SEIFERT & KOMINSKY

[2021] FCCA 318

FEDERAL CIRCUIT COURT OF AUSTRALIA

SEIFERT & KOMINSKY [2021] FCCA 318

Catchwords:
FAMILY LAW – Property – de facto relationship of approximately twelve years – relationship marked by serious allegations of family violence – assessing prospective needs in circumstances where neither party is in a strong financial position to secure sufficient accommodation – considerations of justice and equity.  

Legislation:

Family Law Act 1975 (Cth), ss.4, 4AA, 39, 44, 90RD, 90SF, 90SM(4),

90SM(3), 102NA

Federal Circuit Court Rules 2001 (Cth) Div. 13.1A rule 13.03A

Cases cited:

Bevan & Bevan [2013] FamCAFC 116

Ferguson & Ferguson (1978) FLC 90-500

Ferraro & Ferraro (1992) 16 FamLR 1

Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143

In re: Watson: ex parte Armstrong (1976) FLC 90-059

Kane & Kane [2013] FamCAFC 205

Kennon & Kennon (1997) FLC 92-757

Lee Steere & Lee Steere (1985) FLC 91-626

Mallett & Mallett (1984) 156 CLR 605

Pierce & Pierce (1999) FLC 92-844

Steinbrenner & Steinbrenner [2008] Fam CAFC 193

Taylor v Taylor (1979) 143 CLR 1

Waters & Jurek (1995) FLC 92-635

Watson & Ling [2013] FamCA 57

Applicant: MS SEIFERT

Respondent: MR KOMINSKY

File Number: ADC 3489 of 2018

Judgment of: Judge Brown

Hearing date: 9 November 2020

Date of Last Submission: 9 November 2020

Delivered at: Adelaide

Delivered on: 10 March 2021

REPRESENTATION

Counsel for the Applicant: Mrs Read

Solicitors for the Applicant: Women’s Legal Service

The Respondent: The Respondent appearing in person

ORDERS

1. The Respondent husband pay to the Applicant wife the sum of one hundred and twenty thousand dollars ($120,000.00) within forty two (42) days of the date of these orders.

2. In the event that the Applicant fails to make the payment specified in order (1) hereof, the parties do all acts and things and sign all documents necessary so as to effect a sale of the property situate at and known as B Street, Suburb C in South Australia being the whole of the land more particularly described in Certificate of Title Volume ... Folio ... (“the Real Property”) for the best price reasonably obtainable.

3. On settlement of the sale of the Real Property the proceeds of sale be paid in the following manner and priority:

   (a)All costs and expenses of sale including legal costs and disbursements, agents commission, and auction expenses;

   (b)The amounts required to discharge the mortgage and any other charges secured against the Real Property;

   (c)The amounts required to pay all municipal and water rates outstanding with respect to the Real Property;

   (d)The Applicant wife receive the sum representing 40% of the proceeds of sale; and

   (e)The Respondent husband receive the sum representing 60% of the proceeds of sale.

4. Pursuant to section 106A of the Family LawAct 1975 the Registrar of the Court at Adelaide is appointed to execute all necessary documents to give effect to these Orders if the Respondent husband defaults in executing same.

5. The Applicant wife is given leave to re-list the matter in respect of enforcement of these orders should the Respondent husband refuse or neglect to comply with them.

6. Including but without limiting the effect hereof, the husband shall retain for his sole use and benefit absolutely free from any further claim or demand of the wife:

   (a)the furniture and furnishings in his possession, power and control;

   (b)any motor vehicle in his possession;

   (c)all savings, shares and investments in his name;

   (d)any superannuation entitlement, long service leave, annual leave or other work related benefits, standing in his name;

   (e)his personal effects; and

   (f)any other real and/or personal property and/or financial resources of the husband or in the husband’s name and/or possession not otherwise specified herein.

7. Including but without limiting the effect hereof, the wife shall retain for her sole use and benefit absolutely free from any further claim or demand of the husband:

   (a)the furniture and furnishings in her possession, power and control;

   (b)any motor vehicle in her possession;

   (c)all savings, shares and investments in her name;

   (d)any superannuation entitlement, long service leave, annual leave or other work related benefits, standing in her name;

   (e)her personal effects.

   (f)any other real and/or personal property and/or financial resources of the wife or in the wife’s name and/or possession not otherwise specified herein.

8. Otherwise, all outstanding applications are dismissed and the proceedings are removed from the list of matters awaiting finalisation.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 3489 of 2018

MS SEIFERT

Applicant

And

MR KOMINSKY

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment relate to property issues referable to a de facto relationship between Ms Seifert “the applicant” and Mr Kominsky “the respondent”.  They were in a de facto relationship between August 2004 and August 2016.

2. It is a particularly difficult case.  The difficulty arises chiefly because the pool of property, potentially available for distribution, consists of only the house of modest value.  Both the applicant and the respondent are in receipt of social security and, as a consequence, each has a pressing need for secure accommodation or alternatively, a sum of capital to enable the purchase of some form of housing.

3. Given their respective circumstances neither party has any significant capacity to borrow.  Accordingly, to release capital, the real property will have to be sold.  This may mean that each of the parties will have some cash but not enough to purchase another home, with potentially serious consequences for each of them, particularly Mr Kominsky, who owns the property concerned.

4. It is also a case involving significant allegations of family violence and substance abuse, made by the applicant against the respondent and him and against her, which each has denied.  These issues have had procedural implications for how the case has been conducted, particularly in respect of cross examination, as Mr Kominsky has been self-represented.

5. Essentially, it is a case about social disadvantage.  Whatever is its ultimate outcome, it seems inevitable that both the applicant and the respondent will face a precarious financial future.  At present, whilst he is living in the property concerned, Mr Kominsky is surviving.  For her part, to her great credit, Ms Seifert has put her life back together and is living in supported accommodation.

6. In these circumstances, the Court must remain focused on what is the just and equitable outcome in the case, whilst being cognisant that there is a very real risk that in dividing what property there is, it will lead to each of the parties remaining financially impoverished and without the means to purchase a home for themselves.

7. Mr Kominsky owns the relevant property which is located at B Street, Suburb C, a suburb of Adelaide (“the B Street, Suburb C property”).  He has owned the home, in his own name, since 1997, when he purchased the interest of his former partner. 

8. They purchased the property, in 1994, for the sum of $82,500.00, providing a deposit of $22,000.00.  It is currently worth approximately $310,000.00[1] and is subject to a mortgage of about $6,000.00.  Mr Kominsky has no superannuation; and only household contents, which he values at $5,000.00.  He does not own a car.  He receives a disability support pension of $450.00 per week.

   [1]  This is the valuation provided in February of 2020, see Annexure 5 to the applicant’s trial affidavit filed 3 November 2020

9. It is uncontroversial that Mr Kominsky acquired the B Street, Suburb C property prior to commencing his relationship with Ms Seifert and he has a desperate need for accommodation due to his level of physical infirmity.  Given his circumstances, it must be the case that it will be problematic for him to arrange some alternative form of accommodation.  It is also clear that he has a limited capacity to borrow.

10. Following separation, Ms Seifert lived in crisis accommodation and then in a property owned by her mother, for which she paid a modest rent.  More recently, she has been able to acquire community housing in the form of a three bedroom home for which she pays rent of $101.00 per week.  She does not wish to disclose the address because she is fearful of the respondent.  Her social security entitlements are around $500.00 per week.

11. Ms Seifert has no assets, apart from a motor vehicle, and no superannuation.  It is her case that her relationship with Mr Kominsky was around 12 years in duration and during it she made significant financial contributions, including indirectly, in respect of the property owned by Mr Kominsky, which enabled him to pay down the modest mortgage secured against the property, as well as a homemaker and parent.

12. The parties are the parents of two children.  They are X, born in 2005, and Y, born in 2007. These children are currently in the care of the Chief Executive Officer of the Department for Child Protection and have been since 2016, and currently will remain so until each has attained the age of 18 years. 

13. One of the major motivating factors for Ms Seifert instituting these proceedings was to have the care and protection order discharged and the children returned to her to parent.  To do so, she requires stable accommodation, which in turn is likely to require some stores of capital.

14. Prior to the children’s removal, which Ms Seifert asserts was largely attributable to Mr Kominsky’s physical abuse of both her and the children and their exposure to the respondent’s family violence towards her, it is her case that she made her significant contributions, as both a parent and homemaker, in extremely arduous circumstances.

15. Given these factors, it is Ms Seifert’s position that she is entitled to a distribution of property in her favour, which can only be realised through the liquidation of the B Street, Suburb C property.  Such an outcome would potentially leave Mr Kominsky homeless and destitute, unless he is able to borrow a realistic sum of money on the property’s security, with which to pay Ms Seifert. 

16. The respondent asserts that he is currently unable to raise such a sum and that it would be fundamentally unfair to force him from his home of more than twenty five years, particularly given that he owned the property prior to cohabiting with Ms Seifert, and he alleges that she has over-stated her contributions and was frequently violent towards him and absent from the home for long periods due to her own substance abuse issues.

17. The resolution of these evidentiary issues has been complicated by the fact that the respondent has represented himself throughout much of the proceedings.  He is a disability pensioner as a consequence of being a type 1 diabetic and having residual injuries, to his neck and shoulder, relating to a motor vehicle accident suffered by him in 1997.

18. Mr Kominsky has a secondary education up to the third year of high school.  He is not a legally sophisticated person.  As I will outline shortly, in greater detail, efforts to provide him with legal assistance, through both the Legal Services Commission of South Australia and a community legal service, have been fruitless.

19. Given the significant allegations of family violence arising in the case, when coupled with the fact that Ms Seifert is the subject of a final family violence order against Mr Kominsky, the provisions of section 102NA of the Family Law Act 1975 (“the Act”) were engaged. 

20. The section provides that, in cases involving confirmed issues of family violence, the proponent of the violence in question is prohibited from cross examining its subject personally.  In such cases, any cross examination must be conducted, by a legal practitioner, acting on behalf of such a person.

21. There is no doubt that Ms Seifert is the protected person in a final intervention order made by the Port Adelaide Magistrates’ Court on 11 January 2017. Accordingly, the proviso created by section 102NA(1)(c)(ii) of the Act has been satisfied.

22. In this context, she has provided documentary evidence to indicate that she has had multiple contacts with a community based domestic violence service since August of 2013, and SAPOL have assisted her and the children to leave the parties’ formerly shared home.[2]

    [2]  See applicant’s affidavit filed 8 October 2019 at Annexure 4

23. In addition, the central theme of Ms Seifert’s case is that she has been the subject of protracted and serious family violence at the instigation of Mr Kominsky during the entirety of the parties’ relationship, which allegedly has included her being threatened with an axe and held hostage. 

24. Accordingly, this is also a case involving significant allegations of family violence and the prohibition created by section 102NA(2) applies. As such, the relevant legislation prevented Mr Kominsky from cross examining Ms Seifert directly. A formal order to this effect was made on 9 October 2019.

25. Mr Kominsky concedes that he has drunk alcohol in the past and, when he ceased alcohol use, became a heavy methamphetamine user.  He claims now to be “not much of a drinker” and to have stopped smoking methamphetamine.  The applicant has provided evidence that the respondent was apprehended by police in August of 2015, after he was found to have methamphetamine, in his system, whilst driving a motor vehicle.

26. What, if any, have been the cognitive implications, for the respondent, of his past drug and alcohol use, is beyond my competence to assess, and the respondent himself has provided no evidence in respect of these issues, claiming there is nothing wrong with him. 

27. The respondent did not present well in court, interrupting proceedings with profanities from time to time, when he disagreed with an aspect of the applicant’s evidence or with a submission made on her behalf.  I did not find him disagreeable or threatening in this regard but his behaviour was clearly inappropriate and not subject to the normal restraints, which usually arise in a formal setting such as a courtroom. 

28. Mr Kominsky did not assist either himself or the court in the presentation of his case.  It made me question how he could function or engage with any external agency if the case did not proceed as he would have envisaged.  In addition, although it is largely conjectural on my part, it provided some confirmation as to why the solicitors who had been appointed to assist him had withdrawn from the case.

29. However, the reality remains that, apart from asserting that Ms Seifert was ”not going to take his house”, Mr Kominsky was not in a position to present a coherent case and, due to the strictures of section 102NA, he was not in a positon to directly cross examine Ms Seifert in respect of any issues arising in her case. In any event, I seriously doubt that he would have been capable of asking her any forensically useful questions.

30. Mr Kominsky has not challenged the existence of a defacto relationship between him and Ms Seifert.  Nor has he ever asserted that she is out of time to make her application for a settlement of de facto property.  She commenced the proceedings on 24 August 2018, asserting that the relevant relationship ended on 31 August 2016.

31. The relevant time period, in which proceedings for the settlement of de facto property are to be commenced, is one of two years from the date the relationship in question ended [see Family Law Act 1975 at section 44(5)].

32. Mr Kominsky has not been self-represented throughout the entirety of the proceedings.  He filed a response, a statement of his financial affairs and a brief affidavit on 4 December 2018.  In this affidavit, he conceded that a de facto relationship had commenced between him and the applicant in August of 2004.

33. In addition, in his formal response, he did not raise any time limit issues.  The response was prepared by a solicitor employed by a community legal centre, who appeared on his behalf at the first court mention of the case, which was on 14 November 2018.

34. In his response, Mr Kominsky proposed the following for the court’s consideration:

    “That the respondent pay the applicant an agreed sum in full and final settlement of all issues between both parties.”

    He has not filed any further documents and has not sought any other order, either final or interim.  It is implicit from his response and what he has subsequently proposed in court that he is opposed to the sale of the B Street, Suburb C property.

35. As is the normal procedure, at an early stage of proceedings, the parties were referred to a conciliation conference, which took place on 7 January 2019.  Mr Kominsky attended the conference with his solicitor but the case could not be compromised.  Mr Kominsky’s solicitor, from the Uniting Communities Legal Centre, withdrew from the case on 16 January 2019. 

36. In these circumstances, the case was fixed for final hearing, at the earliest date then available to the court, which was 9 October 2019, when the case returned to court in early February.  At this stage, Mr Kominsky refuted any suggestion that he had been unwilling to negotiate with those representing Ms Seifert and indicated, in open court, that he was prepared to pay her the sum of $25,000.00 but no more in order to resolve the case.

37. Mr Kominsky did not comply with procedural orders, in respect of the filing of trial affidavits, for the October hearing.  Ms Seifert did.  The amendments germane to cross-examination came into effect from 11 September 2019.  On the date fixed for final hearing, Mr Kominsky appeared unrepresented.  In these circumstances, it was apparent that the trial could not proceed. 

38. The Legal Services Commission of South Australia operates a scheme, on behalf of the Federal Government, to provide representation for those affected by the provisions of section 102NA. Clearly, Mr Kominsky was one such person and he was referred for assistance from the Commonwealth Family Violence and Cross-Examination of Parties Scheme.

39. In these circumstances, the case was adjourned until late November.  On this occasion, Mr Kominsky was represented as he had qualified for assistance from the Scheme.  The case was then re-fixed for final hearing and further orders were made for him to file whatever affidavit material on which he wished to rely at the final hearing.

40. Again, Mr Kominsky did not comply with these orders.  In addition, an informal conference directed to resolving the issues between the parties, which the court directed should occur, did not bear fruit.  Mr Kominsky’s second solicitor withdrew from the proceedings on 11 May 2020.

41. Mr Kominsky has not attempted to retain another solicitor.  I have endeavoured to explain to him that there is a legislative prohibition preventing him from cross-examination of Ms Seifert and, in my view, it is likely to be in his interests to obtain legal representation, if at all possible.  He has not done so nor has he filed any further affidavit material apart from his cursory affidavit of December 2018.

42. The case was further listed for final hearing in early June of 2020, which coincided with the uncertainty arising from the Covid-19 pandemic.  Mr Kominsky does not have access to a computer and, in my assessment, it would have been futile to have arranged for the case to be heard electronically.

43. Thereafter, it was adjourned on a number of occasions, in the hope that Mr Kominsky might be able to get some form of assistance for the case.  Ultimately, the case was re-fixed for final hearing on 9 November 2020.  On this date, I ruled that the case had to proceed and that the prohibition earlier made in respect of Mr Kominsky cross-examining Ms Seifert should remain.

1. Accordingly, although Mr Kominsky has always appeared at court and has made his position in respect of Ms Seifert’s application abundantly clear – he is opposed to the sale of the B Street, Suburb C property and the maximum amount he is prepared to advance to her is $25,000.00 – the case has the quality of being an undefended proceeding.

2. It is a significant thing for proceedings to be determined in the absence of one of the parties or in circumstances in which a party is not in a position to put aspects of his or her case to the opposing party.  The court has an obligation to ensure that the parties to proceedings before it have an opportunity to participate in those proceedings. 

3. Before a person can be adversely affected by judicial order, he or she must be afforded an adequate opportunity to be heard.[3] I am satisfied that Mr Kominsky has been afforded such an opportunity. In particular, the provisions of section 102NA are mandatory in their application. It is not open to me to ameliorate them.

   [3]  See Taylor v Taylor (1979) 143 CLR 1

4. In my assessment, the issues surrounding this case are precisely those to which the legislation was directed towards correcting, namely relationships in which one party seeks to obtain his/her proper entitlements according to law, in circumstances in which that person is likely to be under a significant impediment because of prior exposure to family violence. 

5. It is Ms Seifert’s evidence that she suffers from post-traumatic stress disorder as a consequence of being exposed to family violence.   Given her background, in my view, she is exactly the sort of person the legislature had in mind when it enacted the relevant legislation.

6. The proceedings have been adjourned on a number of occasions to allow Mr Kominsky to obtain legal advice.  He has been referred for assistance from the Commonwealth funded scheme inaugurated to assist individuals in his situation and to ameliorate any potential unfairness arising from the application of the Family Violence Cross-Examination amendments to the Family Law Act.

7. Numerous directions have been made requiring him to file affidavit material in which he can outline any matters on which he wishes to rely in his case.  Although I accept that it is likely to be extremely difficult for him to personally draft such affidavit, he has not done so and has not actively sought any one to assist him in this regard.

8. Ms Seifert is entitled to have her application, for settlement of property matters, determined within a reasonable period of time, pursuant to the applicable principles of law.  As such, she needs neither Mr Kominsky’s formal imprimatur nor his cooperation to have her application determined. 

9. The obligation is on Mr Kominsky, notwithstanding the personal  difficulties confronting him, to pursue any application he wishes to make and to file affidavit material in support of it with due diligence.  The court cannot hold any application in abeyance indefinitely because of the moment the outcome of a case may have for any particular litigant.

10. The Federal Circuit Court is a court of private law.  It determines disputes, between parties, according to law.  In this case, according to the provisions of Part VIIIAB of the Family Law Act 1975, which relate to the division of property following the breakdown of a de facto relationship. 

11. The court cannot compel a respondent to engage with litigation.  It is however obliged to give a respondent the opportunity to put evidence before the court and, if he or she wishes to do so, contest any evidence relied upon by the applicant.  In my view, it is the case that Mr Kominsky has been given such an opportunity.

12. However, a respondent, whether by intransigence, disinterest or manipulation cannot succeed in denying an applicant a just resolution, according to law, to his or her application, by choosing not to take part in proceedings because they do not proceed in the manner of his or her preference.

13. Order 13.1A of the Federal Circuit Court Rules deals with the court’s authority to enter judgment against a respondent if that respondent defaults in complying with a court order or fails to prosecute any proceedings with due diligence. 

14. Pursuant to Rule 13.03A(2) a respondent is in default if, amongst other things, he or she has failed to:

    ·Comply with an order of the court in the proceedings;

    ·Produce a document as required; or

    ·Defend the proceedings with due diligence.

15. I am satisfied that Mr Kominsky has not defended the proceedings with due diligence and that he is in default.  In these circumstances, in my view, it would be flagrantly unfair to Ms Seifert, if the court did not proceed to hear her application, notwithstanding the fact that Mr Kominsky, due to multiple levels of disadvantage, is not in a position to engage as fully as he possibly could in the case or as would be in his interests to do so.

16. However, the applicant is not entitled, as of right, to the orders which she seeks.  Rather, the onus remains on her to establish to the court that the orders which she seeks, are just and equitable, according to law.  Essentially, Ms Seifert must lead sufficient evidence to establish her case to the court and persuade it that the result she proposes is a just and equitable one.  Otherwise, the court should impose the result, in the case, it considers fair according to the law and the evidence available to it.

17. The court’s pre-eminent responsibility is to ensure a just result between the parties, notwithstanding the failure of Mr Kominsky to participate fully in the proceedings.  However, in the absence of satisfactory rebutting evidence, the applicant’s affidavit material is to be accepted by the court, unless it appears inherently unreliable or otherwise unsatisfactory.

18. Given that the only asset of relevance to these proceedings is the B Street, Suburb C property, this is not a case involving controversy about the construction of the relevant pool of assets potentially available for distribution between the parties.

19. Accordingly, what controversies arise, in the case, centre on issues to do with the assessment of the parties’ respective contributions, during their relationship, as mandated by section 90SM(4) of the Act. As such, the case does not present significantly complex legal issues.

20. In this context, it is clearly Mr Kominsky’s positon that Ms Seifert’s various contributions, made during the relationship between them, are significantly less than his own, particularly given the fact that he had acquired the B Street, Suburb C property, prior to the commencement of the parties’ relationship.

21. In addition, it is his position that, during this relationship, Ms Seifert was equally, if not more so, detrimentally affected by alcohol and drug use than him and so was frequently absent from the B Street, Suburb C, property.

22. Ms Seifert does not accept these assertions.  Accordingly, these factual issues fall to the court for its determination.  Necessarily, given his situation, Mr Kominsky was not in a positon to provide either extensive or coherent evidence in respect of these issues.

23. Again, these are not unduly complex legal issues to resolve. However, in my view, this does not ameliorate the intrinsic complexity inherent in the case, which arises as a consequence of the provisions of section 90SM(3) of the Act, which prohibits the Court making an order altering the property interests of parties to a broken down de facto relationship unless it is just and equitable to make such an order.

24. As previously indicated, if the respondent is forced to vacate the B Street, Suburb C property, he is likely to experience significant difficulties in re-accommodating himself.  Given his various health issues and obvious significant level of social disadvantage, this must have implications for his long term wellbeing.  In such circumstances, his personal prognosis appears doubtful.

25. On the other hand, Ms Seifert is also significantly socially disadvantaged.  It would be fundamentally unfair to her, if she was deprived of her proper entitlements to a property settlement on the grounds of Mr Kominsky’s idiosyncratic problems, to which it seems irrefutable that, to some extent, his own conduct has contributed.

26. In the longer term, Ms Seifert wishes to utilise any capital realised to her, as a consequence of these proceedings, to provide a deposit to enable her to purchase a home for herself, which in turn may enable her to be reinstated as the primary carer of Y and X.

27. Throughout the proceedings, Mr Kominsky made it plain that he was not disposed to provide Ms Seifert with any significant sum of money to settle her claim.  It is his evidence that he has an extremely limited capacity to borrow – at best $25,000 – and no money in the bank.  In his own words “if [he] gets kicked out of [his] own house [he will] end up in the gutter”.  I do not consider this to be empty hyperbole on his part.

28. On the other hand, although Ms Seifert is significantly in debt, in respect of a variety of consumer and credit card debts, she is currently in secure housing and ostensibly is managing her life in a much more systematic and orderly way than is Mr Kominsky. 

29. In addition, she has demonstrated a capacity to obtain appropriate assistance, from external agencies, which Mr Kominsky manifestly has not, as is evident from the fact that each of his previous solicitors has withdrawn from the case and it is axiomatic that he is in dire need of some form of legal assistance.

30. Essentially, Ms Seifert has demonstrated that she is able to cope away from the B Street, Suburb C property and to forge some sort of life for herself with very little.  On the other hand, the consequences for Mr Kominsky of being forcefully evicted from the property are potentially dire. 

31. He presents as a person who is not able to cope with the exigencies of life confronting him, which in his particular circumstances are likely to be significant, indeed life-threatening.  He is not able to interact easily with agencies designed to assist people in his situation.

32. These reasons for judgment are directed to resolving these issues between the parties and ending their financial relationship together.  At the end of the day, the court is not in a position to deny Ms Seifert her hearing because of the potential difficulties arising for Mr Kominsky of it being determined.  Considerations of justice and equity cut both ways.

Background

1. The applicant was born in 1972 and has an Indigenous background.  The respondent was born in 1964.  The parties first met in the late 1980’s; the applicant was the sister of a person with whom Mr Kominsky was in a relationship at the time.

2. As previously indicated, the respondent has a third year education.  He has not been in the paid workforce since around 2000.  Prior to that time, he worked as a factory worker.  He has been in receipt of a disability support pension for many years and was in receipt of this pension when he and Ms Seifert began to live together at the B Street, Suburb C property.

3. Mr Kominsky has been involved in a number of previous relationships and has two adult children, who live in City D, Queensland.  They are in their late 30’s.  What assistance, if any, they could provide their father and whether they would be willing to help him, are matters unknown to me.

4. Ms Seifert presented as a candid person in the witness box.  She has no significant work history or any specific qualifications.  She is not in a relationship at present.  She has been prescribed anti-depressant medication, since 2016, which she continues to take.  It is her evidence, which I accept, that she is psychologically vulnerable as a consequence of suffering post-traumatic stress, which she attributes to the respondent’s violent behaviour towards her.

5. Ms Seifert has deposed that she has been the object of serious family violence since 2008.  The violence included being punched and kicked by Mr Kominsky.  She has lost a number of teeth as a result of this violence.  Ms Seifert has not provided extensive details of the violence to which she has been subjected in her affidavit material.

6. I am not critical of her in this regard and do not believe that it affects her overall credibility.  Rather, I am of the view that she prefers not to dwell on these matters and due to various aspects of disadvantage, is not a person who can be characterised as a fluent historian.  However, she has attached to her affidavit material a more than adequate complement of documents which provide collateral support for her account of violence.

7. These include letters from Mr Kominsky’s criminal solicitors, which indicate he was charged with assault in 2015 and pleaded guilty to the charge.  In addition, as previously indicated, Ms Seifert has provided documents which establish that Mr Kominsky was charged and convicted of driving with methamphetamine in his system in August of 2015.

8. More significantly, she has provided a letter from the services manager of Homeless Agency, which indicates she and X and Y were referred for assistance and accommodation on a number of occasions between August 2013 and May 2015.  In addition, she has provided a report dated 29 March 2016, which was provided by the Domestic Violence Service at the request of Families SA.[4]

   [4]  See applicant’s trial affidavit filed 3 November 2020 at Annexure 4

9. The report is thirteen pages in length and covers the period from 25 January 2010 until 21 March 2016.  It details Ms Seifert’s involvement with several domestic violence agencies and police over this period, during which she has been provided with crisis accommodation; and she reported being assaulted by Mr Kominsky, including having been knocked unconscious by him. Ms Seifert has reported to various agencies that Mr Kominsky has subjected her to verbal and emotional abuse and has significant substance abuse issues.

10. The records also indicate that, on occasions, Ms Seifert has indicated to police her complaints have been over-stated and she has wished charges laid against Mr Kominsky to be withdrawn. None of the records provided to me have caused me to question the appropriateness of the order made under section 102NA of the Act. It seems probable that the parties were enmeshed together in their largely dysfunctional relationship.

11. I accept that victims of family violence frequently feel compelled to understate the extent of violence suffered by them, particularly when they do not have any obvious alternative forms of accommodation.  In her evidence, along with believable evidence regarding Mr Kominsky’s drug use – “he smoked it in a little glass pipe” – Ms Seifert deposed that she had had some happy family times with Mr Kominsky.

12. Ms Seifert has deposed that she fled the B Street, Suburb C property in February of 2016, with the children, when Mr Kominsky attempted to kill her.  Initially, she lived with her mother but apparently suffered a mental breakdown which she attributes to the stress of living with the respondent.  This breakdown caused her to come to the notice of police, who took her to hospital for assessment.  A diagnosis of psycho-social situational crisis was made.

13. SAPOL reported their involvement to Families SA and indicated that Ms Seifert was suffering a drug-induced psychosis, a diagnosis which she disputes.  Nonetheless, at this stage, X and Y were placed in the care of the Department.  Ms Seifert then elected to return to the B Street, Suburb C property, as she had done in the past.  At this stage, she had the protection of an interim family violence order obtained on her behalf by police.

14. Although it is the applicant’s position that there was no justification for X and Y to be removed from her care, it is apparent to me that the violence in the parties’ relationship was both serious and endemic, otherwise there would have been no departmental involvement.

15. After her return to the B Street, Suburb C property, it is Ms Seifert’s evidence that she was held hostage by Mr Kominsky, in the property, in June of 2016, and again threatened that she would be killed.  Police again intervened.  Mr Kominsky describes this evidence as a “load of crap”.

16. It is his evidence that Ms Seifert had her own alcohol problems during the relationship and was frequently away from the home, drinking with her relatives.  There is no evidence to support his evidence in respect of these allegations, apart from the oral evidence provided in court.  Certainly, he has not provided any documentary evidence, in contrast to the applicant.

17. I concede that it is not beyond the bounds of possibility that some of the criticisms made by Mr Kominsky of Ms Seifert have some foundation.  She concedes that she did drink during the relationship but it is her evidence that she stopped in 2015.

18. However, there can be no doubt that Mr Kominsky was the major protagonist of the violence in the parties’ relationship and, from time to time, that he had a dependence on both alcohol and methamphetamines.  As such, it must have been difficult living with him, not to say, at times, extremely dangerous.

19. Given the strength of Ms Seifert’s evidence and the comparative lack of evidence provided by Mr Kominsky, it beggars belief that he was the victim of the applicant’s behaviour, as he has attempted to convey in his evidence to the court.  In this context, I did not accept much of Mr Kominsky’s evidence, some of which was glib and self-serving.

20. It is Ms Seifert’s evidence that, following the end of her relationship with Mr Kominsky, she was stressed and mentally unwell.  As a consequence, it took her some time to recuperate and it was only in late 2018 that she was able to consult the Women’s Legal Service in respect of her possible claim against Mr Kominsky.  I accept this evidence and in particular, that the removal of X and Y was particularly emotionally wrenching for her.

21. In the period since she separated from Mr Kominsky, Ms Seifert has made steps to re-organise her life.  In particular, she has been working with the Department of Child Protection to have the children returned to her care.  It is in this context, she has commenced these proceedings, and it is her position that she wishes to be provided with a sufficient sum to be able to put a sizeable deposit on a home, which she can occupy with the children.

22. With the Department’s assistance, in early September of 2020, she obtained a six month lease on a three bedroom home.  X was returned to her care in May of 2020.  Y was initially reluctant to make the transition but did so in September.  I accept that Ms Seifert has made great progress in turning her life around, which, of course, is to her great credit.

23. Regrettably, Mr Kominsky is not in a similar position.  He did not present well in court.  As indicated above, he made frequent grumbling interjections during the case of bullshit fucking crap and the like.  His truculence was neither frightening nor intimidating (at least to me) and left me with the impression Mr Kominsky was a ruin of a man.

24. Although it may be the case that he has ceased his previous level of substance abuse, there is no evidence to support his assertions in this regard.  I accept his evidence that his health is currently severely compromised and will remain so.  In addition to his diabetes, he suffers from depression, carpal tunnel syndrome and poor eye sight.

25. Although Ms Seifert has stabilised her financial position and is coping better with the exigencies life throws at her, she is far from being financially secure.  On separation, she had $2,666.00 in superannuation, which she has accessed to pay bills. 

26. Currently, she owes $5,797.00 on her credit card and has two short term personal loans to Cash Converters and E Finance, which amount to around $1,500.00.  She has outstanding utility bills of $1,203.16.  She values her car at $1,000.00 and her furniture and personal effects at around $12,000.00.

27. Ms Seifert’s solicitors have commissioned an expert valuer to value the B Street, Suburb C property, which occurred in early February of 2020.[5]  This report indicates that the property previously changed hands in 1994 for the sum of $82,500.  This accords with Mr Kominsky’s recollection.

    [5]  Ibid at Annexure 5

1. At the time of the purchase of the property, Mr Kominsky was in a relationship with Ms F.  They were in a position to advance a deposit of $22,000.00 from their savings, as both were in paid employment at the time.  The remainder was borrowed.  They separated in 1997. 

2. In Mr Kominsky’s words, Ms F “just walked away”.  This is not consistent with his original affidavit, which states that he purchased Ms F’s interest in the property.  However, what sum was paid to her he is not now able to say.  At the time, he estimates there was approximately $79,000.00 owing on the mortgage.

3. Mr Kominsky continued in employment until his car accident in 2000.  He received a compensation payment of $57,000.00, some of which he paid towards the mortgage.  How much he is not now able to specify.  He has been a disability pensioner since the accident.  The mortgage payments were around $550.00 per month.

4. Accordingly, I accept that Mr Kominsky brought some capital into the relationship, in the form of the capital contained in the B Street, Suburb C property.  What was the exact extent of this contribution is not clear to me.  The property was also furnished.  I also accept that Ms Seifert did not bring any significant items of property into the relationship.

5. It is Mr Kominsky’s evidence that, during the parties’ relationship the required mortgage payments were directly debited from his bank account.  Ms Seifert accepts this but it is her position that, from time to time, there was insufficient funds in the account and she regularly paid arrears.  This does not seem improbable to me.

6. In addition, it is her evidence that her social security payments were utilised to pay household bills, maintenance expenses and utilities at the B Street, Suburb C property.  Given the parties’ social security entitlements were roughly equal, this appears highly likely.

7. It is also Ms Seifert’s evidence that she performed the larger proportion of cleaning and cooking in the home and provided the majority of care for X and Y, after they were born.  In terms of house maintenance, she asserts that the only task performed by the respondent was the mowing of the lawns.

8. In her oral evidence, Ms Seifert deposed that Mr Kominsky frequently used his social security entitlements to buy grog and to place bets.  She acknowledges that she herself “might have had a drink too”.  However, she asserts that she stopped drinking in 2015.  Accordingly, I do not think it can easily be established that one party has been more prone to waste marital assets than the other.

9. The B Street, Suburb C property is subject to a charge in favour of the Legal Services Commission.  This relates to legal aid provided to the applicant in respect of his various police charges.  Those advising the applicant have not been able to ascertain the extent of the charge and the respondent does not know.

10. Currently, Mr Kominsky has deposed that an amount of $6,000.00 is outstanding on the mortgage.  It is likely that the larger proportion of this reduction occurred during the twelve years of the parties’ relationship with one another.

11. As such, I am satisfied that Ms Seifert has made a significant indirect contribution to the mortgage as well as other direct financial contributions, which benefited both the respondent and the parties’ children.

12. I also accept that it was Mr Kominsky who brought the B Street, Suburb C property into the relationship and without it, the prospects of Ms Seifert being able to acquire a similar proprietorial interest, given her situation, must be regarded as slight. 

13. Accordingly, Mr Kominsky’s contribution, in this regard, must be regarded as being a significant one.  Clearly, this is a significant plank in his case, which is encapsulated by the view often advanced by him, during the proceedings, that the home is his property.  I can appreciate why he would hold such a view.

14. It would appear to be his position that this contribution is one which merits special recognition, given its overall significance in the parties’ particular financial basis, given that, without it, it is highly probable that there would be little or no property available now for division between the parties. 

15. Mr Kominsky is not in a position to put his case in this formal legal way but this is what I take it to be as a consequence of his frequent statements, made as the case unfolded, that he regards the B Street, Suburb C property as being his house because he owns it and had it before Ms Seifert came along or words to this effect.

16. The valuation report indicates that the B Street, Suburb C property suffers from a number of defects, which include cracks in internal walls, missing tiles, and damaged or missing glass panels.  The rear yard is described as being heavily littered.  It seems incontrovertible that Mr Kominsky is not currently taking a great deal of care of the property and it is depreciating in value.

17. In addition, in his evidence he conceded he had not paid the rates due on the property for a number of years.  The rates are currently around $800.00 per annum and the amount outstanding in arrears, according to Mr Kominsky, is around $3,000.00. 

18. I doubt that the relevant local authority would be prepared to hold the issue of the overdue rates in abeyance for an indefinite period.  Accordingly, Mr Kominsky’s continued tenure on the property may be tenuous and it is a diminishing asset, due to his neglect of it in both a financial and practical sense.

The legal principles applicable

1. Pursuant to section 39 of the Act, this court has jurisdiction conferred upon it in respect of what are termed de facto financial causes. This expression is defined by section 4, to include proceedings in respect of the distribution, after the breakdown of the de facto relationship, of the property of the parties or either of them. 

2. Part VIIIAB of the Act deals with financial matters relating to de facto relationships. In particular, pursuant to section 90RD, the court has authority to make a declaration about the existence of a de facto relationship, including when that relationship ended, and pursuant to section 90SM, the authority to alter the proprietary interests of the parties to a de facto relationship, after the breakdown of that relationship.

3. The definition of de facto relationship is defined in section 4AA(1) of the Act as follows:

   “(1)  A person is in a  de facto relationship with another person if:

   (a)    the persons are not legally married to each other; and

   (b)the persons are not related by family (see subsection (6)); and

   (c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.”

4. Given the extent of the pleadings in the matter, I am satisfied that there was a de facto relationship between the parties, in this matter, between August 2004 and 16 August 2016 and I will make a declaration to this effect pursuant to section 90RD.

5. Pursuant to section 90SM(1) the court is authorised to make such order as it considers appropriate in order to alter the interest of the parties to a de facto relationship in relevant property. 

6. The expression “property” is defined in section 4(1) in relation to the parties to a marriage or either of them as meaning “…property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion.”

7. Pursuant to section 90SM(3) the court is actively prevented from making an order altering proprietorial interests, unless it is satisfied that it is just and equitable to do so in all the circumstances prevailing. This follows from the use of the prohibitive words “must not” in the relevant section.

8. Section 90SM(4) provides the mechanics of how a court is to make an order altering de facto property interests. It provides seven matters [in paragraphs (a) – (g)] to be considered, as relevant.

9. Paragraphs (a); (b); and (c) categorise contributions made by de facto partners, which are relevant.  Paragraph (d) directs the court to take into account the effect of any order upon the earning capacity of either party to the de facto relationship concerned. 

10. Paragraph (e) directs the court to consider a list of matters contained in section 90SF(3), which are germane to maintenance or the prospective positions of the parties concerned by reference to their respective financial resources, means and needs.

11. Finally, paragraphs (f) and (g) apply to child support and previously made parenting orders, as relevant.  There is some overlap between these various provisions and not all will be applicable in every case. 

12. Until recently, the position in respect of the process to be applied to the resolution of both de facto and matrimonial property cases was said to be well-settled, as it required the application of a preferred approach.  This approach entailed a four step process, described by the Full Court as follows:

    ·       identification and valuation of the property of the parties;

    · identification and evaluation of contributions to the property (including property no longer owned by the parties) – the contribution phase – section 90SM(4)(a) to (c);

    · identification and assessment of the various matters in section 90SM(4)(d) to (g) including to the extent they are relevant, the matters in either section 90SF(3), as applicable – the prospective needs phase; and

    ·       considerations of justice and equity.[6]

    [6]  See Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143 at 78,386 [39] and Bevan & Bevan [2013] FamCAFC 116 at [60]

13. Contributions arising pursuant to section 90SM(4)(a), (b) & (c) (the so-called second step) can be broadly categorised under two headings. The first kind is contributions to the property: financial contributions and non-financial contributions, made directly or indirectly, by or on behalf of a party to the de facto relationship to the acquisition, conservation or improvement of any of the property.

14. The second kind is contributions to the welfare of the family: in the words of the section, “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.”[7] 

    [7]  See Family Law Act s 90SM(4)(c)

15. It is clear from the authorities that this second kind of contribution must be given appropriate weight and is not to be treated as a token matter or as a contribution which is inherently less valuable or important than a financial contribution to property.

16. Section 90SM(4)(e) mandates the court to have reference to the matters listed in section 90SF(3)(e) of the Family Law Act 1975.  In the main, the factors there listed deal with each of the parties’ prospective needs (the so-called third step). 

17. Pursuant to section 90SF(3)(r), the court is entitled to take into account “any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account”.  A number of Full Court authorities have utilised this provision to ensure that proper regard is had to a variety of considerations in order to ensure a just and equitable outcome in property proceedings.

18. The “overriding requirement” of section 90SM is that considerations of justice and equity should inform the process envisaged therein. The exercise I must undertake is not a “process of social engineering”[8] or of equalisation of assets or financial resources. 

    [8]  See Waters & Jurek (1995) FLC 92-635

19. Considerations of this type inform the so-called fourth step, as well as providing the determination as to how the court should approach issues such as notional property.  The court must make the orders it considers just and equitable.

20. In Stanford the High Court warned of the potential danger of a court conflating its responsibilities arising under section 79(2) & 79(4) [the equivalent provisions to sections 90SM(3) & (4) in the de facto relationship context]. The court’s fundamental responsibility is to make a just and equitable order.  The High Court said as follows:

    “It will be recalled that s 79(2) provides that ‘[t]he court shall 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’. Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.

    The expression ‘just and equitable’ is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.” [9]

    [9] Ibid at [35] – [36]

21. Essentially, the court must be careful not to neglect its obligation to consider whether it is just and equitable to make a particular property order in respect of some item of property in the overall circumstances of the case concerned. 

22. As the High Court indicated, it is not possible to delineate, with any degree of precision, what such circumstances may be and when it is not just and equitable for a court to embark upon a process of altering a person’s pre-existing interest in a piece of property according to the process envisaged in section 90SM(3).

23. Although he has not specifically articulated it as such, due to his lack of legal acumen, it is implicitly Mr Kominsky’s position that it would not be fair to him to alter his legal interest in the B Street, Suburb C property because he alone owns the property; he owned it prior to meeting Ms Seifert; he has made significant direct financial contributions towards it; and if he is forced to leave it, his prognosis, so far as his future quality of life is concerned, must be regarded as dire.

24. In Bevan, the majority of the Full Court (Bryant CJ and Thackeray J) said as follows:

    “Although the High Court did not disapprove the four step process, we accept it was not approved either...However, the High Court’s decision serves to refocus attention on the obligation not to make an order adjusting property interests unless it is just and equitable to do so.

    …

    Stanford will also serve as a reminder that the four step process ‘merely illuminates the path to the ultimate result’.”[10]

    [10]  See Bevan (supra) at [65] and [71]

25. From this, I take it, the four step process remains a valid approach in the vast majority of cases, provided care is taken not to overlook the requirement that all orders altering property interests in proceedings arising under the Act be just and equitable. The ultimate goal of proceedings under Part VIIIAB of the Act is a just and equitable outcome.

26. In this context, I respectfully adopt what was said by Murphy J in Watson & Ling, namely:

    “As a result of those matters, the Court’s approach to ss. 79/90SM may be less compartmentalised than what a strict or unthinking adherence to four (or three) ‘steps’ might otherwise reveal. The task is essentially holistic; is it just and equitable in the particular circumstances of the particular relationship or marriage under consideration to make an order and, if so, its terms must similarly meet that criteria. Of course, holistic though the approach is, it must be referenced to what the Act requires and care must be taken to ensure that the court’s reasons make that clear.” [11]

    [11]  Watson & Ling [2013] FamCA 57 at [13]

27. The task, set out for me in this case, requires me to balance and compare contributions, which are by their nature different, within the framework of an idiosyncratic de facto relationship of twelve years in duration.  Many contributions in a de facto relationship, such as being a homemaker, do not result in the direct acquisition of assets.  They are also difficult to value.  The discretion I have is a wide one.  It is however not an exercise in “palm tree justice”.[12]

    [12]  See In re: Watson: ex parte Armstrong (1976) FLC 90-059 at 75,270

28. On the one hand, I must make some sort of assessment of the weight to be given to Mr Kominsky’s initial contribution of the B Street, Suburb C property, without which, it is probable there would be no property to distribute between the parties at all. 

29. In addition, I must make an assessment of Ms Seifert’s contributions as a homemaker and parent in what was clearly an at times difficult and turbulent relationship.  The relationship was one which was characterised by extreme family violence and substance abuse as a consequence of which Ms Seifert and the children had to flee from the home.

30. However, as I understand the applicant’s case, it is not her formal position that Mr Kominsky’s conduct, during the parties’ relationship, rendered the performance of her necessary domestic and other contributions, more onerous within the parameters considered by the Full Court of the Family Court in the case of Kennon & Kennon.[13] Certainly, no specific submission has been made to this effect on her behalf.

    [13]  Kennon & Kennon (1997) FLC 92-757

31. As I alluded, in the introductory portion of this judgment, one of the great difficulties arising in this case is that each of the parties’ prospective financial requirements are extensive in nature.  Neither of them is currently in a stable financial position and, regardless of what is the outcome of this case, this will remain the case.

32. Simply put, the property available in this case will fall far short of supplying what both Ms Seifert and Mr Kominsky require for the remainder of their lives – somewhere modest but stable in which to live.  At present, given his various levels of disability and his general intransigence to authority and reluctance or inability to access assistance, these needs are likely to be far more pronounced so far as Mr Kominsky is concerned.

33. This poses the imponderable question arising in the case – is it equitable to potentially evict Mr Kominsky, from the B Street, Suburb C property, given the severely deleterious consequences this must have for him personally, notwithstanding the fact that he is largely the author of his fate but, at the same time, is to be regarded as a person suffering a severe level of societal disadvantage and therefore entitled to some modicum of compassion.

34. On the other hand, Ms Seifert is also disadvantaged but due to her own efforts, is doing far better than is Mr Kominsky in her approach to life and all its exigencies.  This is due to the fact that she has greater insight than he does; a greater capacity to moderate her behaviour; and a greater facility to access sources of assistance. 

35. This in turn poses another question – is it just and equitable that Ms Seifert should be deprived of what are her proper entitlements, made over a de facto relationship of some twelve years, which produced two children, whom she continues to support and in which her contributions were made in extremely arduous circumstances, because Mr Kominsky has brought himself to such a calamitous point in his life.

Discussion

1. In Lee Steere & Lee Steere,[14] the Full Court of the Family Court observed that any order which “would deprive a party substantially of what he or she is entitled to by reason of contribution would not normally be considered just and equitable.”  

   [14]  Lee Steere & Lee Steere (1985) FLC 91-626 at 80,077

2. That is the difficulty of the position advocated by Mr Kominsky. Ms Seifert would receive no distribution of concrete assets to her in recognition of her various contributions during the parties’ relatively long relationship. I do not consider that this would be a just and equitable exercise of the discretion created by section 90SM(3).

3. It would be unfair and unjust, so far as Ms Seifert is concerned, if she was deprived of the opportunity of having her relationship contributions assessed and material effect being given to them on the basis of the drastic potential consequences of this for Mr Kominsky.  In all these circumstances, I propose to follow the stepped pathway mapped out above.

Step One – the Pool of Assets

1. To all intents and purposes, there is only one asset available to be allocated between the parties.  This is the B Street, Suburb C property, which has an agreed value of $310,000.00.  It is subject to a modest mortgage of $6,000.00 and arrears of rates of approximately $3,000.00.  Finally, it is subject to an indeterminate charge, in favour of the Legal Services Commission, which relates to the provision of legal aid to Mr Kominsky.

2. Accordingly, it is axiomatic that the pool is a modest one and, as such, unlikely to be able to provide each of the parties with sufficient capital to provide some form of long term accommodation.  This is the great dilemma of the case, given that Mr Kominsky is in need of such security and brought the B Street, Suburb C property into the relationship.

3. Each of the parties has some debts.  In Mr Kominsky’s case, there are the rates and his outstanding liability to the LSC of SA.  In Ms Seifert’s case, she has consumer debts and utilities bills amounting to around $8,500.00.  Again, it would seem to be the case that the parties will only be able to clear these debts, modest as they are, if some form of capital is liberated from the B Street, Suburb C property.

4. So far as Mr Kominsky is concerned, he seems to lack any motivation to pay the rates concerned and is prepared to wait until either the property is sold or he passes from this life to clear the debt owed to the LSC.  It would also seem to be the case that, given the modest extent of the mortgage, he is able to manage its regular payment by periodic deductions from his bank account.

Step Two – Assessment of Contributions

1. The relationship between the parties was one of about twelve years in duration and produced two children.  On any view, this is a significant period of time and, as a consequence, it is probable that each of the parties made important but different contributions during this period.

2. The parties’ relationship was obviously a turbulent one, marked by regular separations and mutual allegations of improper conduct and violence.  However, in my view, the parties constituted a family in which Ms Seifert utilised her income for common family purposes, including buying household supplies, which were consumed by both Mr Kominsky and Y and X.

3. It is also a significant matter that Mr Kominsky brought the B Street, Suburb C property into the relationship.  However, it is difficult to quantify what was the value of that asset in 2004 and what was outstanding in respect of the mortgage at the time.  Certainly, much of the property’s increase in value can be attributed to market forces and it must also be the case that the burden of paying the mortgage down has eased over time due to general inflationary economic forces.

4. I accept, in broad terms, Mr Kominsky, after his separation from Ms Fs, retained a reasonable amount of equity in the B Street, Suburb C property, which was increased when he utilised some of his compensation money to pay down the mortgage. 

5. In addition, I accept that, during the parties’ relationship, it was his social security payment that was largely utilised to pay the recurrent mortgage payment which was a relatively modest one.  Accordingly, in direct financial terms, he has made a significant contribution towards the acquisition of the B Street, Suburb C property.

6. Clearly, if Mr Kominsky had not owned the property at the commencement of the parties’ relationship, there would be no property to divide between the parties now.  As such, I accept that the acquisition of the property was a reflection of Mr Kominsky’s employment endeavours which were accomplished before he commenced the relationship with Ms Seifert.  In contrast, she was not in a position to bring any significant asset, in capital terms, into the relationship.

7. The essential question arising for the Court being how is this amorphous contribution to be assessed now and in particular, does it warrant some form of special recognition in the court’s overall deliberations and, if so, what form should it take, particularly given the length of the relationship in question and the fact that Ms Seifert’s many contributions are not easily quantifiable in dollar terms.

8. One of the essential tasks for the court, arising under section 90SM of the Family Law Act is to weigh and assess contributions, which are essentially different in nature and, as such, are not always amenable to ready comparison.  In this context, I must be careful not to undervalue the homemaker role, which does not always provide a clear economic output, such as that generated by a wage earner.[15]

   [15]  See Ferraro & Ferraro (1992) 16 FamLR 1 at 38 and Mallett & Mallett (1984) 156 CLR 605

9. In the past, it has been suggested that disparities in capital, at the outset of a marital or de facto relationship, become less significant as the duration of the relationship concerned increases.  It was sometimes said that such contributions were liable to erode over time.  The Full Court has not endorsed such a formulation.

10. In Pierce & Pierce,[16] Ellis, Baker & O’Ryan JJ made reference to several of the relevant authorities.  In the case, their Honours said as follows:

    “In our opinion it is not so much a matter of erosion of contribution but a question of what weight should 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 both of the husband and the wife.  In considering the weight to be attached to the initial contribution, in this case the husband, regard must be had to the use made by the parties of that contribution.

    …there is no principle that the length of the marriage leads to a likelihood that other contributions will outweigh or weigh equally with ‘a particular contribution’.  It is a matter of assessing the contributions of all relevant kinds in each case to arrive at an outcome, which is both appropriate and just and equitable.  In some cases particular contributions may be outweighed or equalled by other ones.  In other cases particular contributions may be so disproportionate to other contributions as to merit special recognition.”

    [16]  Pierce & Pierce (1999) FLC 92-844 at page 85,811

11. I am not convinced that the fact Mr Kominsky owned the B Street, Suburb C property, at the commencement of the relationship, can be regarded as a contribution so disproportionate to the contributions made by Ms Seifert during the de facto relationship which ensued, as to now warrant special recognition.

12. I reach this conclusion on the basis that the amount of capital contribution attributable to Mr Kominsky is unclear.  It is also evident that Mr Kominsky has had ample time to address this issue.  It would not be fair to Ms Seifert to allow Mr Kominsky to take advantage of a gap in the evidence which is attributable to his conduct.

13. In addition, I accept that Ms Seifert’s contributions as both a parent and homemaker must also be regarded as significant and, as such, I must be careful not to undervalue these contributions by an unreasonable focus on the provenance of the property in question. 

14. On balance, when the value of the property is now considered, it seems more likely than not that the capital brought in by Mr Kominsky was not a large amount and over the twelve years of the relationship, the mortgage was gradually whittled down, by regular payments, whilst inflationary forces increased the value of the property concerned.

15. Given Ms Seifert must be regarded as having made direct financial contributions to the family, during the twelve years of the relationship, by buying food and the like, it is clearly the case that she should be taken to have made analogous indirect financial contributions towards the payment of the mortgage, in tandem with her homemaking and parenting contributions. In all these circumstances, I assess the parties’ various contributions, arising under section 90SM(4), as being essentially equal.

Step Three – The parties’ prospective needs – section 90SF(3)

1. I am now required to consider the various matters set out in section 90SF(3) and in particular to consider whether any further adjustment should be made in favour of the parties. The section 90SF(3) factors are mainly, but not only, prospective in nature.

2. Paragraph (a) – Mr Kominsky was born in 1964.  Accordingly, he is aged fifty seven years.  I accept that he is not in good health due to his diabetes; carpal tunnel syndrome; sleep apnoea; and injuries to his neck and shoulder.  I suspect that it is likely he suffers from other disabilities.

3. This is a major consideration favouring Mr Kominsky.  Due to his disabilities he has sore need of a secure and familiar place in which to live.  He is comfortable in the B Street, Suburb C property, which has been his home for the past twenty five years or so.  As a consequence of his temperament and how that manifests itself in his presentation, it will be difficult for him to access any alternative form of accommodation easily.

4. As such, if the property has to be sold, it will be difficult for him to find some other source of accommodation and this will most probably have dire consequences for him personally.  There is a very real risk he will find himself homeless as a consequence of these proceedings, which obviously will have dramatic implications for his already severely compromised health.

5. Ms Seifert was born in 1972 and is forty eight years of age.  She suffers from depression, which is medicated.  Otherwise her health is reasonably good.  She has also, to her great credit, put any drug and alcohol issues behind her. 

6. More significantly, the evidence indicates that she is able to access support from outside sources, which have enabled her to gain her current accommodation and secure the return of Y and X to her care.  Essentially, she is coping with her straitened circumstances, whilst Mr Kominsky life stands on a knife edge, due to his lack of insight and inability to seek out support.

7. Paragraph (b) – Mr Kominsky is a disability pensioner.  It is unlikely that he will ever be able to return to the paid workforce.  I am satisfied that he currently has no capacity or qualifications to enable his financial self-support.

8. Ms Seifert is in a similar position.  It seems improbable that she will be able to engage in the workforce in the reasonably foreseeable future.  Given her age and lack of physical disability, she is in a marginally better position than Mr Kominsky.

9. Paragraph (c) – Ms Seifert has recently resumed the care of X (from May 2020) and Y (from September 2020) following her securing a lease of a three bedroom house on a yearly basis.  X is fifteen years of age and Y is thirteen.  They are financially dependent on their mother.  This is a significant factor in favour of the applicant.

10. Paragraphs (d) (e) & (f) – these paragraphs do not seem to have any high degree of relevance.  Each party received a Commonwealth funded benefit and will be likely to continue to do so.  Neither has any superannuation.

11. Paragraph (g) – the end of the parties’ relationship placed Ms Seifert in a situation of uncertainty regarding where she was to live on a permanent basis.  To her great credit, she has resolved that issue.  The same dilemma now potentially confronts Mr Kominsky.  However, he is likely to lack the capacity to grapple with it.

12. It is difficult to differentiate between the respective positions of the parties.  Both are significantly disadvantaged in both economic and societal terms.  Each of them require a secure and reasonably priced place in which to live.  It seems that the economic resources available to them directly will be inadequate to house them both.

13. In terms of either of them being able to borrow a significant sum, it would be my view that neither of them would be considered a good prospect for mortgage finance.  This is particularly so of Mr Kominsky.  Accordingly, if the B Street, Suburb C property is sold, it is likely that each party will struggle to be able to purchase some form of alternative accommodation.

14. As such, given Mr Kominsky’s current circumstances, when compared to those of Ms Seifert, this burden is likely to fall far more heavily on him than her for the foreseeable future – she has a lease, on accommodation which she can afford; he has no such prospects.

15. Paragraphs (h) (i) (j) (k) (l) (m) (n) (o) (p) (s) & (t) – these considerations are not specifically relevant in the present case or have received attention under other headings.

16. Paragraph (q) – Ms Seifert is entitled to an administrative assessment of child support for X and Y.  At best, this may result in the modest garnishment of Mr Kominsky’s disability support pension.  As such, the major part of the responsibility for supporting the children will be on Ms Seifert.

17. Paragraph (r) – in Ferguson & Ferguson [17] the Full Court of the Family Court held that section 75(2)(o) [the marital equivalent of section 90SF(4)(r)] was to be read ejusdem generis, with the other matters listed in section 75(2) [section 90SF], which enabled the court to bring into account “conduct which has an economic significance in the parties’ dealing with each other or the property in dispute.”

    [17]  See Ferguson & Ferguson (1978) FLC 90-500 at 77,607

18. In my assessment, it is clear that, if the B Street, Suburb C property is sold, the adverse consequences of this will fall more heavily on Mr Kominsky than on Ms Seifert, given she currently has accommodation.  It is difficult to see how he would be able to re-accommodate himself if this occurs.  As I have previously observed, if rendered homeless, such an outcome for him is likely to be dire.

19. True it is, if the property is sold, both Mr Kominsky and Ms Seifert would receive a significant cash sum, which will cushion, to some degree, the adverse implications for the former of having lost his home of the past twenty five years or so and make life financially more secure for the latter. 

20. However, any such sum to be received by Mr Kominsky is likely to be inadequate to enable him to purchase some alternate form of accommodation and, as previously indicated, I have grave reservations about his potential attractiveness to any commercial lender, even if I could be confident that he would apply for mortgage finance, to bridge any such shortfall.

21. The same may also be true for Ms Seifert.  However, she is more likely to be able to access some form of professional support to allow her to approach a low income lender than is Mr Kominsky.  The same issues surround the prospect of him being able to apply for a reverse mortgage to enable him to provide a lump sum payment to Ms Seifert.  In any event, none of these issues were canvassed in the proceeding before me.

22. Accordingly, at the end of the day, the question remains, is the potential outcome of these proceedings so dire and draconian, from Mr Kominsky’s perspective, that the court should not countenance the very great likelihood of the B Street, Suburb C property being sold, on the basis that this would not be just and equitable.

23. In my view, such an outcome would be intrinsically unfair to Ms Seifert and would render her extensive contributions essentially nugatory, which, of itself, would be unjust and inequitable.  A balance must be struck.  I concede that it is not easy for such a balance to be struck in this particular case, given the straitened circumstances of each of the parties.

Conclusions

1. Overall, I have reached the conclusion that the parties’ respective contributions are to be assessed as being equal. Given Mr Kominsky’s greater age, more compromised health and the more stringent implications of this property settlement from his perspective, I propose making a modest allowance in his favour on account of section 90SF(3) factors.

2. The next matter to be considered is what form this decision should take in practical terms. The usual approach is to allocate a percentage entitlement of the property to each party concerned following the application of the applicable criteria delineated in section 90SM. However there is no strict obligation to do so. [18]

   [18]  See Kane & Kane [2013] FamCAFC 205 per Faulkes DCJ

3. As Coleman J remarked in Steinbrenner & Steinbrenner,[19] notwithstanding the utilisation of percentages there must always be, in every property case, a point at which the court must make the leap from words to figures.  I am at such a point in this particular case, at which I must determine how much each party is to get, in practical physical terms, as a just and equitable outcome in the case.

   [19]  See Steinbrenner & Steinbrenner [2008] Fam CAFC 193 at [234]

4. In logistical terms, the easiest way for everyone to proceed (and the least disruptive outcome for Mr Kominsky) is if a specific payment is calculated for Ms Seifert to receive and although it seems an unlikely outcome at this juncture, Mr Kominsky is able to approach some financier who is prepared to advance the sum either through a conventional mortgage or some form of reverse mortgage.

5. I appreciate that it is unlikely that Mr Kominsky will be able to avail himself of such a procedure but I consider overall considerations of justice and equity require that I give him such an opportunity.  In this eventuality, the sum I propose is one of $120,000.00, which should be paid within 42 days.

6. Failing the provision of this sum, I will direct that the B Street, Suburb C property be placed on the market for sale and upon its sale and after payment of necessary selling costs and the discharge of the mortgage and any charge secured against it, the proceeds of sale be divided 60/40% in Mr Kominsky’s favour.

7. Thereafter, each party should retain all items of personal property standing in their respective names and possessions.  It is not beyond the bounds of possibility that Mr Kominsky will not cooperate with these orders.  As a consequence, I will grant Ms Seifert liberty to re-list the matter in respect of enforcement.  In this context, I note that her legal representatives have not sought any specific orders in respect of such issues.

1. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding two hundred and eight (208) paragraphs are a true copy of the reasons for judgment of Judge Brown.

Associate: 

Date: 10 March 2021