OAKLEY and ROCHE

[2009] FCWA 132

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: OAKLEY and ROCHE [2009] FCWA 132

CORAM: CRISFORD J

HEARD: 14, 15, 16 SEPTEMBER 2009

DELIVERED : 20 OCTOBER 2009

FILE NO/S: PTW 5102 of 2008

BETWEEN: MR OAKLEY

Applicant

AND

MS ROCHE
Respondent

Catchwords:

De facto relationship - requirements to be satisfied - "substantial" contributions

Legislation:

Family Court Act 1997

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr R Klimek

Respondent: Mr M Rynne

Solicitors:

Applicant: Klimek & Co

Respondent: Leach Legal

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

Jones & Dunkell (1959) 101 CLR 298

Kowaliw & Kowaliw (1981) FLC 91-092

Omacini & Omacini (2005) FLC 93-218

Varga & Kelty (2005) FCWA 80 at [21]

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

CHANGED

1[Mr Oakley] is seeking a property settlement arising out of his de facto relationship with [Ms Roche]. He says that in the relatively short time they were together he put all his time, energy and money into improving a property Ms Roche owned in [Country Town M]. Ms Roche was able to purchase the 75 acre property due to a gift she received from her mother of over $3m in 2006. Mr Oakley says they had a joint plan to develop the property and his effort needs to be recognised.

2Ms Roche, on the other hand, denies the extent of his efforts. She describes the state of the property as a war zone with nearly every room in a state of incomplete renovation.

Brief background facts

3Mr Oakley and Ms Roche met on 14 March 2007 and they commenced a relationship on 10 June 2007. By 16 July 2007 Mr Oakley was living with Ms Roche in her property at [Property A], Country Town M. At the time Mr Oakley operated [a] business, [Company G].

4Ms Roche has two children from an earlier marriage – [Child A], now aged 18 years and [Child B], now aged 10 years. Mr Oakley has a son but he plays no relevant part in the matter before the Court.

5The parties initially separated on about 10 February 2008. There is a dispute over the length of this separation but they resumed cohabitation at latest by 22 April 2008.

6Between this time and the parties’ final separation on 16 August 2008 they separated and reconciled for other less lengthy periods of time.

7On 16 August 2008 when the parties finally separated they were in transit at Singapore International Airport on the way to Thailand for a holiday. Ms Roche returned to Perth and Mr Oakley continued on to Thailand.

8Mr Oakley commenced proceedings in this Court on 20 October 2008.

9By the end of the trial the parties accepted their relationship was between 10 and 13 months, depending on which account is accepted by the Court.

Applicable law

10Part 5A of the Family Court Act 1997 confers jurisdiction on the Court to make orders for settlement of property owned by parties who have lived in a de facto relationship.

11Section 205Z of the Act provides as follows:

“S 205Z(1) [Requirements to be satisfied]

A court may make an order in relation to a de facto relationship only if satisfied -

(a) there has been a de facto relationship between the partners for at least 2 years;

(b) there is a child of the de facto relationship who has not yet attained the age of 18 years and failure to make the order would result in serious injustice to the partner caring or responsible for the child; or

(c) the de facto partner who applies for the order made substantial contributions of a kind mentioned in section 205ZG(4)(a), (b) or (c) and failure to make the order would result in serious injustice to the partner.”

12That sub-section provides as follows:

“(4)In considering what order (if any) should be made under this section in proceedings with respect to any property of de facto partners, or either of them, the court must take into account —

(a) the financial contribution made directly or indirectly by or on behalf of a de facto partner to the de facto relationship or a child of the de facto relationship to the acquisition, conservation or improvement of any of the property of the de facto partners, or either of them, or 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 de facto partners or either of them;

(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a de facto partner or a child of the de facto relationship to the acquisition, conservation or improvement of any of the property of the de facto partners or either of them, or 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 de facto partners or either of them;

(c) the contribution made by a de facto partner to the welfare of the family constituted by the de facto partners and any children of the de facto partners, including any contribution made in the capacity of homemaker or parent;”

13The parties both agree their de facto relationship was of less than two year’s duration and there are no children of their union.

14What remains in contention is whether Mr Oakley has made substantial contributions as set out in s 205ZG(4)(a), (b) or (c) of the Act and that the failure to make an order would result in serious injustice to him.

15Neither counsel directed me to any authorities that might assist in understanding what is meant by “substantial contributions” within the meaning of the Act. There can be no doubt in my mind that the concept of “substantial” needs to be considered in the context of the financial position of a particular party. A substantial contribution for people of limited financial resources may be considerably different to a case involving very wealthy parties. Chief Judge Holden (as he then was) in considering what is meant by “substantial contributions” in s 205X(b)(ii) said in Varga & Kelty (2005) FCWA 80 at [21]:

“In my view, substantial means something more than usual or ordinary. In my view, s 205X(b)(ii) is aimed at more exceptional circumstances where serious injustice may be caused by the application of sub-section (i).”

16I respectfully agree with what his Honour said.

17It will often be a matter of degree as to when an ordinary or normal contribution becomes a substantial one.

The facts

•Financial contributions – s 205ZG(4)(a)

18I will firstly consider the financial contributions Mr Oakley says he made. He relies on what he says are a number of direct contributions. These are:

•A cash amount of $30,000;

•$25,000 towards living expenses;

•Jewellery of $19,000; and

•A Harley Davidson motorcycle worth $35,000.

19Mr Oakley says he accumulated $30,000 in cash prior to the relationship. He explained that on 30 March 2007 he lent his brother three lots of $5,000. He had a bank account showing such withdrawals. He says his brother repaid him in cash some weeks later. Mr Oakley retained the money in his safe. He says he had saved an additional $15,000. At trial he says he pooled the cash with Ms Roche’s money. He says this went to general living expenses and entertainment.

20In his trial affidavit he deposes that he “… applied $30,000 cash from my safe toward general living expenses and entertainment of Ms Roche and me. I had accumulated these funds prior to my relationship with Ms Roche.”

21Ms Roche disputes that Mr Oakley brought such money into the relationship. She deposes to helping Mr Oakley prepare a house he owned in [Suburb C] for sale. Mr Oakley said it sold in August 2007. Ms Roche deposes that prior to settlement she assisted Mr Oakley in cleaning, packing and emptying the property. She says that Mr Oakley opened the safe in front of her and removed passports, some paperwork and jewellery. She says there was no money in the safe. The sale of Mr Oakley’s property was some months after they commenced their relationship.

22Mr Oakley then says during the relationship he provided another $25,000 towards their living expenses. There is no precise detail as to where that came from and when it was used.

23The issue of the additional $25,000 only became apparent to the Court during the trial. Ms Roche deposes to Mr Oakley working for himself outside the property installing [electrical fittings] on occasions. She says he continued to operate Company G for several months after they started living together in July 2007. He had two employees working with him. She specifically recalls accompanying him to two jobs. She said he continued to receive commissions through the business while they were together.

24Mr Oakley says he sold a Toyota motor vehicle in December 2007.

25In his affidavit Mr Oakley deposes to having purchased approximately $21,000 worth of jewellery for Ms Roche. At trial he clarified that he gave her an engagement ring. He had also obtained jewellery for himself and Ms Roche’s daughter. Ms Roche deposes to Mr Oakley telling her he had done some [electrical work] work at one of the homes of a jeweller, [Mr E], and that it was a barter payment. Mr Oakley said it related to a single job he had done.

26At trial Mr Oakley said he bought Ms Roche an engagement ring insured for $19,000. During cross-examination he accepted he did not purchase this ring, but received it in lieu of payment for doing some work for a friend of the jeweller, Mr E. Ms Roche retains the ring but said she would give it back to Mr Oakley.

27Lastly, Mr Oakley owned a custom built 2001 Harley Davidson motorcycle he purchased prior to the relationship. This motorcycle was removed from the Country Town M property at the time the parties separated in what can only be described as suspicious circumstances. Ms Roche was at the property and Mr Oakley was in Thailand. Mr Oakley alleges that Ms Roche stole the motorcycle. He is seeking to have the Court take the value of the motorcycle into account as a notional financial contribution made by him, given his assertion that Ms Roche has taken it.

28Although not as bold as Mr Oakley in her accusation, Ms Roche’s position is that Mr Oakley, through his agents, is responsible for the disappearance of not only his motorcycle and tandem trailer, but some other property she owned being a Polaris quad bike and a Stihl chainsaw. The motorcycle and quad bike were insured at the time of the disappearance. Both Mr Oakley and Ms Roche were named on the policy.

29The missing Harley Davidson is of great significance to Mr Oakley. He went to some effort to try and establish a theft by Ms Roche. He also obtained evidence as to the replacement value of such a bike - $110,000.

30I was reluctant to embark on what can only be described as a criminal investigation based on inconclusive evidence, dubious memory, partisan witnesses and speculation. Both parties have other avenues of redress if they wish to pursue this matter. Neither had reported a theft by the other to the police. The insurance company has to date refused to pay the claim made given its view that the facts obtained by it during the course of the investigation demonstrate that someone benefitting from the claims has engaged in an act contributing to the loss.

•Indirect contributions s 205ZG(4)(b)

31Indirect contributions are the mainstay of Mr Oakley’s argument. He says he worked almost constantly on improving the Country Town M property during the relationship.

32Given the relatively short time the parties lived together it is of some relevance to consider the exact length of the relationship and thus, the time during which Mr Oakley could and did make contributions. Ms Roche says they lived together for about 10 months during the following periods:

•16 July 2007 to 10 February 2008;

•22 April 2008 to approximately 15 May 2008 (about three weeks);

•30 May 2008 to 10 June 2008 (about two weeks); and

•17 June 2008 to approximately 16 August 2008 (about nine weeks).

33Initially Mr Oakley, through his counsel, maintained the relationship was 18½ months. This was revised during the course of the trial and in his closing said it was about 13 months. The difference in length comes down to three areas:

•Mr Oakley says the date the parties started living together was 10 June 2007;

•After the separation on 10 February 2008 Mr Oakley says the parties reconciled on 20 March 2008; and

•Mr Oakley denies short periods of separation which cumulatively equal about a month.

34Mr Oakley says it is significant that the parties became engaged to be married very early on in their relationship. Ms Roche accepted this was in July 2007. She said she wanted a long engagement.

35I am satisfied that very little turns on the exact length of the relationship. I consider it unlikely that Mr Oakley did anything by way of indirect contributions to the property until he commenced living permanently at Property A, which I accept was more likely to be in July than June 2007. It likely coincides with the engagement. I have no doubt the parties spent some nights together before July, but their de facto relationship commenced then.

36Ms Roche recalls the reconciliation after their first separation being on or around 22 April 2008 because she has a specific memory that her mother’s birthday, [in] April 2008, was only days away from the event. She does, however, concede they did overnight together on 14 March 2008 and spent some time together at Easter 2008. She says they did not fully reconcile until 22 April 2008. This is supported by her witness [Mr Underhill], a witness Mr Oakley’s counsel considered unimpeachable.

37It is also consistent with a mail redirection form completed by Mr Oakley around that time showing his mail to go to Country Town M rather than his parents’ home.

38Correspondence between solicitors for the parties between April and August 2008 support the fact of further separations. The exact duration is unclear.

39Overall, I am satisfied that the period in which Mr Oakley had the opportunity to make any indirect contributions to the property is about 12 months.

40Ms Roche says that during the longer separation both parties engaged solicitors and commenced negotiations in relation to signing a binding financial agreement. Although the evidence is a little patchy it is clear that the parties were concerned to establish who owned what. The amount of work Mr Oakley had done on Ms Roche’s property was also an issue for them. Ms Roche did not want Mr Oakley to work on the property or if he did it was to be by way of gift to her. She maintained any work already done by him had been compensated for by payments made to him or made on his behalf, for example, in paying his bills and funding his living expenses.

41Ms Roche accepts that Mr Oakley did work on the property up until the time they first separated in February 2008. In particular, she says he worked hard for a period from late September to early December 2007.

42Ms Roche’s evidence is that after the parties reconciled in April, Mr Oakley’s work was minimal. Mr Oakley denies this and says he made substantial contributions throughout the whole period the parties were together.

43A number of workmen involved in doing work on the property were called to give evidence.

44[Mr Sanders] and his son [Tim] were long standing friends of the Roche family. Mr Sanders had a falling out with Ms Roche in early 2009. The falling out revolved around Ms Roche asking Mr Sanders to verify invoices for work he had done on the property around the time Mr Oakley was there and up to early 2009. Ms Roche has estimated she paid Mr Sanders some $64,000. Mr Sanders denies it was anywhere near this amount. Mr Sanders explained that he had full-time employment and simply worked for Ms Roche on a cash basis for “mate’s rates” when he had the time. The income was not declared. He refused to sign any invoices and gave evidence that the amount of work he actually did was worth in the vicinity of $10,000 to $15,000. His wife, not surprisingly, confirmed this amount and said Ms Roche had tried to make them lie about the amount Mr Sanders earned. I am not satisfied either Ms Roche or Mr Sanders kept records of the cash that changed hands.

45Mr Sanders said he worked from early October 2007 until August 2008. He said he observed Mr Oakley to be working on improvements to the property almost constantly during that time. He makes no mention of the period of time the parties were separated for at least one, and up to two, months in February 2008. He also had his own employment during that time.

46Mr Sanders said his son, Tim, also assisted with work on the property. He said once Tim had finished school in 2007 he gave some assistance. He said his son had worked less in 2008.

47Tim says he started work in mid-December 2007 when he had finished year 12, until late January 2008. He also assisted his father with some bricklaying at the property between October 2007 and August 2008. During the period between mid-December and late January he worked approximately three days a week.

48In cross-examination Tim conceded he had not done much work in 2008 and was unable to identify the exact number of days. In answer to leading questions in his re-examination he confirmed working for greater periods of time.

49Mr Underhill was called by Ms Roche to give evidence. He is a long standing family friend of the Roches. He had assisted Ms Roche from time to time prior to her relationship with Mr Oakley. He said that between about the middle of June until early November 2007 he was rarely at the property. When he did go there he observed that some work had been done. He detailed what he saw at trial, although there is no evidence that satisfies me it was all done by Mr Oakley. In early November he was specifically retained to carry out work for some three to four days each week. He worked eight hour days. He said from that time until February he worked with Mr Oakley. He said there were only a few jobs that Mr Oakley did and in which he was not involved. He deposes there were a number of jobs he did without assistance from Mr Oakley. He says between that time on many occasions he and Mr Oakley worked on the same job together. On other occasions he did work solely when Mr Oakley and Ms Roche left the property.

50He also says that between April and their final separation in August 2008 the parties further separated and reconciled on a number of occasions. During that period of time Mr Underhill deposes he assisted Mr Oakley with some work, including installing the cool room and putting in copper piping in the bathroom. In cross-examination he said between April and August they worked together for about three days a week.

51Ms Roche deposes that after the separation in February 2008 she agreed to reconcile with Mr Roche on the understanding that he would attend Alcoholics Anonymous and anger management, cease renovation work on her property and get a job. None of these stipulations appear to have been met. There were also Violence Restraining Order proceedings at that stage.

52It must also be borne in mind that the parties took a number of trips early in their relationship. This supports the fact that it was not until late September/early October that work really began in earnest. The parties were in Surfers Paradise for 10 days commencing 24 July 2007. In late August/early September they again went to the Eastern States for the funeral of Ms Roche’s father.

53The parties were also involved in the preparation of Mr Oakley’s house for sale. This involved, according to the unchallenged evidence of Ms Roche, working on the property for some three weeks prior to its sale. The parties were also involved for a period of time in late 2007 with an IVF attempt. Mr Oakley, again, on the unchallenged evidence of Ms Roche, was drinking heavily by about October 2007.

54Although I found some of the evidence to be less than reliable there was a common thread of all witnesses indicating Mr Oakley had worked hard on the property between late September 2007 and 10 February 2008. I am satisfied that for this time, about 4½ months, Mr Oakley worked about four days each week on the property.

55When the parties reconciled on 22 April 2008 I find that Mr Oakley did less work. In that period I find he initially worked about three days a week on average. This declined as time went on. I say this taking into account the ruction of further, albeit shorter, separations, and the knowledge in the context of the negotiations for the binding financial agreement that there was no encouragement by Ms Roche for him to work. During those months their relationship was disintegrating. I find he did further work, albeit less intense for no more than three months.

56I now turn to what work was done during that time.

57Mr Oakley deposes:

“33.In 2007 and 2008 during the period that I resided at the property, in acknowledgement that [Ms Roche] paid for all materials (unless otherwise specified) and some labour, I was unpaid and made the following improvements to the property:

…”

58Mr Oakley then goes on to set out some 123 items of work he says he did on the property. He provided about 35 photographs of the property showing not only various items of equipment, but the property in various stages of renovation and construction. The latter were of little evidentiary value.

59Mr Oakley’s main corroborative witness was Tim Sanders. Although Tim had completed his year 12 at school I formed the view that his strengths lay in areas other than reading and writing. His affidavit material sets out with precision the tasks he says he observed (and in most instances assisted) Mr Oakley doing. He said in cross-examination that when he was approached by Mr Oakley’s lawyer he went to Mr Oakley to work out what they had done together. He said they sorted out together what would go in his affidavit. Mr Oakley gave his lawyer the information.

60A close inspection of Tim’s affidavit detailing the work he says he observed reveals what is commonly known as a straight cutting and pasting of Mr Oakley’s own affidavit.

61Not only are the tasks set out in Tim’s affidavit specifically personal to Mr Oakley, they are tasks or descriptions I find Tim could not honestly depose to knowing or observing. The detail of the tasks would be beyond the knowledge of this particular witness.

62Suffice it to say that such a practice is completely inappropriate, misleading to the Court and unfair on a witness such as Tim. The end result throws doubt on the veracity of the evidence. I am not satisfied Tim is in a position to fully appreciate the content of the affidavit given what I observe to be his reading skills.

63Ms Roche and Mr Underhill have addressed a number of the 123 matters raised by Mr Oakley as to work he says he did on the property. Both accept a lot of the work was done. However, it is clear to me Mr Oakley has exaggerated the amount of work he did. I do accept he was able, from time to time, to get trade discounts on the purchase of materials. The “unimpeachable” Mr Underhill gave evidence about work he had done in direct contradiction to some of the work Mr Oakley said he had done. Ms Roche also clarified a number of issues. I accept both of these witnesses over Mr Oakley.

64I found both Mr Oakley and Ms Roche prone to exaggeration. At times I suspect they wildly exaggerated their own claims in order to advance their respective positions. However, I found Mr Oakley to be more careless in his attention to detail, less than precise in his assertions and unable to provide substantiation for a lot of the matters in contention. Where there is a discrepancy in the evidence about what Mr Oakley did to the property, I prefer the evidence of Ms Roche. She was able to make admissions against her interest on a number of items Mr Oakley said he did. Although I suspect she has devalued some of his work, I found her to be more reliable and accurate overall.

65One of the issues for Ms Roche is that a lot of the work Mr Oakley did was poorly executed, requiring her to expend further monies in repairs or having the work entirely redone. There is no doubt that on a number of tasks Mr Oakley attempted he did not have the necessary skills. This necessitated repairs being done at Ms Roche’s cost. One example of this is found in the unchallenged evidence of [Mr Milic].

66It is of little use to go through each and every item of work done. It is not denied that Mr Oakley did work on the property and at times he did a lot of work on the property. At times he worked very hard but he did not do as much as he says he did.

67I also find his work to have been piecemeal, leaving some tasks incomplete for long periods.

68Some of Ms Roche’s money from a personal investment account was deposited into a bank account of a company, [Company S], set up by Mr Oakley’s financial advisers for future asset purchases prior to his relationship with Ms Roche. At the date Mr Oakley and Ms Roche cohabited it had not traded. Ms Roche and Mr Oakley had planned to utilise it to develop the Country Town M property. Ms Roche was added as a director and 50% shareholder in about August 2007. She resigned as a director after the parties separated.

69The account was initially utilised for the purchase of a bobcat and truck with Ms Roche’s funds. The bank account was opened at Ms Roche’s usual banking institution. She paid the bank fees. I do not consider the use of Company S in this way to be a substantial contribution by Mr Oakley.

Contributions to the welfare of the family and as homemaker – s 205ZG(4)(c)

70Mr Oakley sets out a number of “domestic contributions” he alleges he made. These include transporting Ms Roche’s children to and from TAFE or school, assisting in the preparation of meals, accompanying Ms Roche and her children to the Gold Coast and to Ms Roche’s father’s funeral, teaching her son to drive and relocating her belongings from her previous property in [Suburb N] to Country Town M.

71Ms Roche denies most of these contributions. There is independent unchallenged evidence of [Mr Albert] to suggest Mr Oakley played no, or no substantial, part in relocating Ms Roche from her previous property in Suburb N to Country Town M.

72Ms Roche concedes that Mr Oakley was of occasional assistance to her in transporting her children to their educational institutions. Her son only attended TAFE in [Suburb O] for half a term. In the main, Mr Underhill helped her. She says that both she and Mr Oakley accompanied her son in the car on a number of occasions to enable him to accumulate driving hours for the purpose of obtaining his motor driver’s licence. She denies that Mr Oakley ever gave him driving lessons. She accepts that he occasionally cooked paella but was not actively involved in home duties.

73Mr Oakley’s position is supported by Tim Sanders who deposes:

“7I also observed [Mr Oakley] to have made the following domestic contributions:

7.1 On most occasions, I would transport either [Child A] or [Child B] to and from TAFE or school, while [Ms Roche] transported the other;

7.2 Assisted with the preparation of meals on almost all occasions;”

74Again, it is patently obvious that chunks of Mr Oakley’s own affidavit have simply been cut and pasted into the affidavit of Tim. Even on the basis of evidence contained in other parts of the affidavit and his oral evidence, Tim would not have been present to witness the preparation of meals “on almost all occasions” or transportation “on most occasions”.

75I have previously commented on the poor preparation of affidavit material in this case and the impact it has on credibility.

Conclusion on contributions

76Turning firstly to the financial contributions, overall I am not satisfied there has been any contribution of a substantial nature. I accept there has been some relatively modest contribution only.

77I am not satisfied that an amount of $30,000 was provided by Mr Oakley at or about the commencement of the relationship. I say this for the following reasons:

•Although Mr Oakley’s bank account shows a withdrawal of three lots of $5,000 around the time he states, there is little objective evidence to support the amount being repaid or returned to him. His brother was present in the courtroom throughout the trial. He was not called upon to provide any independent corroboration of Mr Oakley in this respect. It would have been possible and appropriate to call him and I conclude his evidence may not have been of assistance to Mr Oakley.

•Ms Roche says she saw the contents of the safe some time later and there were no such funds. She denies there was any “pooling” of funds. Although I had concerns at times about the accuracy and reliability of both parties, in this respect I preferred the evidence of Ms Roche.

•I accept that given her own financial circumstances and her strength of feeling for Mr Oakley, she was the one who made overwhelming financial contributions to every aspect of their lives.

78I am more inclined to accept that Mr Oakley made a financial contribution from time to time during the course of their relationship. Even on Ms Roche’s evidence he continued to do some work for Company G, at least in the early part of their relationship. This would account for him having money from his own work. I cannot be sure about the exact amount.

79I am not satisfied that the ring can be properly characterised as an initial contribution or as a contribution to the acquisition, conservation or improvement of property. If I am wrong in this I am unsure of its worth. Again, I bear in mind what is commonly known as the principle in Jones & Dunkell (1959) 101 CLR 298. Despite Mr Oakley’s protestations that the jeweller Mr E was only a phone call away and able to confirm the barter arrangement, there is no evidence to support his position that, amongst other jewellery, a ring worth $19,000 was exchanged for a single job he did for either Mr E or a friend of his. Mr Oakley initially said that he had bought the ring and other jewellery for Ms Roche. As it transpired, this was far from the truth. The amount of $19,000 is an insured value.

80Lastly, Mr Oakley sought to add back the value of his custom built Harley Davidson.

81In Omacini & Omacini (2005) FLC 93-218, the Full Court identified three clear categories of cases where it is appropriate to notionally add back to a pool, assets which no longer exist. This is where the parties have expended money on legal fees, where there has been a premature distribution of matrimonial assets or in the Kowaliw circumstances. In the last of these Baker J in Kowaliw & Kowaliw (1981) FLC 91-092 identified two such situations:

“(a)where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets; or

(b)where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.”

82Despite the principles put forward in these cases, the Court retains the discretion whether or not to notionally add back assets.

83I am not satisfied that the principles put forward are relevant to the circumstances in this case or if they are that Ms Roche’s behaviour falls within the recognised categories.

84The Harley Davidson was purchased by Mr Oakley prior to the relationship. There is nothing to suggest it was used by Ms Roche. Quite to the contrary, Mr Oakley indicated it was more a show bike and unsuitable for a pillion passenger. It would have been his intention to take the bike with him on separation. He has provided the Court with no reliable or cogent evidence to suggest the Court should be satisfied on the balance of probabilities that Ms Roche was instrumental in the disappearance of the bike. I find the evidence to be completely equivocal in that regard and, like the insurance assessor, can see that both had the opportunity, either personally or through agents, and the motivation to remove the bike along with various other items. However, the disappearance is equally consistent with a third party who had some knowledge of the property, such as tradesmen, but who may well have operated independently of Mr Oakley or Ms Roche.

85Overall, I am not satisfied that Mr Oakley’s direct financial contribution is substantial.

86I now turn to the indirect contributions Mr Oakley says he made. Of the 12 months within which I find he had the opportunity to make contributions, I have determined that he worked hard over about a 4½ month period. Subsequently for about a three month period he worked, but not at the same intensity. He may have done some work early on. By all accounts this reflects a relatively short period of time within which Mr Oakley had to make the substantial contribution required by the legislation.

87I must determine whether what he did was of great worth or value in the context of his particular circumstances.

88Turning to his circumstances, I do not find he gave up a flourishing business in order to devote himself to developing the property. I have dealt with this in more detail later in the judgment. Suffice it to say here I find he of his own accord gave up a business that was of little value save it gave him an income of moderate worth.

89I am not satisfied that he utilised any or any great amount of his own money in the work he did. Ms Roche paid the accounts and tradesmen. The proceeds of sale of Mr Oakley’s home in Suburb C which were available from relatively early in their relationship were effectively returned, in total, to Mr Oakley by the time the parties separated.

90Mr Oakley gave of his time and skill. Unfortunately, the latter did cause some problems which I accept on occasions required rectification or completion.

91I am not satisfied that the giving of his time and effort in the manner in which he did over a period not much greater than 7½ months, in all the circumstances, elevates his contribution to that of being substantial.

92There is no firm barometer of the value of any work done by Mr Oakley. This is not a criticism of the parties. A valuation obtained by Ms Roche of the property at 1 March 2008 ($1,520,000) compared to the purchase price on 4 May 2007 ($1,457,000) is of little assistance given the accepted market downturn during that period of time. On the other hand, Mr Oakley sought to adduce evidence from a quantity surveyor in relation to the work undertaken by him upon the property. I was not prepared to grant Mr Oakley’s request given the extremely late application and also considering the conflicting evidence about what improvements Mr Oakley did. At the end of the trial I found that a lot of the tasks he said he did were either done by others or done with the assistance of others. I also accept that further work had been done on the property since separation in August 2008. Mr Oakley’s application came over a year later. I accept some of the work that had been redone or rectified was no longer in existence.

93I am simply not satisfied that the work Mr Oakley put into the property over a relatively short period of time was in any way exceptional.

94Again, I am far from satisfied that anything other than a minimal contribution was made by Mr Oakley on a domestic basis.

95Not only must Mr Oakley establish he has made substantial contributions, but he must also establish that failure by the Court to make the order he seeks would result in a serious injustice to him.

96Although I have determined that Mr Oakley did not make substantial contributions, if I am wrong in this, it is useful to look at what Mr Oakley says would be a serious injustice to him. There is some overlap with the issue of contributions.

Serious injustice

97Mr Oakley relies upon a number of matters as creating serious injustice.

98Firstly, at the commencement of the relationship he says he gave up what he considered to be a thriving business in order to work on Ms Roche’s property.

99Mr Oakley deposes to having wound up Company G which he asserts turned over a profit of approximately $120,000 each year at the time the parties cohabited. He says he did this in order to work full-time on improving the property in Country Town M.

100In early 2007 Mr Oakley had settled financial matters with a former partner in the Family Court of Western Australia. For the purpose of those proceedings he had his tax agent and accountant provide information about Company G. It was accepted that for the purpose of the proceedings that “for the year ended 30 June 2005 the company had net assets of $957. The preliminary accounts for the year ended 30 June 2006 will also show a similar amount of net assets.” The accountant was of the opinion that the company was worthless as without Mr Oakley working the company would not function as it currently does.

101The accounts provided by Mr Oakley for the year ending 30 June 2007 show the company having net assets of $817.73.

102Mr Oakley was cross-examined in relation to the financial statements of the company. I do not consider that the statements show Mr Oakley conducted a thriving business. I accept he was able to earn a reasonable income. There were, however, liabilities relating to motor vehicles which he needed to service on a regular basis. Business losses were also recorded. For the financial year ended 30 June 2007 the company operated at a loss of $12,043.09.

103I consider that Mr Oakley has exaggerated the viability of his business at the time the parties commenced their relationship. Ms Roche gave evidence that Mr Oakley continued to do some [electrical] work, at least early in their relationship.

104I am also not satisfied that his business is completely defunct or could not be resurrected with a little effort.

105Mr Oakley accepted he had previously run another electrical business for four to five years. He started this at age 19. He grew the business which branched out into Melbourne. There were about 10 staff. He had left the business to his brother when he went overseas.

106Mr Oakley accepted that he had not really applied for any other employment since his separation with Ms Roche. He said it was a difficult thing to do because he had previously been in competition with most other electrical firms. It is clear he has taken no active steps whatsoever to really recommence any form of employment, including resurrecting his previous business.

107Secondly, Mr Oakley deposes that in anticipation he would cohabit indefinitely with Ms Roche he sold a property he owned in Suburb C. He says he applied the funds from this sale towards improving the Country Town M property and to general living expenses of Ms Roche and himself. This does not accord with the evidence.

108The net proceeds of sale of Mr Oakley’s home of $106,770 were deposited into a joint bank account of the parties on 1 December 2007. An amount of $6,300 was withdrawn by Ms Roche. She says that prior to receiving the proceeds of sale she had paid out the balance of monies owing by Mr Oakley on his BMW motor vehicle which was $6,354.84. It was agreed she would reimburse herself from the sale proceeds once received. Mr Oakley accepted she had paid one car account for him. He was vague about the details of this.

109On 12 February 2008, at the time the parties separated on the first occasion, Mr Oakley withdrew $50,000 of the house funds from the joint account. He said he wanted to ensure that he had funds for living expenses. On 10 July 2008 Ms Roche gave Mr Oakley a bank cheque for $50,000 representing the balance of the proceeds from the joint account. Overall, I am satisfied that the proceeds of sale of Mr Oakley’s home were utilised by him or applied for his benefit.

110On 18 August 2008 Mr Oakley had $72,704 in his bank account.

111Thirdly, Ms Roche’s post-separation conduct has been disruptive to him. He refers to an alleged failure by Ms Roche to return the content of his filing cabinet, the content of his computer which involved her deleting items from the hard drive, deletion of telephone numbers on his mobile phone and a refusal to return the engagement ring.

112The evidence about post-separation conduct was less than satisfactory. I am not satisfied that Ms Roche has deliberately deleted either Mr Oakley’s telephone numbers or the content of the hard drive on his computer. Even if she had, it is irritating, inconvenient and a common complaint in proceedings of this nature but not, in my view, a serious injustice. Ms Roche said in evidence she would return Mr Oakley’s engagement ring to him.

113Fourthly, the loss of the Harley Davidson motorcycle is cited as a serious injustice.

114As set out previously I am not satisfied this is necessarily as a result of Ms Roche’s actions anymore than it is of Mr Oakley’s actions. Mr Oakley has been able to purchase a further Harley Davidson motorcycle on which Ms Roche paid a $2,000 deposit. He is pressing an insurance claim for the missing Harley Davidson. He may or may not be successful in this.

115Lastly, he says he is unable to take the matter to any other jurisdiction or, if he does, he cannot have his homemaker and parent contributions recognised.

116There was nothing to prevent Mr Oakley from raising this matter in another, perhaps more appropriate jurisdiction. His counsel pointed out that in other jurisdictions he would not be able to raise his contributions as homemaker or parent. I am not satisfied that he made any contributions as a parent. His homemaker contributions are extremely minimal. I do not see this as being a serious injustice.

117In conclusion if I am wrong in my assessment on his lack of substantial contributions, I am still not satisfied that Mr Oakley has suffered a serious injustice. He has retained the proceeds of sale of his home which, at final separation, were about $72,704, having spent money during the earlier separations. I find he is able to obtain further employment. He had taken no steps in this regard. Whilst he was with Ms Roche his living expenses were paid for and he had a more than adequate standard of living, almost all at Ms Roche’s expense. This included holidays, outings, alcohol, entertainment and the use of equipment she had purchased. He said he was able to purchase more tools during their time together.

118Subject to the submissions of counsel, I intend to make the following orders.

Orders

1The Respondent forthwith return to the Applicant the engagement ring, valued at $19,000.

2The Respondent forthwith make available for collection all and any items including tools and work equipment at Property A which belong to the Applicant.

3The applications and responses otherwise be dismissed.

I certify that the preceding [118] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate