Pope v Hawkins
[2005] SADC 103
•15 August 2005
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
POPE v HAWKINS
Judgment of His Honour Judge David
15 August 2005
FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS
DE FACTO RELATIONS – DE FACTO RELATIONSHIPS ACT, 1996
De facto relationship – application for division of property under the De Facto Relationships Act - consideration of relevant matters under Section 11 – final determination of lump sum payment to be made in a just and equitable manner – “global” approach applied – financial contributions made by both parties to property of parties assessed – non financial contributions minimal – division of property 40 percent to the plaintiff and sixty percent to the defendant – agreed net value of property amounts to $214,500 – allowance for rent owed by defendant reflected in percentage distribution.
De Facto Relationships Act 1996 ss 3, 9, 10, 11 and 12, referred to.
Love v Chidley (2002) 219 LSJS 287; Roberts v Hogg [2003] SADC 92, applied.
POPE v HAWKINS
[2005] SADC 103
The plaintiff, Nicole Lee Pope and the defendant, James Hadley Hawkins separated in January 2003 after having lived in a defacto marital relationship continuously from July 1999. From May 1992 until July 1999 they had been in a serious relationship with each other interrupted by a number of separations. The exact details of that history are to a certain extent disputed. However there is no dispute that they cohabitated in a defacto marital relationship from July 1999 until January 2003. At the time of the separation they were living at a premises at 3 Hazelnut Court, Golden Grove. The defendant now lives at that premises and the plaintiff seeks a lump sum payment for her interest in that property and also an amount for rent. As the issues have been refined during the course of the trial the above property is the only asset about which a decision has to be made. Although there is no dispute by the defendant that he has to pay a lump sum to represent the plaintiff’s interests and also this has to reflect an amount for rent, it is the actual amount and the methodology which is in dispute.
The Law
The material provisions of the De Facto Relationship Act 1996 (“the SA Act”) are as follows:-
Power to make orders for division of property
10.(1) On an application for the division of property, the court may make orders it considers necessary to divide the property of either or both the de facto partners between them in a way that is just and equitable.
(2)For example, the court may make orders for –
(a)the transfer of property from one de facto partner to the other; or
(b)the sale of property and the division of the net proceeds between the de facto partners in proportions decided by the court; or
(c)the payment by one de facto partner of a lump sum to the other.
Matters for consideration by the court
11.(1) In deciding whether to make an order for the division of property under this Part, and if so the terms of the order, the court –
(a)must consider the financial and non-financial contributions made directly or indirectly by or on behalf of the de facto partners to –
(i) the acquisition, conservation or improvement of property of either or both partners; or
(ii) the financial resources of either or both partners; and
(b)must consider the contributions (including homemaking or parenting contributions) made by either of the de facto partners to the other partner or to children of the partners or either of them; and
(c)must have regard to the terms of any relevant cohabitation agreement; and
(d)may have regard to other relevant matters.
(2)If a relevant cohabitation agreement -
(a)is a certificated agreement; and
(b)provides for the exclusion of the court’s power to set aside or vary the agreement, an order for the division of property under this Part must be consistent with the terms of the agreement.
Duty of court to resolve all outstanding questions
12. In proceedings under this Part, the court must (as far as practicable) finally resolve questions about the division of property between the de facto partners and avoid further proceedings between them.
Definitions
3. In this Act –
"de facto partner" means a person who lives in a de facto relationship and includes –
(a) a person who is about to enter a de facto relationship; and
(b) a person who has lived in a de facto relationship;
"de facto relationship" means the relationship between a man and a woman, who although not legally married to each other, live together on a genuine domestic basis as husband and wife;
Property adjustment order
9. (1) After a de facto relationship ends, either of the de facto partners may apply to a court for the division of property.
(2) However, an application for the division of property may only be made if-
(a) the applicant or respondent is resident in the State when the application is made; and
(b) the de facto partners were resident in the State for the whole or a substantial part of the period of the relationship; and
(c) the de facto relationship existed for at least three years or there is a child of the de facto partners.
(3) An application for the division of property must be made within one year after the end of the de facto relationship unless the court, after considering the interests of both de facto partners, is satisfied that extension of this period of limitation is necessary to avoid serious injustice to the applicant.
(4) An application for the division of property may be made or continued by or against the legal personal representative of a deceased de facto partner.
(5) However, an application against the legal personal representative of a deceased de facto partner may only relate to property that is undistributed at the date of the application.
It can be seen that in the exercise of its discretion to order the division of property, including making an order for a lump sum payment (which is the appropriate order here) in a way which is equitable, the Court must consider:-
·Contributions of the defacto partners to property and financial resources;
·Contributions including parenting and homemaking contributions of the defacto partners to one another and to their children or either of them; and,
·Other relevant matters.
Pursuant to Section 9 of the Act I am satisfied that the plaintiff and the defendant were resident in this State when the plaintiff commenced this action (Section 9(2)(a)).
Further I am satisfied that the plaintiff and defendant were defacto partners and were resident in the State for the whole of the relationship which is the subject of this action namely from July 1999 until January 2003 and therefore I am satisfied that a defacto relationship existed “for at least three years” (Section 9(2)(c)).
Finally I find that the application for division of property was commenced within one year after the end of the defacto relationship, Section 9(3). I also indicate that in making the appropriate adjustment as to what is just and equitable I can take into account events which occurred outside the defacto relationship in making that determination (Love v Chidley (2002) 219 LSJS 287 at page 298). It is a significant consideration in this case because as will be seen although the defacto relationship which is the subject of this action commenced in July 1999 nevertheless the parties had been involved in a number of relationships with each other from 1994 until July 1999. During that period of time it is important to consider contributions that were made to the acquisition of the block of land and the building of a house at 3 Hazelnut Court, Golden Grove which is the property about which this action is concerned.
History of the Relationship between the Parties
Although much of the history of the relationship between the plaintiff and the defendant is not in dispute there are a number of areas where there are some differences. I hasten to add that these chronological differences would make no difference to my decision. I also add that as far as the history of the parties is concerned I prefer the evidence of the plaintiff to that of the defendant. I do not consider the defendant is misleading the Court or deliberately not telling the truth however he admitted that he had difficulty remembering certain events and I find the memory and the evidence of the plaintiff much more accurate and reliable.
There is no dispute that the plaintiff was born on the 19th September 1972 and that the defendant was born on the 21st January 1974. They both met in October 1991 and in May 1992 they started a relationship. After going out for a period of about 12 to 18 months they started to live together in July 1994 in rented accommodation at Roycroft Place, Golden Grove. They then moved to rental property at Debenham Court, Greenwith and in December 1995 they moved into the house of the defendant’s parents at May Road, Paracombe. They lived there for about 12 months.
In June of 1996 the plaintiff left the premises and lived with her parents but she was still in a relationship with the defendant. She resided with her parents for a period of 12 months and then went back and lived at the house of the defendant’s parents in June 1997. In August 1997 the parties got engaged but in June 1998 the engagement was broken off and the parties separated and later on in 1998 the plaintiff went overseas. In December 1998 they both reunited and recommenced their relationship. In the middle of 1999 both parties recommenced cohabitation and lived again at the house of the defendant’s parents. At that stage they were living as husband and wife. They moved into their own home at 3 Hazelnut Court, Golden Grove in February 2000 and in January 2003 the relationship broke down and they finally separated.
Assets of the Parties
As the case has been refined the one remaining asset of the parties about which a decision has to be made is the property at 3 Hazelnut Court, Golden Grove where the parties lived from February 2000 to January 2003 and where after that period of time the defendant has continued to live. The property upon which the premises was built was purchased by the defendant in his name pursuant to a settlement for the purchase of the property in June 1997 (Exhibit D5).
It is undisputed that the property was originally purchased at that date for $45,000. At that time the parties were not living together although I find they were still in a relationship. There is some dispute about whether the property was bought for the purposes of providing a home for both of them or whether it was just bought as an investment for the defendant. I find that nothing turns on that dispute. It is agreed that a deposit of $9,440 was paid by the defendant at settlement and the balance of the $45,000 was financed by a first mortgage (Exhibit D6).
Amounts of $800 were paid per fortnight off the loan including interest and this was done solely by the defendant. During this period of time the plaintiff and the defendant were living together at the defendant’s parents home. I find that from the period when the block was purchased in June 1997 until the first separation in June 1998 the full amount of repayments was made solely by the defendant. The contribution by the plaintiff at that time to household expenses which would allow the defendant to make those payments I find to be minimal because they were both living with the defendant’s parents. I find that in 1998 when the parties reunited and before they commenced cohabitation in July 1999 a decision was made to build a house on the block and a contract was signed with Fairmont Homes. In order for this to be put into effect refinancing took place and the outstanding amount of $12,000 which was owed on the block was rolled into a refinanced loan of $105,000. That loan was obtained over a period of time as the building progressed.
From about August 1999 I find and there is no dispute that the plaintiff alone was putting about $375 per week towards the mortgage which is basically the whole of her pay. During this period of time the defendant’s pay which was a taxable income of around about $34,000 per year was used towards living expenses. In other words by use of a joint account virtually all of the plaintiff’s pay went to paying off the mortgage payments and the defendant’s pay which was paid into that account went towards their living expenses. There is no dispute that from the plaintiff’s pay a total of $64,500 was paid off the mortgage.
As far as the asset is concerned the situation is clearly that in relation to the purchase of the block of land the defendant by way of mortgage payments and payments of deposits contributed $35,440. During this period of time I find the plaintiff’s contribution that allowed the defendant to make those payments is minimal since for the bulk of that period they were living with the parents of the defendant. I find that from August 1999 to the date of separation the plaintiff herself paid $64,500 off the mortgage of the refinancing of 3 Hazelnut Court, Golden Grove and the defendant did not pay anything. However I also find that the plaintiff was allowed to do this by virtue of the fact that the defendant was the sole contributor to their living expenses. I find that the domestic duties and general jobs around the house which the plaintiff says she was involved in did not contribute to an increase in the value of the property.
Value of the Asset
It is agreed that the property at the date of separation and indeed the present time is worth $287,500 and the outstanding mortgage amounts to $73,000 leaving a total of $214,500. I find that the defendant has inhabited the property since the date of separation.
I find that the minimal rent to be in the vicinity of $200 per week for a period of 120 weeks leaving an amount of approximately $12,000. I have halved the amount of the rent to take into account the outgoings of the defendant while in occupation. I do not think it appropriate that I exceed to the defendant’s request to also take off the amount of outstanding mortgage payments that have to be made as this has already been reflected in the net figure that has been arrived at for the value of the property. However I do not set a separate amount for rent but include that in arriving at the percentage figure of the net asset which I will apportion to the parties.
Conclusion
I think it appropriate that I take a “global” approach. Bearing in mind that I must consider the “financial and non financial contributions made directly or indirectly by or on behalf of the defacto partners to the assets” (Roberts vHogg [2003] SADC 92) and bearing in mind that I find that the plaintiff contributed $64,500 off the mortgage but in doing so I also find that the defendant financially supported the plaintiff and in a sense their contribution during that period of time was about equal. I find that the increase in the value of the property after it had been built was not due to any significant input by either party and was related to forces outside of their control. I find that in the early period before the refinancing took place the defendant contributed $34,500 towards the equity of the land upon which the property was built and there was no significant contribution from the plaintiff. Bearing in mind those matters I find it appropriate that the plaintiff be awarded 40 percent of the equity of the property which is $214,500. There will therefore be judgment to the plaintiff in the sum of $85,800.
I will hear the parties as to interest and costs.
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