NUMAN & BRIGHTON

[2014] FCCA 837

FEDERAL CIRCUIT COURT OF AUSTRALIA

NUMAN & BRIGHTON [2014] FCCA 837

Catchwords:
FAMILY LAW – De Facto property orders – contributions – where the de facto husband’s contributions are said to have diminished the value of the property – whether it is just and equitable in all the circumstances to alter the property interests between the parties.

Legislation:  
Family Law Act 1975, ss.90SF, 90SM

Stanford & Stanford (2012) 293 ALR 70
Bevan & Bevan [2013] FAMCAFC 116

Applicant: MR NUMAN

Respondent: MS BRIGHTON

File Number: DGC 3109 of 2012

Judgment of: Judge Small

Hearing dates: 3 & 4 February 2014

Date of Last Submission: 4 February 2014

Delivered at: Melbourne

Delivered on: 30 April 2014

REPRESENTATION

Counsel for the Applicant: Mr Serra

Solicitors for the Applicant: Remington Wright & Co

Counsel for the Respondents: Mr A. Combes

Solicitors for the Respondents: Frid & Associates

ORDERS

1. The Court not being satisfied pursuant to s.90SM(3) of the Family Law Act 1975 that it is just and equitable in all the circumstances to make orders altering the property interests between the parties, the Application filed 5 October 2012 is hereby dismissed.

2. The Applicant shall forthwith do all such acts and things and sign all such documents as may be necessary to remove any caveat he has placed or caused to be placed over any real property registered in the name of the Respondent.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT DANDENONG

DGC 3109 of 2012

MR NUMAN

Applicant

And

MS BRIGHTON

Respondent

REASONS FOR JUDGMENT

Introduction

1. Mr Numan (“Mr Numan” or “the Applicant”) and Ms Brighton (“Ms Brighton” or “the Respondent”) were engaged in a de facto relationship for eight years between 2002 and 2010.

2. Both parties have adult children from previous relationships and there are no children of this relationship. Three of Ms Brighton’s children lived with the parties at varying times during the relationship.

3. Ms Brighton owns two properties: one at Property B (“the Property B property”) which is her main residence and one at Property W (“the Property W property”) which is a holiday property. She owned both of those properties when the parties began living together.

4. The parties lived in the Property B property throughout the relationship, apart from an eight to twelve month period when they lived in the Property W property. The Property W property was used primarily as a holiday venue during the relationship.

5. Mr Numan seeks a property settlement by way of a cash payment under s.90SM of the Family Law Act 1975 (“the Act”) claiming that he contributed to the maintenance and improvement of the two properties.

6. Ms Brighton does not want to give Mr Numan anything, claiming that any contributions he did make did not result in any improvement to the properties, and that throughout the relationship he spent what money he earned on his hobby of restoring and racing cars, on child support for his children and on alcohol.

7. The issues in this case are as follows:

   ·Is it just and equitable in all the circumstances to alter the current property interests in the property of the parties, and in particular, in the Property B and Property W properties?

   ·If it would be just and equitable to alter the current interests as a matter of law, were Mr Numan’s contributions to the maintenance and improvement of the two properties sufficient to warrant an actual alteration in the property interests?

   ·If Mr Numan’s contributions were sufficient to warrant an alteration in the property interests, do the factors set out in s.90SF(3) of the Act lead to a finding that an adjustment ought to be made to the interests based on contributions?

   ·What orders, if any, should the court make altering the current property interests of the parties?

The facts and circumstances of this case

1. The Applicant, Mr Numan, is 57 years old and the Respondent, Ms Brighton, is 58. The parties met in 2002 and began living together at the Property B property.

2. Ms Brighton had bought the Property B property with her first husband in 1979 for $75,000 and had obtained sole title to it as part of her property settlement with him in 1988. Ms Brighton has lived in the Property B property with various of her children since 1979.  Three of those children lived with the parties at some time during the relationship.

3. In 1995 Ms Brighton mortgaged the Property B property to pay for renovations to that property. At the time when Mr Numan moved into the Property B property in 2002, the mortgage loan stood at about $90,000.

4. During the relationship Ms Brighton contributed lump sum payments to the mortgage from a redundancy payment in 2006 and from a damages claim following a car accident in 2008. She was also able to salary-sacrifice from her pre-tax salary to the mortgage.

5. In 2003, in the first year of her relationship with Mr Numan, Ms Brighton agreed to increase the mortgage on the Property B property to $120,000 to pay for renovations at the Property W property. Those renovations remain unfinished and Mr Numan’s evidence at trial was that the monies borrowed for that purpose were largely spent on lifestyle expenses and not on the renovations.

6. In 2004, Mr Numan declared bankruptcy as a result of being unable to pay a $100,000 debt incurred before the relationship began, and remained bankrupt for the next three years. His income for those years was minimal according to the tax returns he tendered at trial.

7. During the relationship the mortgage loan secured by the Property B property rose from $90,000 to $162,366[1] and it now stands at about $179,000. It is the evidence of both parties that while some of those monies were spent on a car and some renovations, much of it was spent on lifestyle expenses.

   [1] A further extension on the mortgage loan was obtained in 2010.

8. Unfortunately there is no evidence as to the value of the Property B property when the parties began living together, but it is agreed that it was worth $325,000 at the time of trial.

9. Mr Numan claims that when he was working, his wages went into an account in Ms Brighton’s name from which mortgage payments were made and the parties drew money for household expenses as well as their own expenses.

10. Based on that evidence, and the evidence of his work on the renovations to the property, Mr Numan claims contributions to the maintenance and/or improvement of the Property B property.

11. Ms Brighton had purchased the Property W property in 1992 and that property was unencumbered when the parties began living together.

12. Over the period of the relationship, major alterations were carried out at the Property W property and some minor renovations were carried out at the Property B property.

13. The value of those alterations and renovations and who contributed to them are major issues in dispute in these proceedings.

14. It is common ground that the building on the Property W property is currently in a state of disrepair.

15. The Property W property has been valued for the purposes of these proceedings at $205,000 for the land, and $20,000 for the building.

16. Mr Numan claims that he added to the value of the Property W and Property B properties by carrying out the renovations but Ms Brighton says that he “botched” the renovations at the Property W property and left the properties in a much worse state than when he began.

17. Ms Brighton claims that Mr Numan drank heavily and was violent during the relationship. Those claims are supported by the Affidavit evidence of three of her children and by the oral evidence of two of her sons who were cross-examined at trial.

18. Mr Numan denies that allegation and claims that damage done to the Property B property was the fault of Ms Brighton’s children. In relation to the Property W property, he says that the work he carried out was of good standard although he concedes that some tasks remain to be completed.

19. Mr Numan is currently employed and earns $53,378 per year. He deposes that he earned an income in each of the years of the relationship ranging from $6,378 to $44,384 per year.

20. Ms Brighton is currently in receipt of Sickness Benefits and has been unable to work since March 2012, although she did work consistently throughout the relationship, at times in more than one job.

21. It was her evidence at trial that she has applied for a Disability Support Pension as a result of physical injuries sustained when she was attacked at her workplace in 2011 and psychological conditions which result from physical and sexual abuse she sustained as a child and adolescent.

Issue 1: Is it just and equitable in all the circumstances to alter the parties’ current property interests in property, and in particular, in the Property B and Property W properties?

The Law

1. The law about de facto relationship property settlements is found in Part VIIIAB of the Family Law Act 1975 (“the Act”). More particularly, it is to be found in s.90SM, and, by reference in s.90SM(4), in s.90SF(3).

2. Section 90SM(3) states that a Court must not make an order altering the property interests of parties to a de facto relationship unless it is just and equitable in all the circumstances to do so.

3. Section 90SM(3) is in identical terms to s.79(2) of the Act, which deals with property settlements between married couples.

4. The “fundamental principles” a Court must follow under s.79(2) were set out by the High Court in Stanford & Stanford (2012) 293 ALR 70.

5. Those principles are:

   ·The court must consider “whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property”[2].

   ·A trial judge must not assume that the parties’ rights to and/or interests in (relationship) property are or should be different from those that currently exist.

   ·A trial judge should not assume that one or other party has the right to have the property divided between them on the basis of the parties’ contributions and the matters set out in (S.90SF(3)) of the Act alone.

   [2] Stanford paragraph 37.

6. Therefore my first task is to identify the existing legal and equitable interests in the parties’ property.

The Evidence

Real Property

1. No real property was bought or sold during the relationship and the major assets, the Property B and Property W properties, have been owned by Ms Brighton throughout.

2. The mortgage over the Property B property has also been registered in the name of Ms Brighton alone throughout and she remains liable for the loan it secures.

3. It is therefore clear that Mr Numan has no existing legal interest in the Property B or Property W properties.

4. He has not asserted any equitable interest in those properties. His claim is based on s.90SM of the Act.

Other property

1. In their Affidavit material and Outline of Case Documents, the parties set out their other current property as follows:

   Mr Numan’s property     

   Transporter vehicle  $4,000

   Ford (omitted)  $2,500

   Holden (omitted)                $4,000

   Mitsubishi (omitted)  $  600

   2 Holden (omitted) vehicles  nil

   Household contents  $1,000  

Ms Brighton’s property

The Property B property  $325,000

The Property W property  $225,000

Hyundai (omitted) motor vehicle              $  12,000

Household contents  $   5,000

Property B property mortgage                   ($179,000)

1. In addition to the property set out above, there are several other pieces of property the parties ask the court to take into account.

2. The evidence about that property is found in the Affidavits of the parties and in their oral evidence given at trial.

3. Mr Numan wants to “add back” to the pool $9,900 for the Holden (omitted) which Ms Brighton says she purchased in 2008 using a lump sum child support payment received from her former husband[3].  

   [3] Affidavit of the Respondent sworn 16 November 2012 paragraph 7.

4. It is her evidence that Mr Numan drove the vehicle during and for several months after the relationship and that he incurred significant fines while doing so, those fines being left to her to pay. She retrieved the vehicle after separation and transferred it to her son.

5. The vehicle having been purchased from funds unrelated to this relationship, I therefore do not consider that it forms part of the property pool.

6. Mr Numan also claims an “add-back” of $3,500 for two Holden (omitted) vehicles which he says were irreparably damaged by Ms Brighton after separation. He provides photographs of the vehicles[4], which show broken windows and some damage to the bodies, but there is no evidence that the damage was caused by Ms Brighton. The vehicles were stored at the Property W property in the open air at the time of the damage and Ms Brighton denies that the damage was caused by her. In those circumstances I can make no finding in relation to that damage.

   [4] Affidavit of the Applicant sworn 29 January 2014 annexure “N8”.

7. The vehicles in question were 1976 and 1978 models and unregistered[5]. The parties separated in 2010, when the vehicles were more than 30 years old. Their resale value, no evidence of which has been produced beyond Mr Numan’s bald assertion, is said to be $3,500.  That would be a generous valuation indeed. Mr Numan claims that he had restored the vehicles but there is no evidence bar his assertion as to their value. It is common ground that their current value is nil. I am not satisfied that their previous stated value should be considered as part of the pool of assets to be distributed between the parties.

   [5] Affidavit of the Applicant sworn 29 January 2014 paragraph 2(o) and (w).

8. Ms Brighton values her Hyundai (omitted) motor vehicle at $10,000. Mr Numan values it at $15,000. Mr Numan deposes to having valued that vehicle according to the RedBook on line valuation website and the evidence he produces by way of a printout attached to an Affidavit is that such a vehicle is worth $13,300 to $15,200. Ms Brighton gives no source for her valuation but deposes that it had been involved in an accident and that she had been unable to afford to repair it[6], which would reduce its value somewhat.

   [6] Affidavit of the Respondent sworn 16 November 2012 paragraph 8.

9. I therefore value the Hyundai (omitted), which belongs to Ms Brighton, at about $12,000.

10. Mr Numan wishes the value of 350 (omitted) shares to be “added back” to the pool of assets and attributed to Ms Brighton. He provides no evidence about those shares save for his valuation of them.

11. Ms Brighton provides no Affidavit evidence in relation to the (omitted) shares save that she declares them in her Financial Statement sworn 16 November 2012, but omits them from her Financial Statement sworn 23 August 2013.  

12. At trial, it was her evidence that she had acquired the shares “over 30 years” ago, well before the relationship with Mr Numan began, that she had not added to them, that she retains them now, and that she receives a small income from them.

13. In those circumstances it is difficult to see how they can form part of the property pool to be divided between the parties.

14. There is a Holden (omitted) which has been valued at $4,000 by a single expert. That current value is not questioned.  The ownership of the vehicle, however, and therefore its possible inclusion in the property pool, is a matter of dispute.

15. Both parties agree that there was also a Holden (omitted) vehicle which had been restored and raced during the relationship. Ms Brighton wants the sum of $20,000 “added back” to the property pool to account for that vehicle.

16. Mr Numan’s evidence[7] is that when the parties began living together he had possession of a (omitted) racing Holden (omitted) which had an engine, and a (omitted) Holden (omitted) body that did not have an engine. He says those vehicles had been acquired by him prior to the relationship but that by the time the relationship began they were owned by his friend Mr K.

    [7] Affidavit of the Applicant sworn 29 January 2014 paragraph 8.

17. He says that the engine, gearbox and other parts of the (omitted) Holden (omitted) had been placed into the (omitted) Holden (omitted) but that neither vehicle had been raced after about 2005. That evidence conflicts with that of Ms Brighton’s sons Mr J and Mr R.

18. The engine, gearbox and other parts were later replaced into the (omitted) Holden (omitted) and it was prepared for sale in 2010. It was Mr Numan’s evidence at trial that the proceeds of sale of the (omitted) Holden (omitted) were placed in Ms Brighton’s account.

19. Mr Numan was cross-examined at some length about the ownership of these vehicles, the quite substantial money he spent on them and others, and their condition at the time of separation. He was adamant that the vehicles belong to Mr K and that they formed part of the repayment of a debt he owed to Mr K.

20. I note that Mr K did not swear an affidavit in support of this contention and that he was not made available to give evidence at trial. When asked about the reason for his absence, Mr Numan could provide none.

21. It was the evidence at trial of Ms Brighton and her sons Mr J and Mr R that Mr Numan engaged in the rebuilding and racing of various motor vehicles throughout the relationship and that he spent large amounts of money and time in doing so. It was their evidence that Mr Numan had always treated the vehicles as his own and they were surprised that he was now saying that they belonged to Mr K.

22. Mr R said in evidence:

    (the cars and racing were) all he ever talked to me and all my friends, bragged as much as he could about that stuff. Seems to me like that’s his whole entire existence is that race car. That’s all he ever cared about.[8]

    [8] Transcript p 122 paragraph 45.

23. On balance, having heard evidence from Mr Numan, Ms Brighton and her two sons, I am satisfied that it was Mr Numan’s hobby throughout the relationship to spend considerable amounts of time and money in rebuilding motor vehicles and racing them.

24. For the purposes of these proceedings I find that the (omitted) Holden (omitted) (or its sale proceeds) and the (omitted) Holden (omitted) are (or were) owned by Mr Numan and that their total value is significantly higher than $4000 and perhaps as high as $15,000. I find that while he owned them at the beginning of the relationship, he spent significant amounts of money and time during the relationship in working on those vehicles and perhaps others. They therefore form part of the property to be distributed between the parties.

25. It is uncontested that the transporter vehicle and the Ford (omitted) motor vehicle are both owned by Mr Numan and their value is agreed at $4,500 and $2,500 respectively.

26. The furniture and chattels in the Property B and Property W properties are currently in the possession of Ms Brighton. Mr Numan says they are worth $10,000 and Ms Brighton says they are worth $5,000.  As there are no independent valuations in relation to them I will value them at $7,500 for the purposes of this judgment. Mr Numan deposes to having $1,000 worth of household contents in his possession.

27. Mr Numan also asked initially that the sum of $69,475 be “added back” to the pool and says that is the amount that Ms Brighton has withdrawn from her superannuation fund in order to support herself since separation. He provides evidence of some of those withdrawals in documents attached to his Affidavit sworn 29 January 2014 but that corroborative evidence does not appear to add up to $69,475. It is common ground that Ms Brighton has no remaining superannuation entitlements, her own evidence[9] being that she had $50,000 in superannuation entitlements at 16 November 2012 and nil at 23 August 2013.

    [9] Financial Statements of the Respondent sworn 16 November 2012 and 23 August 2013.

28. However, at trial, his counsel submitted that neither party’s superannuation should be included in the pool.

1. As the current entitlements of the parties are minimal, I agree with that submission.

2. Therefore, the entire property available for distribution between the parties is as follows[10]:

   [10] (A) means the Applicant, Mr Numan and (R) means the Respondent, Ms Brighton.

   The Property B property     (R)  $325,000

   The Property W property     (R)  $225,000

   Transporter vehicle         (A)  $   4,000

   Ford (omitted)  (A)  $   2,500

   Holden (omitted) ((omitted))  (A)  $   4,000

   Holden (omitted) ((omitted))  (A)  $ 11,000E

   Mitsubishi (omitted)                (A)  $     600

   2 Holden (omitted) vehicles    (A)  nil

   Hyundai (omitted) motor vehicle      (R)            $  12,000

   Household contents                  (A & R)              $     8,500

   Total assets   $592,600

   Property B property mortgage   ($179,000)

   Nett assets        $413,600

3. I do not assume that there should be any alteration of the current interests of the parties simply because they were in a de facto relationship.

4. Nevertheless, in Stanford[11]the High Court said at paragraph 42:

   In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and the wife.

   [11] Stanford & Stanford (2012) FLC 93-495.

5. In Bevan & Bevan the Full Court said that the circumstances described in the above passage of the Stanford judgment “encapsulate the vast majority of cases”[12].

   [12] Bevan &Bevan [2013]FAMCAFC 116 paragraph 70.

6. While these parties were not married, the principles set out in Stanford and Bevan apply equally to de facto relationships.

7. However, this case is not one of the “vast majority of cases”. It was a later life, second or third relationship for both, it was not a particularly long relationship, the two major assets were owned by Ms Brighton before the relationship began and no real property was acquired during the relationship.

8. In those circumstances, it is my view that Mr Numan would have to show very significant contributions to the property set out above before it would be just and equitable to alter the property interests between the parties.

9. Even if he were able to show contributions, that alone is not enough to show that it is just and equitable in all the circumstances to alter the parties’ property interests under the principles set out in Stanford supra.

Issue 2: Were Mr Numan’s contributions to the maintenance and improvement of the two properties sufficient to warrant an alteration in the property interests?

1. This is perhaps the crux of this case, for if the answer to this question is “No” then the matter goes no further and Mr Numan’s application must fail.

The Law and the Evidence

1. Having determined the property pool available for distribution between the parties, I must now consider the contributions of the parties to that property under s.90SM(4) of the Act, the relevant parts of which I set out here and address in turn:

   Section 90SM(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court must take into account:

   (a)the financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:

   (i)to the acquisition, conservation or improvement of any of the property of the parties to a de facto relationship or either of them; or

   (ii)otherwise in relation to any of that last-mentioned property;

   Whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and

   (b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:

   (i)to the acquisition, conservation or improvement of any of the property of the parties to a de facto relationship or either of them; or

   (ii)otherwise in relation to any of that last-mentioned property;

   Whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them;

   (c)the contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship and any children of the de facto relationship, including any contribution made in the capacity of homemaker or parent.

   (d)the effect of any proposed order upon the earning capacity of either party to the de facto relationship

   (e)the matters referred to in s.90SF(3) in so far as they are relevant

   (f)any other order made under this Act affecting a party to the de facto relationship or a child of the de facto relationship.

   (g)any child support order under the Child Support (Assessment) Act 1989 that a party to the de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the de facto relationship.

2. Section 90SM(4)(a) & (b). All financial and non-financial contributions to the acquisition of the real property were made by Ms Brighton.

3. Mr Numan claims contributions to the maintenance and improvement of both properties.

4. He claims that he built a pergola and worked on the garden at the Property B property as well as performing interior repairs and improvements, such as moving a heater.

5. He also claims contributions to the Property B property by way of financial contributions to the mortgage as his wages, when he was working, were deposited into the same account from which the mortgage payments were made.

6. Ms Brighton says the pergola was already there and all Mr Numan did was put roofing on it. She denies that Mr Numan did more than mow the nature strip occasionally, and says that the heater he moved had to be moved back to its original position at her expense because the flue had not been moved with it, and that the damage to the property requiring the repairs was caused by Mr Numan’s drunken rages.

7. Overall, it was Ms Brighton’s evidence at trial that Mr Numan’s contributions were that “he would half do things and then never fix them. He used it as a form of control.”[13]

   [13] Transcript p 94 paragraph 15.

8. However, when her son Mr J gave evidence he conceded that when he was younger he had caused some damage to the Property B property in the form of broken windows and door and holes in the walls.

9. He did confirm his Affidavit evidence that Mr Numan had been drunk and often violent during the relationship, that he had caused damage to property while drunk, and that the workmanship of those repairs and renovations that he performed was shoddy and needed further work at his mother’s expense after Mr Numan left.

10. His brother Mr R said in evidence that he was a (occupation omitted) and had been called to the Property B home on several occasions to repair damage to walls and to generally calm things down after violent incidents. It was his evidence that as far as he knew, that damage was the result of altercations between Mr Numan and his siblings.

11. He also said that after Mr Numan left the relationship considerable work, including plumbing work, had been carried out at the Property B property to repair work done by Mr Numan.

12. In relation to the Property W property, Mr Numan claims that he renovated the garage to provide a new self-contained unit with its own kitchen and bathroom and that he paid for many of the materials.

13. It is Ms Brighton’s evidence that the work Mr Numan performed on the Property W property was shoddy and that the property was left in a state of disrepair. Photographs tendered at trial certainly appear to support her claim that the workmanship was not of high quality, that major work has been left undone and that the property is for all practical purposes uninhabitable.

14. Mr J’s evidence also supports that claim, as does the evidence of his brother Mr R.

15. I note that the valuation of the Property W property values the buildings at only $20,000, which was described at trial as “almost tear-down” condition by Ms Brighton’s counsel.

16. It is Ms Brighton’s further evidence that while Mr Numan’s wages were deposited into her account when he was working, he did not work consistently throughout the relationship, he withdrew from her account much more than he deposited and spent the money on his own pursuits.  In effect, Ms Brighton says that she supported Mr Numan for much of the relationship.

17. At trial, Mr Numan was cross-examined about his finances during the relationship. He admitted that he was paying $200 per week in child support throughout the relationship, that he was bankrupt for three years, and that he spent some money (albeit not to the extent alleged by Ms Brighton) on his racing cars and on alcohol.

18. It was put to him that all of these expenses would have diminished his capacity to contribute to the mortgage on the Property B property, and I found his responses to be guarded and even somewhat evasive in that regard.

19. For instance, when questioned about his tax returns, which were not lodged until after separation and which show several years of low income, Mr Numan denied that the stated income was low in order to avoid his creditors but conceded that having a low income in that period was convenient for him. He stated that the income was decided by his tax agent and that he (Mr Numan) “just presumed that he (the tax agent) did what he had to do”[14].

    [14] Transcript p 29 paragraph 30.

20. I gained the impression that his taxable income during the years of his bankruptcy had been declared as low because it was “convenient” for him to do so at that time, but that he was now claiming that his income was higher than that provided to the Australian Taxation Office during the period of his bankruptcy and beyond so as to show a greater capacity for contribution to the mortgage.

21. I was not impressed with Mr Numan as a witness in relation to his contributions to the Property B and Property W properties.

22. Section 90SM(4)(c). Ms Brighton alleges that Mr Numan contributed little to the welfare of the family, and that in fact, his contribution in that regard was negative because of his heavy drinking and violence.

23. For instance, it was her evidence that he had assaulted her in 2007, causing significant damage to four of her front teeth. Mr Numan denies responsibility for that damage and says that Ms Brighton “has always had problems with her teeth”[15]. Under cross-examination at trial, Ms Brighton confirmed her evidence in relation to that incident and gave further evidence of violence perpetrated by Mr Numan over many years.

    [15] Transcript p 49 paragraph 15.

24. Mr J’s evidence was that Mr Numan was violent and that he had on one occasion dragged him down the hall by his hair. He said at trial that he had been about ten years old at the time. Again, Mr Numan denies that allegation.

25. Mr R’s evidence was that Mr Numan was a “drunk, abusive man”[16] who had hit his mother.

    [16] Transcript p120 paragraph 30.

26. What is clear from the totality of the evidence is that the atmosphere in the household in which the parties lived during the relationship was volatile and that its members experienced fairly regular violent incidents. On balance, I find that Mr Numan was the source of that volatility and violence.

27. In any event, I can find no clear evidence that Mr Numan made any significant contribution in any positive way, to the welfare of the family during the relationship.

28. Section 90SM(4)(d). I do not propose to make any orders that would have any effect on either party’s earning capacity.

29. Section 90SM(4)(f) & (g) do not apply in this case.

Decision

1. On the basis of all the evidence before me, I do not think on balance that Mr Numan’s contributions to the maintenance and improvement of the Property B and Property W properties are sufficient to warrant making an alteration to the current interests in those properties, or to any other property of the relationship as set out in paragraph 68 of these reasons.

2. I am not satisfied that it is just and equitable in all the circumstances under s.90SM(3) of the Act to make any order altering those interests, and I decline to exercise my discretion to do so.

3. It is relevant to state here that if I had found it just and equitable in all the circumstances to make an order, and that Mr Numan’s contributions were enough to warrant such an order, I would have found that the matters set out in s.90SF(3) of the Act would have operated to outweigh the effect of those contributions.

4. Ms Brighton was injured at work in 2011 and has not worked since March 2012 after being consistently employed for over twenty years. While there is little hard evidence of the degree of that disability, there is evidence that she has been in receipt of Sickness Benefits since that time. She has no superannuation entitlements, having been forced to withdraw those entitlements on the basis of hardship since she ceased work in 2012. Her evidence was that more than $20,000 of those entitlements had been spent on legal fees in these proceedings, in which, I note, she is the Respondent.

5. In addition, Ms Brighton suffers from psychiatric conditions as a result of what can only be called horrendous childhood abuse and trauma which, according to a report from Dr L attached to an Affidavit sworn 31 January 2013[17], would prevent her from working in any event. Indeed, Dr L says in her report that Ms Brighton’s psychiatric disorders are “chronic, stable and likely to continue indefinitely” and that she “has no current work capacity and this is likely to continue”.

   [17] I note that Dr L’s report was prepared not for these proceedings but for proceedings in South Australia relating to Ms Brighton’s claim for damages against the South Australian government. I considered Dr L’s report only in relation to what it says about Ms Brighton’s capacity for employment.

6. Mr Numan is employed full time and there seems to be no reason why that should not continue into the medium term before he retires. He has some modest superannuation entitlements.

7. Ms Brighton has a claim in damages on foot against the South Australian Government as a result of the abuse she experienced as a child in state care, but what slight evidence is available about that seems to indicate that her case is at best uncertain and at worst likely to fail. I therefore cannot take any potential payment from those proceedings into account in terms of s.90SF(3) factors.

Conclusion

1. This is in many ways a sad case. Ms Brighton presents as a highly anxious, distressed and vulnerable woman who has had an extremely difficult life since going into state care in her early adolescence.

2. Despite that background, she had been able to work and her life was progressing reasonably well when she met Mr Numan. She owned two properties subject to a mortgage loan of $90,000 and she was working full time.

3. Now, while she still owns the two properties, they are in much worse condition, partly because of the work done by Mr Numan, and the mortgage held against the Property B property secures a loan of about $180,000 for which Ms Brighton is solely liable. In addition, Ms Brighton is unable to work, although that situation is not in any way due to any action or behaviour of Mr Numan.

4. Indeed, it is likely that because of her inability to work, Ms Brighton may need to sell one of the properties to pay her debts.

5. In all of those circumstances, I will dismiss Mr Numan's Application and order him to remove any caveats he has placed on Ms Brighton’s properties.

6. That will mean that each party will keep what is currently his or hers and be able to move on.

I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of Judge Small

Date:  30 April 2014