February 2017 is set aside.
3.In lieu thereof, the Greenhill property is to be disposed of in accordance with these reasons and the parties’ legal interests in the Greenhill property are to be adjusted such that Mr N is entitled to 60 per cent and Ms V to 40 per cent of the net sale proceeds after allowing for the discharge of the ANZ mortgage and costs of sale.
4.The matter is remitted to a Master of the District Court to make such further orders as are necessary so as to conform to these reasons.
5.Liberty to either party to apply to a Master of the District Court on short but reasonable notice to the other side.
HINTON J.
I have had the benefit of reading the joint reasons of Nicholson and Bampton JJ. I would allow the appeal for the reasons that their Honours give and agree with the orders they propose.