Pullman and Carmody - [2011] FMCAfam 1357

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PULLMAN & CARMODY

[2011] FMCAfam 1357

FAMILY LAW – Defacto property – short relationship – considerations to be applied – non financial contributions – overwhelming financial contributions by other party – contribution to step children.

Family Law Act 1975, ss.79, 90SF, 90SM

Hickey and Hickey and Attorney-General for the Commonwealth of Australia (2003) FLC 93-143, (2003) 30 FamLR 355
In the marriage of Lee Steere (1985) FLC 91-626
In the marriage of Ferraro (1993) FLC 92-335
In the marriage of Clauson (1995) FLC 92-595
Teal & Teal [2010] FamCAFC 120
Norbis v Norbis (1986) FLC 91-812
Kessey and Kessey (1994) FLC 92-495 (Full Court)
Pierce and Pierce [1998] FamCA 74; (1999) FLC 92-844 (Full Court)
Farmer and Bramley [2000] FamCA 1615; (2000) FLC 93-060
Figgins and Figgins [2002] FamCA 688; (2002) FLC 93-122 (Full Court)
Williams & Williams [2007] FamCA 313
D & D [2006] FamCA 245
Robb v Robb (1995) FLC 92-555

Applicant:

MS PULLMAN

Respondent:

MR CARMODY

File Number:

SYC 2553 of 2010

Judgment of:

Foster FM

Hearing date:

25 November 2011

Date of Last Submission:

25 November 2011

Delivered at:

Newcastle

Delivered on:

14 December 2011

REPRESENTATION

Counsel for the Applicant:

Mr Cook

Solicitors for the Applicant:

Doolan Wagner & Callaghan

Counsel for the Respondent:

Mr Tockar

Solicitors for the Respondent:

John R Quinn & Co

ORDERS

That within one month from this date the respondent pay to the applicant the sum of $100,000 and in consideration of such payment the applicant provide to the respondent a registrable withdrawal of caveat in relation to the caveat registered by or on her behalf on the title to the property at Property F being the land comprised in Folio Identifier [omitted].
That upon the payment provided for in Order 1 the applicant shall vacate the property at Property F leaving the property in good order and condition, reasonable wear and tear excepted, having regard to the condition of the property as at the date of separation.
That within two months from this date the respondent pay to the applicant the further sum of $186,247.
That the sums provided for in Orders 1 and 3 shall accrue interest from the due dates until payment at the rate prescribed pursuant to s.117B (1) of the Family Law Act 1975.
The Court declares that the parties have divided between themselves in specie all their other property including real property, their furniture and furnishings, their jewellery and other personal effects, chattels, cash on hand and including their cash at bank and building society and that they have no right title or interest in or to any such items presently in the possession of or under the control of the other including their respective accruing superannuation entitlements, if any and for the purposes of this declaration the contents of the Property F, [F] home other than fixtures and fittings are deemed to be in the possession of the applicant.
That liberty is granted to apply in relation to implementation or enforcement of these orders on filing of an application in a case and supporting affidavit.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT NEWCASTLE

SYC 2553 of 2010

MS PULLMAN

Applicant

And

MR CARMODY

Respondent

REASONS FOR JUDGMENT

Applications

This matter concerns competing applications for property settlement between the applicant de facto wife and the respondent de facto husband.
Pursuant to s.90SK of the Family Law Act, the court is satisfied that both of the parties to the de facto relationship were ordinarily resident for at least a third of the defacto relationship in the New South Wales and that pursuant to s.90SB of the Act the court is satisfied that de facto relationship was for a period of at least two years.
At trial of the applicant de facto wife sought orders that in summary provided for a cash payment to her in the sum of $790,000 and in default of that payment the respondent de facto husband do all things necessary to sell the property at Property F, New South Wales and that she receive that sum plus interest accrued from the proceeds of sale.
At trial the respondent de facto husband sought orders that in summary provided for a cash payment of $275,000 to the applicant less one half of the fees paid to the single expert ($11,825), and that consequent upon such payment the applicant vacate the property at Property F.

Background

The applicant was born [in] 1965 and she is presently 46 years of age. The respondent was born [in] 1960 and he is presently 51 years of age.
The applicant has four children from previous relationships. At the time of trial, [W] was aged 22 years, [X] was aged 17 years, [Y] aged 14 years and [Z] aged 8 years.
The child [Z] lived as part of the parties household throughout cohabitation
The respondent has three children from previous relationships, at the time of trial [A] was aged 24 years, [B] was aged 22 years and [C] aged 20. They did not form part of the household in any significant way during cohabitation.
The parties commenced cohabitation in January 2004. At that time the applicant was not working, save for a clerical role in her former husband's business. Shortly after the commencement of cohabitation the applicant commenced to work on a part-time casual basis and later as a permanent employee until December 2009 for the respondent’s company. The applicant was at all times paid a salary for her work for the respondent's company [K] Pty Ltd.
At the time of cohabitation the respondent had the following assets:
a)Cash, he asserted in the sum of $150,000. The evidence revealed that these funds reflected the respondents portion of the proceeds of sale of his former matrimonial home which he had advanced to his then company [C] Pty Ltd. His loan account balance in that company at 30 June 2003 was $150,960 and as at 30 June 2004 $82,459 (Exh E).
b)his 50% interest in [M] Pty Ltd. $54,689 (agreed)
c)his 50% interest in [K] Pty Ltd, $209,852 (agreed)
d)Superannuation entitlements, $37,022.
At the time of cohabitation the applicant had household furniture and personal effects.
The parties at first lived in rented premises at [omitted] for about a month, and then rented premises at [omitted] for about two and a half years. In October 2006 the parties moved to rented premises at [omitted] with the child [Z].
In December 2006 the applicant was hospitalised at [omitted] Hospital. Upon the discharge she moved to her own separate rented premises at Property D, [D].
After a short period the respondent resumed cohabitation with the applicant in the premises at Property D, [D]. The applicant’s children [X] and [Z] also resided there.
In August 2007 the respondent purchased a home unit in Property R, [D] for the sum of $475,000. It was purchased solely in the name of the respondent. The respondent paid a deposit of about $70,000 and the balance of the purchase price was secured by a way of mortgage to a [bank omitted]. The respondent serviced the mortgage using his income and dividends received from his companies. The applicant concedes she made little financial contribution to this property.
The applicant’s children [Z] and [Y] (for about half the time) also resided in this property.
In February 2008 the respondent paid for a holiday to Hawaii, which included two of the applicant's children. In September 2008 the respondent paid for a holiday to Fiji which included all of the applicant's children. In August 2009 the respondent paid for two of the applicant's children to go to Thredbo for a snow holiday.
During the period of cohabitation the applicant earned a modest income, and she applied her income to household and other living expenses, including the expenses for her children who from time to time formed part of the household. Otherwise, the primary income for the household was provided for by the respondent.
In December 2009 the respondent sold the home unit at [D] for the sum of $520,000. The net proceeds of sale in the sum of $309,450 where applied to purchase the property at Property F, [F]. This property was purchased for the sum of $910,000 with the balance of purchase price being funded by an [bank omitted] mortgage.
The applicant's children [Z] and [Y] resided in the Property F property and the child [X] also lived there from January 2010.
The respondent serviced the outgoings and mortgage payments on the Property F property from his income and dividends from his company. The applicant acknowledges that she made little financial contribution to this property.
In December 2009 the applicant ceased working for the respondent’s company and obtained other employment in early 2010 working 5 days per week. This employment continued until separation.
The applicant asserts a contribution to the respondents business but no objective assessment of the impact of her asserted contributions is made. In that circumstance such an assertion can be given little weight.
The applicant asserted that the respondent drew funds from the Property F mortgage that are unaccounted for. On closer examination the funds had been repaid into the account shortly thereafter.
In the parties separated in March 2010 and following separation the applicant and her three youngest children have continued to reside in the Property F property.
The respondent has continued to pay outgoings and mortgage payments on this property since separation to the date of trial. The applicant acknowledges that the respondent may well have been able to rent the property for a sum in excess of $650 per week if she had not remained in occupation.
The respondent concedes that during cohabitation the applicant did the majority of all the usual household chores. These chores of course were undertaken also in respect of the applicant's children that were part of the household from time to time. The respondent further acknowledges that the applicant did all of the washing including his, hers and her children's clothes and that she also attended to the great majority of the household cleaning and indeed the majority of the cooking. During a period of licence disqualification the applicant assisted the respondent in driving him on occasions.
The respondent had a significant role in the day to day lives of the applicant’s three youngest children. He has undertaken a significant financial obligation in regard to the applicant’s children, including some school fee payments, in addition to day to day expenses and the provision of accommodation since August 2007 purchased by him. The applicant concedes that she was given cash for household expenses and had the use of the respondent’s credit card (Exh D) for day to day shopping expenses. An examination of Exhibit D revealed significant expenditure for many day to day items including child related purchases.
The applicant did receive some child support during cohabitation which appears to have depended on which of her children were in her care from time to time.
The applicant unknown to the respondent continued to receive means tested Centrelink parenting payments in relation to her children whilst living with the respondent. She has a significant debt to Centrelink as a result and the parties agree that she will be responsible for same.
In a June 2010 the respondent paid to the applicant the sum of $15,000 by way of partial property settlement. In the December 2010 the respondent paid to the applicant a further sum of $5,000 by way of partial property settlement.
At separation the mortgage balance secured over the respondent’s property was in the sum of $558,000. The mortgage was a redraw facility and the respondent was able to draw against it. Following separation the balance had increased to the date of trial to $636,045. Despite being given the opportunity the respondent was unable to explain the increase in neither the mortgage debt nor the application of funds redrawn. He conceded that otherwise he had since separation maintained all mortgage payments due on the mortgage. In the circumstances the balance at separation will be included in the pool of assets.

The Law

The parties lived in a de facto relationship. Part VIIIAB of the Family Law Act 1975 provides for alteration of property interests between parties formerly in a de facto relationship.
The legislative process and course of consideration is similar to that under s.79 in Part VIII of the Act in respect of married persons.

35.Section 90SM of the Act defines the Court’s powers in determining applications for property settlement between de facto couples. Sub-section 90SM(3) of the Act provides that:
The court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.

36.Section 90SM(4) of the Act sets out the matters the Court must take into account when considering what orders should be made for the alteration of the interest of the parties in property. Those matters are:
(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 the 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 the 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

(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; and
(d) the effect of any proposed order upon the earning capacity of either party to the de facto relationship; and
(e) the matters referred to in subsection 90SF(3) so far as they are relevant; and
(f) any other order made under this Act affecting a party to the de facto relationship or a child of the de facto relationship; and
(g) any child support 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.

Section 90SF(3) of the Act sets out the relevant further considerations which are as follows:
(a) the age and state of health of each of the parties to the de facto relationship (the subject de facto relationship ); and
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c) whether either party has the care or control of a child of the de facto relationship who has not attained the age of 18 years; and
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person; and
(f) subject to subsection (4), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g) a standard of living that in all the circumstances is reasonable; and
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(i) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k) the duration of the de facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l) the need to protect a party who wishes to continue that party's role as a parent; and
(m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n) the terms of any order made or proposed to be made under section 90SM in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(o) the terms of any order or declaration made, or proposed to be made, under this Part in relation to:
(i) a party to the subject de facto relationship (in relation to another de facto relationship); or
(ii) a person who is a party to another de facto relationship with a party to the subject de facto relationship; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(p) the terms of any order or declaration made, or proposed to be made, under Part VIII in relation to:
(i) a party to the subject de facto relationship; or
(ii) a person who is a party to a marriage with a party to the subject de facto relationship; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(q) any child support under the Child Support (Assessment) Act 1989 that a party to the subject de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the subject de facto relationship; and
(r) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(s) the terms of any Part VIIIAB financial agreement that is binding on either or both of the parties to the subject de facto relationship; and
(t) the terms of any financial agreement that is binding on a party to the subject de facto relationship
The approach the court is required to adopt in determining an application under section 79 of the Family Law Act for adjustment of property interests is well established by authority (Hickey and Hickey and Attorney-General for the Commonwealth of Australia (2003) FLC 93-143, (2003) 30 FamLR 355. In the marriage of Lee Steere (1985) FLC91-626, In the marriage of Ferrarro (1993) FLC92-335, In the marriage of Clauson (1999) FLC92-877). The same approach is required in relation to defacto relationships.
The first step is for the Court to identify and evaluate the pool of property including assets, liabilities and financial resources.
Secondly the Court is to consider the contributions of each of the parties to the property pool including financial and non-financial and direct and indirect contributions to the acquisition, conservation and improvement of any of the property and including any contribution in the capacity of homemaker and parent.

The third step for the Court is to consider the matters set out in s.90SF(3)
Finally the court needs to be satisfied that the orders are just and equitable (Teal & Teal [2010] FamCAFC 120)

The property of the parties

At the date of the hearing the parties substantially agreed as to the relevant asset pool which is set out below:
The items asterisked will be commented on below.

Assets:	Appl Value: If not agreed:	Resp Value:
1.	R	Property F, [F]	910,000
2.	R	Loan account [K] Pty Ltd	11,047
3.	R	[omitted] Bank *
4.	R	[omitted] Bank *
5.	R	Interest in [K] Pty Ltd	1,967,335
6.	R	Interest in [M] Pty Ltd	122,827
7.	R	Interest in [C] Pty Ltd	22,760
8.	Jt	Household contents	6,250
9.	A	Westpac bank *
10.	A	Holden [vehicle]	4,500
11.	A	Partial property payment June 2011	15,000
12.	A	Partial property payment Dec 2011	5,000
$3,064,719
Liabilities:
13.	R	Credit cards *
14.	R	Home Mortgage (at separation)	587,000
15.	A	Credit cards *
16.	A	Centrelink Debt *
$587,000
$2,477,719
Superannuation:
17.	R	[A] Superannuation	224,153
18.	R	[B] Superannuation	15,664
18.	A	Superannuation	13,203
$253,020
Total Pool:	$2,730,739

As to the asterisked items in the pool:
a)Bank accounts.: asserted balances were minimal and represented post separation contributions so they have been excluded.
b)Credit cards: Neither party was able to adduce evidence that such debts have relevance to the pool and it was apparent that the debts represented post separation expenditure. They have been excluded.
c)Centrelink debt: this is to remain the responsibility of the applicant.

One pool or two or three

Counsel for the respondent urged the court to consider a disparate pool approach, identifying three discrete pools of assts: firstly the respondents business interests, secondly the non superannuation pool and finally the superannuation pool.
The courts discretion in this regard is well settled. The High Court has held that either approach is legitimate and that there is no binding principle of law controlling the exercise of discretion in the division of property. See Norbis v Norbis (1986) FLC ¶91-712 per Wilson and Dawson JJ at pp 75,173-75,174; where they said:
"If the parties' interests in specific items of property differ or they have made differing contributions, it may be desirable to proceed upon an item by item basis in the division of property between them. In such a case, justice and equity may best be served by treating the items separately for the purpose of determining the proportions in which they are to be divided, particularly if the overall division is to be effected by the transfer or retention of interests in individual assets, as was convenient in this case. ''
Overall in this matter and having regard to the limited nature of the contributions of the applicant the court proposes to adopt a global approach.

Contributions

In Kessey and Kessey (1994) FLC 92-495 (Full Court) at 89,151 the Full Court made clear that ultimately all that is necessary is to evaluate the weight that should be given to each party’s contributions relative to the contributions of the other party:
“... In many – indeed probably in most – property settlement cases the Court has to evaluate and assess contributions to property in the absence of precise valuations of the contributions in question. Indeed, where the contributions to property are indirect or non-financial, precise valuation is impossible, and even where the contributions are direct or financial so that a valuation might be provided, other factors (not capable of precise mathematical statement) may well have eroded the initial value of such contributions. In a case such as the present, it is not necessary to arrive at precise mathematical valuations of the parties’ contributions - all that is necessary is to evaluate the weight that should be given to each party’s contributions relative to the contributions of the other party.”
In Pierce and Pierce [1998] FamCA 74; (1999) FLC 92-844 (Full Court) at 85,881 the Full Court said:
“In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution. In the present case that use was a substantial contribution to the purchase price of the matrimonial home: ..”
In Farmer and Bramley [2000] FamCA 1615; (2000) FLC 93-060, Kay J clearly stated two things, namely:
“68. The Court’s task is to evaluate all of the contributions from the time of the commencement of the parties’ relationship until the time of the hearing and to give such weight to such contributions as the Court thinks is appropriate in the circumstance.
69. There is nothing in the legislation that requires s 79(4)(a)(b) and (c) contributions to be measured only in terms of what either party contributed to the assets of which the parties are presently possessed.”
In Figgins and Figgins [2002] FamCA 688; (2002) FLC 93-122 (Full Court) Nicholson CJ and Buckley J observed:
“134 ... Marriage is and should be regarded as a genuine partnership to which each brings different gifts. ...”
In Williams & Williams[2007] FamCA 313 the Full Court (Kay, Coleman and Stevenson JJ), after discussing conflicting cases determined in the New South Wales Court of Appeal under the Property (Relationships) Act 1984 (NSW) which involved discussion of how initial contributions should be assessed in a property adjustment case under that legislation, said at paragraph 26:
“We think that there is force in the proposition that a reference to the value of an item as at the date of the commencement of cohabitation without reference to its value to the parties at the time it was realised or its value to the parties at the time of trial, if still intact, may not give adequate recognition to the importance of its contribution to the pool of assets ultimately available for distribution towards the parties. Thus where the pool of assets available for distribution between the parties consists of say an investment portfolio or a block of land or a painting that has risen significantly in value as a result of market forces, it is appropriate to give recognition to its value at the time of hearing or the time it was realised rather than simply pay attention to its initial value at the time of commencement of cohabitation. But in so doing it is equally as important to give recognition to the myriad of other contributions that each of the parties has made during the course of their relationship.”
There is no doubt that contributions in a financial sense overwhelmingly favour the respondent.
That being said it is a matter for the court then to weigh the contributions of the applicant over the period of the relationship. Her contributions have been identified above.
The issue in this matter is the weight to attach to the type of contributions, that otherwise over a long relationship would be deserving of significant recognition, in the context of this short relationship.
In D & D [2006] FamCA 245 Carmody J reviewed the cases on short relationships. Whilst each case turned on its own facts some relevant general propositions were expressed by His Honour:
“45.There is no authority to equalise the financial strengths of the parties nor, subject to s 75(2) (o), to correct economic anomalies by reference to notions of fault or blame. On the contrary, subsec 79(2) expressly requires the court to stay its hand and refrain from making any order for property division unless the alteration of existing property rights is just and equitable. Sometimes the relevant concepts of justice and equity will favour the status quo……….
51. Each party expects the other to contribute as much as they can in their chosen or allocated sphere. They do not keep a running record or account of who does what for the overall benefit of the family. What each partner gives or gives up is not assessed in purely monetary terms or to the extent that they have financial consequences. To paraphrase the contemporary American poet, E. E. Cummings, what is done by one alone is done for the other. The degree of effort counts for more than the actual results achieved. What matters most is whether each of them pulled their weight and shouldered their fair share of the burden.
52. In Shewring, Nygh J emphasised the importance of evaluating the efforts of the parties rather than the results they achieved. His Honour expressed the opinion that any qualitative assessment of contribution should be based on the principle that each party should make such contribution as can reasonably be expected having regard to the nature of the party's capacity, the ability of each of the parties and expectation of the spouses.
53. The alteration exercise, therefore, involves an overall assessment of the proportionate responsibility of each party for the acquisition, maintenance and improvement of the property which represents the fruits of the totality of their joint efforts in their diverse but equally valuable roles in the marriage partnership, quantifying their respective contribution to the accumulated wealth and overall welfare of the family, apportioning the gains and losses they made, compensating them for unmet expectations or lost opportunities and misplaced reliance on the strength of assurances about the permanence and stability of the relationship, and providing for their likely future financial needs.
54. Economic justice is not a fixed standard. Every case depends on its own unique facts. What is important is to somehow give a reasonable value to all the elements that go to making up the entirety of the marriage relationship. As the Full Court recognised in Ferraro making a crucial comparison between contributions through fundamentally different activities is a difficult undertaking. So too is trying to objectively assess the value of contributions to the welfare, as distinct from the wealth, of the family. The former are vulnerable to undisclosed subjective value judgments and are not readily susceptible to measurement in dollar terms.
55. Care must therefore be taken not to undervalue the indirect and homemaker contribution of a wife in a marriage of short duration.
56. As the Full Court observed in Kennon, there are:
"...a myriad of matters, large and small, which go to make up that union and differentiate it from more casual transitory relationships. It means sharing the minutiae of family life, support during good and bad times, care and intimacy . . . It - that is, marriage - is an intimate sharing of mutual but diverse talents for . . . joint benefit"……
63.Property which is not the product (or fruits) of the partnership should be treated as separate property of the one who brought it into the marriage. It is only the joint property (including separate property) which has been improved or preserved during the marriage by joint efforts or, arguably, good fortune, which should be shared though not necessarily equally between the parties. The parties should divide the fruits of the marriage partnership according to effort giving equal weight to the breadwinner and homemaker contributions. However, they should arguably only share in premarital assets to the extent that each has contributed to the maintenance and improvement of them and not otherwise.
64.In Hirst and Rosen, Nygh J expressed the view that in marriages of short duration (34 months in that case) the focus should be on the actual financial contributions made directly or indirectly to the acquisition or preservation of assets.

65.The source of this comment was a statement by the Full Court in Wardman and Hudson to the effect that where a marriage is a short one and no question arises of the care and control of children, the question of assessment of the indirect contributions made by the parties becomes less important on the basis that it cannot have the same significance as it does where parties over a long period of time keep house and raise a family.

66.Thus, in a marriage of no great length a young childless couple who make roughly equal contributions during the marriage and there are no other s 75(2) factors leading to a different result, will usually see a property order made leaving the bulk of the assets remaining with the party contributing them…………

68. Nonetheless, the duration of a marriage is expressly relevant under par (d ) of subsec 79(4) but may, of course, be highly significant in assessing contributions too, because, as I noted earlier, the shorter the duration of the marriage the more weight may be given to financial, especially initial capital, contributions and less attached to the domestic role.
69.The difficulty of reflecting substantially disproportionate financial contributions at the beginning of the marriage in orders directed to the division of the property at the end of the marriage is, as the Full Court recognised in Zyk, an acute one. It is ordinarily just and equitable that the differential be treated as significant but cases, such as Crawford, Money and Bremner, emphasise that the disparity may be eroded over time and/or by the contributions of the parties during the course of the marriage. How and to what extent this is done is a difficult problem and one which is not susceptible to precise analysis. That is largely because it depends upon a number of variables, such as the initial difference, the use subsequently made of those assets, whether or not they have increased in value, due to the efforts of the parties, or external forces, the length of the marriage, and the size and impact of other contributions made in the intervening period (cf. Pierce).”

In assessing the contributions of the applicant the court has regard to the fact that her homemaker contribution must be assessed in regard to the respondent only and that her homemaker and parenting contributions to her own children are of no weight (see Robb v Robb (1995) FLC 92-555 ).
Further the applicant was paid for her work in the respondents business for the various periods she worked there and the tasks undertaken.
It can not be argued with any conviction that the present assets of the respondent “have been improved or preserved during the marriage by joint efforts or, arguably, good fortune, which should be shared though not necessarily equally between the parties”.
This is a childless relationship of only 6 years.
At cohabitation the respondent introduced into the relationship loan account funds and the business interests that thereafter provided his income for the substantial support of the relationship. The applicant did not introduce into the relationship anything of significance.
During cohabitation the applicant undertook the primary homemaker role in support of the respondent. This no doubt greatly assisted him in his day to day working life, particularly having regard to the hours he worked. He makes no complaint as to the homemaker contribution of the applicant and readily concedes her greater contribution. Clearly that facilitated the greater focusing of his attention to his business interests without concern for the day to day obligations of house and home.
The applicant accrued superannuation by reason of her employment by the respondent in his business. The respondent accrued further superannuation over the period of the relationship. It can not be contended that the applicant made anything but a minor indirect contribution to the respondents superannuation by reason of her homemaker role.
After separation however the applicant and her children have remained in the respondent’s property to his exclusion. The respondent has continued to pay the mortgage and property outgoings without contribution from the applicant. The applicant concedes that the property has a rental value of about $650 per week. Thus the respondent has made a significant contribution to the applicant post separation that is continuing until she is required to vacate the property.
The court must weigh up the contributions on balance giving fair and proper recognition to both parties’ contributions.
In all of the circumstances the court assesses contributions to favour the respondent 95% and the applicant 5%.

Section 90SF(3) Factors

The factors are identified above. The more relevant factors are discussed below.
The applicant is aged 46 and the respondent 51. The applicant is in fair health having suffered from depression. Her present health circumstances were not the subject of any direct expert evidence. The court can only assume that they are not of significant moment. The respondent does not assert any health issues.
The respondent clearly is in a far superior position as to income, earning about $356,000 in the year to 30 June 2011, that being down from previous years due, he asserts, to economic circumstances. He has substantial assets in terms of his property at [F] and his business interests.
The applicant on the other hand is presently not working. No evidence was adduced as to why not. She has historically worked for her previous husband, the respondent and another employer post separation. However her prospects of employment are as to low paid menial, clerical or administrative duties with a commensurately modest salary.
The applicant will retain the liability to repay Centrelink. That liability is about $16,000.
The applicant does have the commitments to support herself and her children from her previous relationship. In this regard she is assisted by child support payments.
The applicant presently receives an income tested Newstart allowance and family assistance payments and has a small superannuation entitlement.
The respondent having introduced some $37,000 of superannuation into the relationship now has an accumulated benefit of about $240,000.
The parties it appears enjoyed a good standard of living during the relationship but the expectations of the applicant must be tempered by the shortness of the relationship.
The applicant, quite properly, does not assert that her capacity for employment has not been affected by the duration of the relationship.
The respondent’s contribution to the welfare of the children of the applicant has been referred to above. The applicant and her children have remained in the respondent’s property to his exclusion after separation. The respondent has continued to pay the mortgage and property outgoings without contribution from the applicant. The applicant concedes that the property has a rental value of about $650 per week. Thus the respondent has made a significant contribution to the applicant’s children post separation. That will continue until she is required to vacate the property (see Robb v Robb (1995) FLC 92-555). It is appropriate to consider these contributions of the respondent under s.90SF(3)(r).
Overall in terms of s.90SF (3) the court is satisfied that there should be an adjustment in favour of the applicant to the contributions based finding of 7.5%. That adjustment in money terms is $203,042.

Overall

Overall the court finds that the property pool should be divided as to 87.5% to the respondent and 12.5% to the applicant.
The total pool including superannuation has a value of $2,730,739. Such percentages see the applicant entitled to assets to the value of $341,342 less her contribution to the single expert fees of $11,825. The net figure is $329,517.

The applicant has in her possession or entitlement assets to the value of $43,270 including her car, partial property funds, superannuation and the contents of the Property F property which she is to retain.
The respondent is thus to pay her a cash adjustment of $286,247. Within 14 days from the date of an initial payment she is to vacate the home at Property F, leaving the property in good order and condition.
The applicant is to provide a registrable withdrawal of caveat upon payment to her of the ordered sum.

Just and Equitable

The applicant seeks a cash adjustment and the respondent has the capacity to pay same. The applicant will need to source alternate accommodation. The preliminary payment will assist in that happening, with the balance to be paid after she vacates the property.
The respondent is entitled to expect that his home will be left in good order and condition.
In all the circumstances the court considers the proposed orders to be just and equitable.

Conclusion

For the above reasons the court makes the orders set out in the beginning of this judgment.

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Foster FM

Date: 14 December 2011