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;

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading N, A-B v v, Am

Details

AGLC: N, A-B v v, Am [2017] SASCFC 147
Case: [2017] SASCFC 147
Decision Date: 8 November 2017

CaseChat Overview and Summary

The parties, Mr N and Ms V, were in a de facto relationship from 1998 to 2004 and had one child together. Following their separation, Ms V initiated proceedings in the District Court seeking an adjustment of property interests under the *De Facto Relationships Act 1996* (SA). A District Court Judge declared the de facto relationship and ordered no adjustment to the parties' equal half shares in the Greenhill property, divided the contents of the property equally, and made no adjustment regarding their motor vehicles. Mr N appealed the order concerning the Greenhill property, arguing the Judge failed to adequately consider his financial contributions post-separation and to credit him for Ms V's sole occupation of the property.

The central legal issues before the Full Court were whether the trial Judge erred in not giving sufficient weight to Mr N's financial contributions after the date of separation, whether credit should have been given to reflect Ms V's sole occupation of the Greenhill property post-separation, and consequently, whether Mr N was entitled to a greater share of that property. The appeal also touched upon the Judge's finding that there was an agreement for Ms V to reside in the property rent-free, and the relevance of this to the property adjustment.

The Full Court noted that while the trial Judge did not explicitly use the terms "occupation rent" or "occupation fee," the reasoning indicated that the sole occupation of the property by Ms V without financial contribution was a factual matter taken into account. However, the Court found that the trial Judge's acceptance of Ms V's evidence regarding a rent-free occupation agreement was not adequately explained, particularly in light of conflicting evidence from Mr N and the equivocal nature of Ms V's own testimony on the matter. Despite this, the Court observed that this "agreement" appeared to play a minimal role in the Judge's ultimate decision for no adjustment. The Judge had summarised the parties' financial and non-financial contributions and applied the principle that equality of contribution would lead to an equal division of property, concluding that there was no sound reason to attach greater value to Mr N's financial contribution over Ms V's non-financial contribution. The Court acknowledged the difficulties faced by the trial Judge due to the parties being self-represented and the resulting lack of detailed evidence regarding asset values.

The Full Court allowed the appeal, setting aside the order for no adjustment of the parties' interests in the Greenhill property. The matter was remitted to the District Court for redetermination, with directions to consider the period of Ms V's sole occupation of the property post-separation and to make appropriate adjustments to the parties' respective shares in the Greenhill property.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

NICHOLSON AND BAMPTON JJ

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.

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON AND BAMPTON JJ

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].