SPENCER & SPEIGHT
[2014] FamCA 436
•23 June 2014
FAMILY COURT OF AUSTRALIA
| SPENCER & SPEIGHT | [2014] FamCA 436 |
FAMILY LAW – DE FACTO RELATIONSHIP – JURISDICTION – whether the parties are living as a de facto couple to enable a declaration to be made pursuant to s 90RD of the Family Law Act 1975 (Cth)
FAMILY LAW – DE FACTO RELATIONSHIP – POWER – whether in the context of a relationship of less than two years the applicant made substantial contribution pursuant to s 90SB(c)(i) of the Act and whether a failure to make property orders would result in a serious injustice and a declaration pursuant to s 90SB(c)(ii) of the Act
FAMILY LAW – DE FACTO RELATIONSHIP – MEANING OF A SEXUAL RELATIONSHIP – a relationship does not necessarily include sexual intercourse to fall within the definition
FAMILY LAW – DE FACTO RELATIONSHIP – PROPERTY – adjustment of property in a short relationship but where there has been a substantial contribution
| Family Law Act 1975 (Cth) ss 4(1), 4AA, 90SB, 90RD 90SM(4)(a),(b),(c) | |||
| Johan & White [2011] FamCA 221 | |||
| APPLICANT: | Mr Spencer | ||
| RESPONDENT: | Ms Speight |
| FILE NUMBER: | MLC | 8481 | of | 2013 |
| DATE DELIVERED: | 23 June 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 28, 29 & 30 April 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Nehmy |
| SOLICITOR FOR THE APPLICANT: | Barbayannis Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Colla |
| SOLICITOR FOR THE RESPONDENT: | Rudstein Kron Lawyers |
Orders
Pursuant to s 90RD of the Family Law Act 1975 (“the Act”) a de facto relationship existed between the parties from February 2012 until June 2013.
Pursuant to s 90SM of the Act and by way of alteration of property interests the respondent pay to the applicant the sum of seventy five thousand dollars ($75,000) within sixty (60) days from the date of this order.
All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
All extant applications (except costs as are not dealt with within these orders) are dismissed.
Any costs application be dealt with in accordance with the Family Law Rules 2004.
NOTATION
The payment required by order 1 above is in addition to the money ordered to be paid by the respondent to the applicant by way of the consent interim property order made 12 November 2013.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Spencer & Speight has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: MLC 8481 of 2013
| Mr Spencer |
Applicant
And
| Ms Speight |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Mr Spencer (“the applicant”) and Ms Speight (“the respondent”) met at a Sport H venue and commenced a friendship, which developed into a relationship which the applicant claims is a de facto relationship within the meaning of the Family Law Act 1975 (Cth) (“the Act”).
The applicant contends that he and the respondent lived in a de facto relationship (within the meaning defined by s 4AA of the Act) from February 2012 until the breakdown of that asserted relationship in June 2013,[1] a period of about seventeen months.
[1] At paragraphs 25 & 27 of the application filed 2 October 2013.
The applicant contends that the respondent pay to him the sum of $90,000, and if she does not do so then her home ought to be sold to fund that payment. This claim is based upon the applicant’s assertion that he made a substantial contribution to the respondent by reason of a payment by him totalling $142,000 into the respondent’s mortgage account either during or just before the commencement of the alleged de facto relationship. Further, the applicant says that failure to make such an order would amount to a serious injustice to him.
The respondent denies that there was any such de facto relationship in existence between the parties and that the substantial part of the payment made by the applicant to her was in consideration of driving services rendered by her to the applicant pursuant to a commercial agreement. She contended that if there was a de facto relationship, given the commercial arrangement, there ought to be no order made in favour of the applicant.
The respondent has repaid or refunded $50,000 to the applicant and does not seek repayment or re-imbursement of that sum. In this respect it was not in issue that the sum of $30,000 was paid to the applicant pursuant to an order for a partial property settlement on the 12 November 2013. If the respondent was successful in her case and the Court made a finding that there was no de facto relationship, within the meaning of the Act, then such interim property orders are or were ultra vires of the power of the Court.[2] The respondent’s case was that such money was the property of the applicant and she would make no claim to it, irrespective of the outcome.
[2] Norton v Locke [2013] FamCAFC 202.
ISSUES
The first issue to be determined is whether there was a de facto relationship upon which the Court’s jurisdiction is based.
As a precursor to the remainder of the issues, there needs to be a finding of fact as to whether or not there was a commercial agreement between the parties for the applicant to pay the respondent $91,000 to provide driving services for him between October 2011 and April 2012. Much of the following determinations will be predicated on the finding of fact as to the alleged agreement in the light of the payment of $142,000 by the applicant (being the proceeds of the sale of his home) into the respondent’s home mortgage account in September 2012. That such a payment was made is not in issue.
If jurisdiction is established then, given that on his case the de facto relationship was less than two years, the applicant needs to establish power in the Court to make property orders pursuant to s 90SB(c) of the Act in that he had:-
(a)made a substantial contribution of the kind referred to in s 90SM (4)(a)(b) or (c) of the Act; and
(b)that the failure to make an order would result in a serious injustice to the applicant.
If jurisdiction and power are established then the usual approach to property must apply, that is to:-
(a)identify, according to ordinary common law and equitable principles, and then value the property, assets, financial resources and liabilities of the parties;
(b)determine whether it is appropriate to make an order altering those interests and if so;
(c)identify relevant contributions of the kind referred to in s 90SM(a), (b), and (c) of the Act and assess them;
(d)consider relevant matters referred to in s 90SM(d), (e), (f) and (g) of the Act; and
(e)determine what order adjusting the property, assets and liabilities of the parties is just and equitable and, in the overall circumstances of these parties, is appropriate.
BACKGROUND
The applicant is aged 49. He is employed in a sales position and currently earns about $1,300 per week in this employment. He is in good health save for his claim of depression. This health difficulty does not adversely impact upon his earning capacity.
The applicant’s property consists of his personal effects, the sum of $28,000 held in trust (being the balance of the $30,000 paid to him pursuant to the November 2013 order) and his superannuation entitlements of about $128,500.[3]
[3] The applicant relied upon his financial statement filed 4 April 2014 and was not challenged in relation to the material in that financial statement.
The respondent is aged 43. She has two adult children who live with her. In her recent financial statement she describes herself as a self-employed counsellor who earns about $1,000 per week. She owns property at B Street, Town C (which is subject to a mortgage) a Nissan motor vehicle, a Model D motor vehicle, household effects and superannuation.
The parties met in June 2009 and soon became friends through the context of their mutual enjoyment of Sport H. In June 2011 the applicant and respondent travelled to Country E with a group of other participants of Sport H. The parties had separate rooms and described their relationship, at that time, as platonic. The applicant spent three weeks in Country E and the respondent stayed for one week.
Each of the parties had been twice previously married. The applicant has no children of any of his previous relationships, nor were there children of his relationship with the respondent.
The respondent’s second husband was Mr F who gave evidence for the respondent in these proceedings. That marriage terminated some years before the applicant and respondent met.
The respondent earns her income from dealing with people who have been before the Magistrates Court and subsequently need to attend courses. The respondent’s business is called Business G and her business is accredited to provide such services in the state of Victoria.
In September 2011 the applicant’s Victorian driver’s licence was suspended from 25 October 2011 until 25 April 2012. This was as a consequence of a loss of demerit points. In September 2011 the applicant travelled to New South Wales and obtained a New South Wales driver’s licence and purported to use this licence for the period of time his Victorian licence was suspended. I have made findings in relation to this issue elsewhere in these reasons.
The respondent asserted that after the applicant’s Victorian driver’s licence was suspended she was contracted by him to be his driver.
The respondent and the applicant travelled to Country E in about October 2011. The respondent claims that during the trip they entered into an oral agreement that she would drive the applicant or be available to drive him for the six month suspension period. She says that in consideration of her driving or being available to drive the applicant he would pay her $500 per day making a total of $91,000. The respondent produced a letter which she claims is evidence of the agreement.
The applicant denied the existence of that agreement and that he created or in any way participated in the creation of the confirmatory letter. He claims that he drove himself over that period and that the respondent only drove him about four times on an altruistic basis. The respondent deposes that she regularly drove the applicant and ceased operating her business to do so.
In February 2012 the applicant came to the notice of Victoria Police when driving a car or van in Victoria whilst his licence was suspended. Later that year he faced court and entered a plea of guilty to driving while he was suspended. And he was fined about $500.
The applicant asserted that as at the beginning of 2012 he was living in his home at Suburb I, which he shared with a friend and the friend’s daughter. The friend was paying him about $150 board per week. The applicant said that from February 2012 he spent most of his time at the respondent’s home. The respondent denies that assertion.
In April 2012 the applicant’s Victorian driver’s licence was restored to him.
In August 2012 the applicant’s marriage to his second wife was dissolved and the respondent was made aware of that divorce. There is an issue as to how she became aware of that circumstance.
In August 2012 the applicant sold his home at Suburb I and received net proceeds of about $144,500. Of that sum the applicant said he transferred $142,000 to the respondent’s home loan. This was done in four transactions, one of $100,000 one of $20,000 another of $20,000 and one of $2,000.
The applicant said that this payment was to help reduce the respondent’s mortgage to a much lower amount.
The respondent said that it was the $91,000 payable to her for the driving services she rendered to the applicant. She said the balance was to be held to enable the applicant to access those funds for a putative investment in Country E.
It is not in issue that the parties travelled to Tasmania in October 2012 and spent that time together. The respondent says that the applicant moved into the home at Town C in early November 2012 and remained there until about 2 June 2013. The respondent says there were two brief periods of separation over that time. The respondent does not admit that this was a de facto relationship over that seven month period. For the reasons set out later, I have determined that the parties were in a de facto relationship for at least that period of time.
In June 2013 the parties travelled to Country E as a couple to endeavour to work out their relationship.
The applicant asserts that the parties had an ongoing sexual relationship from early July 2011 which continued until July 2013. The respondent claims that the parties were unable to engage in a physical sexual relationship.
In June 2013 the respondent paid $20,000 to the applicant and in October 2013 these proceedings were commenced by him.
Any statement of fact in these proceedings is to be regarded as a finding of fact unless the contrary is clear from the context.
THE EVIDENCE
The Applicant
The applicant gave evidence in accordance with his affidavit and statement of financial circumstances both filed 4 April 2014. In addition he gave oral evidence by leave as to his working hours (which were essentially that asserted by the respondent).
His evidence included that he played Sport H at least three, sometimes four days per week, generally Saturday, Sunday, Wednesday and sometimes Thursday. For him a game of Sport H took about six hours.
The applicant had been a member of Sport H Venue J since he was aged 12 (although not continually) and played there regularly. Sport H is a significant part of the applicant’s life, he is very proficient at it and takes pride in this activity and it is the centre of his social life.
At the commencement of 2012 he joined Sport H Venue K and remained a member and played primarily at that venue until December 2013. This was a venue near to the home in which the respondent lived, and is consistent with the applicant’s claim about his relationship with the respondent. This evidence about the applicant’s membership was not challenged.
The applicant was cross-examined about the four trips he and the respondent had made to Country E. For the reasons discussed later I have concerns about the veracity of some parts of the applicant’s evidence on this issue.
I am troubled by the applicant’s evidence in relation to obtaining a New South Wales driver’s licence. He endeavoured to shift responsibility for this behaviour to the respondent. This does not sit with the warnings he was given by the respondent (which he denied) and warnings from one of his friends, as to the likelihood that he would be caught. The applicant had difficulty explaining his use of his friends or acquaintances in New South Wales who facilitated him obtaining the NSW licence. Yet the decision was his and he took the risk to drive from time to time and was eventually caught by Victoria Police. His evidence deflecting blame was unconvincing.
The applicant conceded that he was frightened when confronted by the police in February 2012 in relation to driving whilst disqualified and albeit that he went to court after his licence was restored and he was fined.
His evidence in relation to the respondent not driving him was supported by his witnesses and the objective evidence of him being caught driving whilst suspended.
The applicant’s evidence was not altogether convincing and I have treated it with some scepticism.
Mr A
Mr A provided evidence contained in his affidavit filed 4 April 2014. His evidence was, at some levels, cheer squad evidence and I was troubled about his evidence in that he had a discussion with the respondent about the applicant’s alleged inability to have a physical relationship with the respondent. It seems inherently unlikely given the circumstances. On balance, I do not give weight to that part of his evidence.
His evidence was not impressive and I have treated it with scepticism.
Mr L
The affidavit of Mr L filed 4 April 2014 was read into evidence. His evidence was that of a cheer squad and was of little assistance in determining this matter except to the extent of not observing the respondent driving the applicant.
Mr M
Mr M provided evidence contained in his affidavit filed 4 April 2014. This evidence was again a cheer squad affidavit and did not add significantly to the overall determination except to the extent of not observing the respondent driving the applicant. It was admitted into evidence without cross-examination.
Caterina Andrews
Caterina Andrews is a solicitor instructed by the applicant and who provided evidence contained in her affidavit filed 4 April 2014. Her affidavit provided a list of Magistrates Courts in Victoria obtained from the Law Institute of Victoria in 2012. It showed that the respondent had advertised her business outside metropolitan Melbourne, which to some extent impeached part of the evidence of the respondent.
Her evidence was unchallenged.
Mr N
Mr N provided evidence through his affidavit filed 4 April 2014. He was cross-examined by counsel for the respondent.
Mr N is a good friend of the applicant and I assessed his evidence on that basis. He was not shaken in cross-examination and provided detailed evidence of the applicant’s driving arrangements in at least the first part of 2012 and evidence of the applicant’s accommodation from February 2012 until August 2012. I generally accept his evidence.
Mr O
Mr O gave evidence in terms of his affidavit filed 4 April 2014. He operates a coffee shop business near the applicant’s then home at Suburb I.
The applicant was a regular customer at Mr O’s business and had a credit account at that business, which provided objective evidence of the applicant’s coffee visits. When in that area the applicant had coffee of a morning at that business and shared discussions with Mr O.
Mr O said in his affidavit:-[4]
4. I have observed the applicant arriving at and leaving my café, driving a white van. On occasions, I have observed the applicant’s dog, a Kelpie, sitting in the van which the applicant always parks in the loading zone which is approximately 15 metres from the front of my café.
5. I have never observed any other person in or driving the applicant’s white van.
6. On approximately three other occasions, I have observed the applicant arriving at and leaving my café driving a [Model D] motor vehicle which the applicant has parked in the car park next to the loading zones in front of my cafe.
7. I have never observed any other person in the [Model D] motor vehicle with or driving the applicant.
[4] Filed 4 April 2014.
The coffee accounts are indicative of the time that the applicant was staying overnight at Suburb I. For example, there were seventeen sales in January 2012, thirteen sales in February 2012, fifteen sales in March 2012, seven sales in April 2012 and seventeen sales in May 2012.
This is consequently indicative of the applicant not being in Suburb I on as regular a basis as the respondent would assert, but also not being at the respondent’s home as regularly as the applicant would assert.
I generally accept Mr O’s evidence as being reliable.
Mr P
Mr P provided evidence in accordance with his affidavit filed 4 April 2014.
He plays Sport H with the applicant on Wednesdays and was aware that the applicant had lost his licence. He did not see the respondent driving the applicant or observe the applicant driving his vehicle during his disqualification period. I accept his evidence.
Mr Q
Mr Q provided evidence contained in his affidavit filed 4 April 2014.
He is a participant in Sport H and has known the applicant for about eight years. He travelled to Country E with the applicant and respondent in October 2011 and observed them being affectionate towards each other, cuddling and holding hands.
I generally accept Mr Q’s evidence.
Mr R
Mr R provided evidence contained in his affidavit filed 4 April 2014.
He likewise went to Country E with the applicant and respondent in October 2011 and gave evidence of the romantic relationship between the applicant and the respondent. Mr R cannot say whether the applicant and respondent shared a room.
I generally accept Mr R’s evidence.
The Respondent
The respondent relied upon her affidavits filed 30 October 2013, 13 January 2014 and 3 April 2014. In addition she deposed the accuracy of her response filed 30 October 2013 and her financial statement filed 3 April 2014.
The respondent said that she remembered the applicant moving into her home a week after Melbourne Cup in November 2012 and leaving in June 2013. She denied the assertion of her discussion with Mr A.[5] I have accepted the respondent’s evidence that no such conversation took place.
[5] At paragraph 6 of Mr A’s affidavit filed 4 April 2014.
The respondent said that when she travelled to Country E in October 2011 and June 2012, she and the applicant were not traveling as a couple, and they did not share a room. I accept that they did not book a joint room but I do not accept that they were not romantically involved. The respondent gave evidence as to why she held hands and cuddled the applicant in Country E. I do not accept her evidence in that regard; it has a sense of recent invention. I prefer the evidence of the applicant and the other witnesses of the romantic nature of the relationship between the parties.
The respondent said that her relationship with her previous partner, Mr S ended in late December 2011. This evidence was inconsistent with the evidence of her son, Mr Speight and I do not accept the respondent’s evidence in that regard.
In relation to her assertion of being a full time driver for the applicant from October 2011 to April 2012, her evidence subtlety changed to that she was ‘available’ although she went on to say that she did drive the applicant around very regularly. Her evidence about this was unconvincing and inconsistent with the evidence of others and the evidence that her business seemingly continued to be operated by her.
In cross-examination the respondent denied she had a romantic association with the applicant in 2011. She said she did not go to the movies or have dinner with the applicant. She used a term of endearment of the applicant namely “[XX]” or “[X]”. She said this was simply the use of the name of a well-known professional Sport H player.
As to the allegation of an intimate relationship between the parties, the respondent said there was no physical intercourse but said there had been discussions about that aspect of their relationship. The respondent deposed that in October 2012 she said to the applicant that she would be patient in terms of their mutual desire to have a relationship.
In terms of intermingling of funds, some payments were made by the applicant in terms of the respondent through 2012 and in particular July 2012 and she had access to his credit card.
In September 2012 the applicant paid about $142,000 into the respondent’s bank account. Of that sum $20,000 was paid back to the applicant in mid-2013 and a further $30,000 was paid back to him pursuant to orders made in the Family Court in November 2012.
The respondent was cross-examined as to the reason the additional sum of about $51,000 was paid into her account. Her explanation was unsatisfactory in terms of her holding those funds for almost a year. Similarly her explanation as to the calculation of the $91,000 was unsatisfactory and had an air of artifice.
I am satisfied, on the respondent’s evidence, that she from time to time drove the applicant but certainly not to the extent that she asserted and she was certainly not as available as she asserted.
The respondent said she declared part of her income in her 2012/2013 tax return. It is not clear from the evidence in her first tax return that she did so.[6] The respondent prevaricated in terms of how the alleged $91,000 income was applied. She seemed to exclude money that was paid to her (albeit that she was the sole trader of about $20,000 and the $25,000 car). I am satisfied that the income referred to in her first 2013 tax return related to what she earned from the business and not from driving the applicant.
[6] Exhibit A1 page 334.
The respondent later lodged an amended tax return which included $45,000 asserting it as income derived from the applicant. I am satisfied that that money was not paid by way of income. I infer that the lodgement of the amended tax return which occurred after these proceedings were commenced was more for strategic tactical reasons than to reflect her real income.
The respondent’s responses to questions in relation to her use of her mobile telephone while she was driving were unconvincing. The respondent struggled to explain why numerous text messages were sent to the applicant’s telephone and her evidence in that regard was unreliable.
The respondent gave evidence in her affidavit that she only had a business in the Melbourne CBD however the complete production of the Magistrates Court documents showed that she was also registered in rural areas. She prevaricated when pressed on that evidence.
The respondent gave details of the fees payable and the various services she provided to the public. When pressed about 35 payments of $165 (the rate for a first appointment) she prevaricated. I am satisfied that over that period she is likely to have taken on 35 clients notwithstanding her evidence to the contrary.
I am satisfied she continued to run her business over the suspension period.
As to the letter allegedly confirming the driving agreement there were changes between the two iterations provided by the respondent to the applicant in these proceedings. No cogent explanation was provided by the respondent as to how the changes to the versions arose.
I accept and adopt the submission made by counsel for the applicant that there had been some interference with the letter and given the nature of who had access to the document, I am satisfied that the only person able to interfere with it, was the respondent or someone on her behalf.
I accept the evidence of the applicant that it was not a document created by him. In the circumstances the only inference available to me is that the document was created by the respondent. That finding largely impeached the veracity of the evidence of the respondent.
As to the issue relating to the telephone records of the telephone used by the respondent for her business it likewise impeaches her evidence. The respondent asserted that her business was transferred, in essence, to her former husband, Mr F. She said that the telephone calls were transferred to him and he had the telephone. When pressed about material in the records the respondent prevaricated.
The telephone records, the evidence of the respondent’s son and Mr F, are at odds with the evidence of the respondent. There were large numbers of text messages sent by that telephone to the telephone of the applicant. Her evidence in respect of this aspect is likewise impeached.
Counsel for the applicant made submissions as to the lack of credibility of the respondent’s evidence, I accept that submission. I am satisfied that the evidence of the respondent is unreliable.
Mr F
Mr F provided evidence contained in his affidavit filed 13 January 2014. The respondent was married to him from about 2006 until 2007.
Mr F conducts a similar business to that operated by the respondent. His evidence was provided in an effort to provide corroboration to the evidence of the respondent that she had given her business to Mr F while she was driving for the applicant between October 2011 and April 2012. On the surface their evidence was consistent.
During cross-examination, Mr F deposed that in operating the respondent’s business he had the use of the respondent’s business mobile telephone, except for periods over public holidays such as Christmas etcetera. He said calls to the respondent’s land line were re-directed to that mobile number. He said he did not text message the applicant. This evidence was inconsistent with the evidence of the respondent that her son had the telephone and was text messaging her whilst she was driving the applicant. Her son’s evidence did not support the respondent’s version.
In the context of Mr F, his evidence as to the use of that mobile telephone is impeached by the telephone records of the numerous text messages to the applicant. As to this discrepancy the respondent said in evidence words to the effect that Mr F had trouble with alcohol and that his cognitive ability was impaired.
I am not satisfied that Mr F managed the respondent’s business during the period October 2011 to April 2012.
His evidence is unreliable and I give it little weight.
Ms U
Ms U is a nurse who gave evidence in accordance with her affidavit filed 13 January 2014. Ms U is a close friend of the respondent and has been her friend for many years.
Ms U commenced her evidence by saying, as to the relationship, ‘I don’t believe it is true’. She is aligned with the respondent.
This is a cheer squad type witness and her evidence was not of significant weight in these proceedings.
Mr Speight
Mr Speight is the respondent’s son and he provided evidence contained in his affidavit filed 3 April 2014.
In oral evidence he said that his mother’s relationship with Mr S ended in the first half of 2011. He also gave evidence that the applicant stayed overnight at his mother’s home from late 2011 and (implicitly) throughout 2012.
His evidence was that his mother drove the applicant between October 2011 and 2012 and that the applicant had asked his mother to be his driver. I accept his evidence that from time to time the respondent drove the applicant over that period of time.
Mr Speight was clearly nervous and his evidence was supportive of the respondent. I am satisfied he endeavoured to be frank in his evidence.
Mr T
Mr T gave evidence as contained in his affidavit sworn 24 January 2014 and filed 3 April 2014. He is the respondent’s neighbour and he observed the applicant engaged in exercising his dog and spending time with the respondent during 2012 and provided some evidence that the applicant moved full time into the respondent’s home in late 2012.
I accept that his evidence is generally reliable.
Dr V
Dr V is the respondent’s general medical practitioner and he provided evidence contained in his affidavit filed 22 April 2014. The material in that affidavit was read into evidence without controversy. His evidence was as to certain prescriptions provided to the respondent.
Were the parties in a de facto relationship?
For the Court to have jurisdiction it is necessary for the applicant to establish that there existed a de facto relationship within the meaning contained in the Act.
The jurisdiction to hear de facto property proceedings in the Family Court is provided by s 31(1)(a)(aa) of the Act which provides:-
Original jurisdiction of Family Court
31(1) Jurisdiction is conferred on the Family Court with respect to:
(a)matters arising under this Act or under the repealed Act in respect of which matrimonial causes are instituted or continued under this Act; and
(aa)matters arising under this Act in respect of which de facto financial causes are instituted under this Act; and …
Section 39A of the Act provides jurisdiction for de facto financial proceedings to be instituted in the Family Court.
Section 4 of the Act, relevantly, defines a de facto cause to mean:-
(a)proceedings between the parties to a de facto relationship with respect to the maintenance of one of them after the breakdown of their de facto relationship; or …
(b)proceedings between the parties to a de facto relationship with respect to the distribution, after the breakdown of the de facto relationship, of the property of the parties or either of them; or …
To establish jurisdiction the applicant must satisfy the Court that a de facto relationship existed. Section 4AA (1) of the Act provides:-
(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.
Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple
(2) Those circumstances may include any or all of the following:
(a)the duration of the relationship;
(b)the nature and extent of their common residence;
(c)whether a sexual relationship exists;
(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e)the ownership, use and acquisition of their property;
(f)the degree of mutual commitment to a shared life;
(g)whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h)the care and support of children;
(i)the reputation and public aspects of the relationship.
(3)No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4)A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
(5) For the purposes of this Act:
(a)a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
(b)a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
In Johan & White [2011] FamCA 221 Murphy J considered authorities in the state jurisdiction about what constitutes a de facto relationship before he considered Part VIIIAB of the Act and said at paragraphs:-
59. In that respect it seems to me also instructive that the Commonwealth legislature did not provide for relief of that type in circumstances where two people were parties to, for example, a “domestic relationship”, or, as in New South Wales, a “close personal relationship” but, rather, only where parties were in a “de facto relationship” as defined.
60.In my opinion, the key to that definition is the manifestation of a relationship where “the parties have so merged their lives that they were, for all practical purposes, ‘living together’ as a couple on a genuine domestic basis”. It is the manifestation of “coupledom”, which involves the merger of two lives as just described, that is the core of a de facto relationship as defined and to which each of the statutory factors (and others that might apply to a particular relationship) are directed.
His Honour concluded:-
66.The issue, as it seems to me, is the nature of the union rather than how it manifests itself in quantities of joint time. It is the nature of the union – the merger of two individual lives into life as a couple – that lies at the heart of the statutory considerations and the non-exhaustive nature of them and, in turn, a finding that there is a “de facto relationship”.
In Smyth & Pappas [2011] FamCA 434 Cronin J referred to Jonah & White (supra) and to Barry & Dalrymple [2010] FamCA 1217 and said that two people could live very individual lives as a couple.[7]
[7] See paragraph 7.
In the unreported decision of Crowley & Pappas [2013] FamCA 783, Tree J observed in relation to s 4AA of the Act:-
10.Those provisions, or their state counterparts, have been the subject of considerable judicial discussion, principally in an attempt to more precisely analyse what will comprise “a couple”. Much of that analysis seems to have its genesis in the difficulty in satisfactorily distilling the essence of such a common, everyday concept. From those decisions the following propositions may be stated:
(a) whether a de facto relationship exists or not is a question of fact, not a matter of discretion;
(b) a de facto relationship does not need to be akin to a marriage although the nature of the association involved in a marriage relationship may be instructive;
(c) the parties determine the nature of their relationship and it may evolve and alter, even dramatically, over time;
(d) there need not be full time living together;
(e) the relationship may be unhappy, but still subsisting;
(f) sexual or other exclusivity is not necessary;
(g) the gist of the inquiry is the degree to which parties have merged their lives into one. That connotes financial, emotional and physical interdependence.[8]
[8] Footnotes omitted.
In terms s 4AA(1)(a) & (b) of the Act, I find and accept that neither the applicant nor the respondent were legally married to each other and that the applicant and the respondent are not related by family.
Having regard to all the circumstances of their relationship as is outlined in the following reasons, I find that the applicant and respondent were living together on a genuine domestic basis from about February 2012 until June 2013. In determining that question I can consider some or all of the matters set out in s 4AA(2) of the Act.
The duration of the relationship
As to the duration of the relationship between the parties it is not in issue that they shared the same home and the same bed from November 2012 until June 2013. I prefer and accept the evidence of the applicant that he and the respondent commenced a romantic association in late 2011 and that by early 2012 he was spending more time living with, and at the respondent’s home than at his home in Suburb I.
As such the duration of the relationship, in that they spent significant time together, was from February 2012 until June 2013.
The nature and extent of their common residence
In terms of the nature and extent of their common residence, I accept the evidence of the applicant and Mr N that from February 2012 the applicant was spending much less time at the Suburb I house (including the evidence of the applicant that he was living significant periods of time at the respondent’s home).
I accept the evidence of Mr O as to the change in the applicant’s coffee drinking habits near Suburb I. The change of area of residence was likewise objectively supported by the applicant joining and playing at Sport H Venue K, which is near the respondent’s home.
Whether a sexual relationship existed
There was controversy between the parties as to whether a sexual relationship existed. All of this was in terms of whether the parties had physical intercourse. The applicant asserted a sexual relationship from June 2011 which continued until separation in about June 2013. The respondent said that no sexual intercourse occurred.
However, the respondent agreed in evidence that the question of a physical relationship was discussed. She said that she would be ‘patient’ in terms of the development of a sexual relationship given that she asserted some health difficulties with regard to the applicant. I am satisfied that the parties engaged in intimacy. I make no finding as to whether the parties engaged in sexual intercourse.
The question is then, was there a ‘sexual relationship’. In Re A Medical Practitioner [1993] 2 Qd R 154, Dowsett J discussed the meaning of the term “sexual relationship” and “sexual relations” in the context of a medical practitioner and a patient, he said:-[9]
…The expression “sexual relations” is often used as a synonym for sexual intercourse; the expression “a sexual relationship” has a wider meaning descriptive of the totality of the relationship between two persons, which relationship has some sexual aspect. The expression is commonly used to describe all of the incidents of intimacy between and man and a woman which lead up to and follow their consummating that relationship by intercourse. In other words, kissing fondling, particularly intimate fondling may well be part of a sexual relationship, although such act may not normally be themselves described as “sexual relations” unless they occurred in close proximity to actual intercourse. The expression “sexual relationship” implies a continuing relationship over some period of time and often includes non-sexual incidents such as social outings and the exchange of gifts.
[9] Page 160 [line 29 onwards].
I generally agree with Dowsett J in that the term “sexual relationship” has a wider meaning that just sexual intercourse and sexual relations.
In the context of relations between couples there can be physical and non-physical interactions that have sexual dimensions and components to them. In some factual circumstances, these interactions may constitute sexual relationships. The expression “sexual relationship” under s 4AA of the Act encompasses the broad and varied community of couples, including heterosexual and same sex couples.
The nature and extent of intimate relationships between couples can be many and varied and do not need to include physical sexual intercourse to fall within the definition of a sexual relationship. However, it must include conscious degrees of mutuality between the couple. Each case will be determined on its own facts.
In the circumstances of these parties, irrespective of whether they engaged in sexual intercourse, the evidence of the applicant, the respondent and the various witnesses enables me to make a finding that they had an intimate relationship from at least February 2012 until June 2013, which could only be described as a sexual relationship.
They shared the same bed overnight for many months, they discussed and at least sought sexual intercourse and they displayed physical affection to each other.
The degree of financial dependence or interdependence, and any arrangements for financial support, between them
As to financial dependence or independence, neither the applicant nor the respondent were significantly dependent upon each other. Each had their own income and employment, except for the issue of the respondent allegedly driving for the applicant for six months (to which issue I address elsewhere in these reasons).
The payment of the $142,000 or $51,000 against the respondent’s home loan was, and continues to be, an arrangement for financial support between the parties.
If the respondent’s contention was correct that she was to be paid, and was paid, $91,000 for her driving services, then it still leaves the balance of about $51,000 paid into her housing loan. In either scenario, there was a significant financial arrangement. The $142,000 was almost the whole of the applicant’s non superannuation property.
In mid-2012 the applicant commenced shopping in the general area of the respondent’s home and gave the respondent access to a credit card. I accept his evidence that he provided some limited indirect financial support to the respondent commencing in early to mid-2012.[10] The applicant paid Foxtel bills and assisted around the house.
The ownership, use and acquisition of their property
[10] At paragraphs 35 and 36 of the applicant’s affidavit filed 4 April 2014.
There is no evidence that the applicant and respondent jointly obtained property of any meaningful value. The respondent had the use of the applicant’s capital from the sale of his home and at significant levels continues to have that use.
As to the degree of mutual commitment to a shared life, the care and support of the respondent’s children and the reputation and public aspects of the relationship – I have grouped these together
As I said earlier the parties lived together from February 2012 and the respondent concedes that they shared the home and a bed from at least November 2012 until June 2013.
I do not accept that the applicant undertook no household work or chores as asserted by the respondent nor do I accept that the applicant undertook the broad range of work as asserted by him. He clearly undertook some work at the respondent’s home and I accept his evidence to that effect.
The parties were in a public relationship and went about as a couple particularly in terms of their living and social arrangements (including through Sport H), this shared life occurred from at least February 2012 until the breakdown of their relationships in June 2013.
As to the question of the degree of mutual commitment to a shared life, the respondent asserted that she would not have entered into a relationship with the applicant until he was divorced. It is clear that the applicant produced evidence of the divorce in September 2012 and the respondent says of the relationship that:-[11]
After the applicant moved into my home in November 2012, our relationship became closer and the applicant sleeping in my bed … (the respondent then went on to describe a health difficulty she asserted with regard to the applicant.) He asked that I be patient with him. I agreed however I was not prepared to participate in any other sexual activity with him. We slept in the same bed with a pillow between us. Despite this, we did have from then, until when the applicant left my home on 2 June 2013, a close and loving relationship.
[11] At paragraph 11 of the respondents affidavit filed 30 October 2013.
In her affidavit filed 13 January 2014 the respondent described the relationship as:-[12]
I lived with [the applicant] on a domestic basis for a period of approximately 7 months from November 2012 to June 2013.
[12] At paragraph 9.
In addition after the relationship broke down the respondent sent an email to the applicant in which she said:-[13]
I really want to work this out. It’s a promise. You mean the world to me and my children.
[13] Exhibit A1 page 92.
The applicant engaged with the respondent’s children in cricket and drove her youngest child to work experience for a month.
The applicant’s dog was left at the respondent’s home from about mid-2012.
Whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship
The relationship was not registered as a prescribed kind of relationship under a prescribed law of a State or Territory.
Conclusion as to the relationship
In the words of Murphy J[14] (supra) “the parties have so merged their lives that they were, for all practical purposes ‘living together’ as a couple on a genuine domestic basis” from February 2012 until June 2013.
Was there a commercial agreement between the parties for the provision of driving services between October 2011 and April 2012
[14] Johan v White.
The respondent asserted that she and the applicant entered into a commercial agreement following the disqualification of his driver’s licence in September 2011. The respondent’s evidence about that alleged agreement is set out in paragraphs 13 to 31 of her affidavit filed 13 January 2014. She says that it was an oral agreement which is evidenced in writing. The respondent annexed to her affidavit a copy of a letter apparently she says was handed to her by way of an electronic memory stick on 28 November 2011. This contained an electronic letter confirming the alleged agreement.
That letter was under the letterhead of W Pty Ltd. This was a company which was inoperative at that time, but had been a company in which the applicant had an interest. The letter had a date (which date apparently changed each time the document was opened) and it set out:-[15]
I [the applicant] agree to contract and pay [the respondent] $500 per day for being my driver while I serve my six month driver licence suspension.
I agree that I will pay the total at the end of my disqualification all within 12 months of our agreement.
Best regards,
[15] Exhibit NS-1 of the respondent’s affidavit filed 13 January 2014.
The document had an electronic signature of the applicant.
In paragraphs 62 and 63 of his trial affidavit the applicant annexed another version of the letter which version was provided to his solicitor by way of discovery, prior to the affidavit of 13 January 2013.
The applicant denied that he wrote the letter or authorised the writing of the letter and denied the contents of the letter. He denied that he signed or authorised the use of his electronic signature on the letter.
The letter discovered by the respondent’s solicitors has a different date and as I said earlier the date change makes no meaningful difference as it is likely to be a computer generated problem. However, there are three other substantive differences between the letters, which are:-
(a)The addition of the words ‘Dear [an abbreviation of the respondent’s given name]’.
(b)The deletion of the respondent’s name in line one and replacing it with the word ‘you’.
(c)The changing of the word ‘agree’ in the third paragraph to the word ‘agreed’.
There was no issue that the alleged letter was contained in a memory stick which was allegedly handed to the respondent and which the respondent had control over. The two documents, with their differences, came from the respondent. The evidence of the respondent in relation to this letter was impeached by reason of those changes.
In her affidavit filed 13 January 2014, the offer, which she says was made by the applicant, was that he would pay her $500 per day for her driving services. The period of engagement would be for six months from 25 October 2011 to 25 April 2012 and he would pay her a lump sum amount of $91,000 calculated on the basis of one hundred and eighty days at the rate of $500 per day.
The agreement provided that she would drive his car and he would cover the expenses and she would maintain confidentiality. She said that the letter had the effect of accepting that offer and she said that she performed those duties by driving for him and, to all intents and purposes, abandoning her business during that period of time.
The respondent asserted that she transferred the business over that period to her former husband, Mr F. I have previously expressed concerns about the respondent’s evidence and that of Mr F on this issue.
The business documents of the respondent show that the respondent continued receiving sums, which appeared to reflect the taking of new instructions from clients, over that six month suspension period. This was inconsistent with the respondent’s evidence.
The respondent asserted that she gave her business telephone to her former husband, Mr F, and arranged for calls to her home number to be automatically redirected to that mobile number. The respondent’s evidence in relation to the telephone calls was inconsistent with the evidence of Mr F, her son Mr Speight and the telephone records. The telephone records themselves showed regular text messages from that telephone to the applicant and in particular a large number of text messages on 29 October 2011.
The respondent endeavoured to explain away that inconsistency, however I do not believe her given the broader evidence and I have concerns about the reliability of her evidence generally.
The applicant denied that any such arrangement was entered into and he denied that the driving took place as alleged by the respondent.
The respondent asserted that the agreement was that she was paid $500 every single day over that one hundred and eighty two day period, irrespective of whether her driving was needed or not, she would be paid to be available.
The respondent played competition Sport H as set out in paragraph 47 of the applicant’s affidavit filed 4 April 2014. There were some twenty occasions when she played Sport H. No explanation was given as to what would happen on those days.
On 26 August 2013 the respondent sent a text to the applicant stating:-[16]
[The applicant], I will again remind u [sic] that I declared the money as income. If you have forgotten, search your computer for a document saved as ‘agreed to pay [an abbreviation of the respondent’s given name] $500 per day’. Unfortunately you have no idea what you are wasting your time on ….
[16] Annexure Q of the applicant’s affidavit filed the 4 April 2014.
In fact the tax return had not been lodged and it was only lodged later, after it had been signed by the respondent on 7 October 2013. In that document the respondent asserted that she earned income from Business G of $53,028 that year and had expenses of $27,705 showing a net income of $25,323.
The respondent endeavoured to assert that this income reflected $25,000 being the car that she bought and the balance being part of the income or income from the driving provided by the respondent albeit paid in the 2012/2013 financial year.
It is clear from the face of the tax return that this was income from the business and not from her driving. After a conciliation conference the respondent lodged an amended income tax return where the respondent declared a further $45,000 in income being the alleged driving fees paid to her by the applicant.
Given the evidence of the applicant and the respondent and having regard to my concerns about the evidence of the respondent I am satisfied that this amended tax return dated 15 November 2013 was tactical. I find that was not income and that the assertion by the respondent was simply to bolster her case in this Court and that no such income had been earned by her.
The assertion by the respondent that the applicant entered into an agreement to pay her $500 per day, each and every day out of that six month period just has a sense of artifice about it. The assertion that this included holidays, Sport H days, and days when the applicant did not need driving did not make sense.
The evidence was that the applicant did in fact drive and was caught driving whilst suspended.
I am not satisfied that there was a contract between the respondent and the applicant as asserted by the respondent.
Consequently I find that the applicant received from the sale of his Suburb I home the sum of about $144,529. He paid into the respondent’s home loan account the sum of about $142,000. Of that sum $20,000 was repaid to the applicant after separation in June/July 2013 and before the commencement of these proceedings. I am satisfied that a further sum of $30,000 was paid to him by the respondent pursuant to an order made by this Court in October 2013.
Jurisdiction having been established and this de facto relationship being for a period of time less than two years;
Has the applicant made a substantial contribution of the kind referred to in s 90SM (4)(a)(b) or (c) of the Act?
In V and K [2005] FCWA 80 Holden CJ said [at paragraph 21] in relation to the meaning of substantial contributions as follows:-
…In my view, substantial means something more than usual or ordinary. In my view, [the section] is aimed at more exceptional circumstances where serious injustice may be caused by the application [of the provision].
This approach was adopted in terms of the Act by MacMillan J in Jacob v Lawrence [2013] FamCA 188.
It is not in issue that the applicant paid $142,000 to the home loan account of the respondent in September 2012. Since that time $50,000 has been repaid to the applicant. The applicant in these proceedings seeks an order for $90,000 representing about 60 per cent of the non-superannuation property of the applicant.
It this case the contribution of the $142,000 represented virtually the whole of the applicant’s non superannuation funds and could only, in the circumstances, be described as a contribution which is more than usual or ordinary.
I find that the payment of $142,000 by the applicant was both a direct and indirect substantial contribution to the conservation and preservation of the primary property of the respondent, namely her home and mortgage. This was made by the applicant in the context of him being a party to the de facto relationship which existed between he and the respondent.
The money was used to reduce the mortgage over the home of the respondent in terms of savings on interest and reduction in capital. At all times, I am satisfied that the applicant retained and intended to retain an equitable interest in the sum of $142,000.
Would the failure to make an order result in a serious injustice to the applicant?
The next question is whether the failure to make an order or declaration would result in a serious injustice to the applicant. I am satisfied the applicant had determined to make a commitment to the relationship he had with the respondent. Part of that commitment was to pay this money against the mortgage of the respondent’s home.
To prevent or preclude the applicant from accessing the provisions of the Act in the circumstances of this matter would, in my view, result in a serious injustice to him.
I am satisfied that on the facts this Court has jurisdiction to exercise the powers provided under Part VIIIAB of the Act. Further, I am satisfied and find that:-
(a)there is a de facto relationship between the parties within the meaning ascribed by s 4AA of the Act:
(b)such de facto relationship had a duration of 17 months, and that the applicant has made substantial contributions of the kind mentioned in s 90SM(4)(a) of the Act; and
(c)the failure to make an order or declaration would result in a serious injustice to the applicant.
Accordingly, I am able to consider and, if just and equitable, determine the applicant’s property application.
APPROACH TO PROPERTY
Jurisdiction and power having been established the usual approach to property must apply, that is to:-
(a)identify, according to ordinary common law and equitable principles, and then value the property, assets, financial resources and liabilities of the parties;
(b)determine whether it is appropriate to make an order altering those interests and if so;
(d)identify relevant contributions of the kind referred to in s 90SM(a), (b), and (c) of the Act and assess them;
(e)consider relevant matters referred to in s 90SM(d), (e), (f) and (g) of the Act; and
(f)determine what order adjusting the property, assets and liabilities of the parties is just and equitable and is, in the overall circumstances of these parties, appropriate.
Identity and value the property, assets, financial resources and liabilities of the parties
The parties were in agreement as to the value of other property, namely:-
B Street, Town C – owned by respondent – agreed value.
$410,000
Respondent’s Nissan motor vehicle – agreed value
$25,000
Respondent’s Model D motor vehicle – agreed value.
$10,000
Respondent’s cash at bank and household contents – agreed value
$7,000
Applicant’s cash at bank – agreed value.
$28,000
Total
$480,000
Liabilities
Respondent’s mortgage liability on Town C property – agreed value
$123,000
Total net superannuation assets
$357,000
Superannuation
Applicant’s superannuation – agreed value
$128,515
Respondent’s superannuation – agreed value
$19,827
Total superannuation
$148,342
Each of the parties has accumulated their respective superannuation entitlements over many years. The parties were in a relationship and were contributing for a relatively short period of time, seven months on the evidence of the respondent and 17 months on the evidence of the applicant.
Neither party seeks a superannuation splitting order. Given the circumstances and the factual matrix of these parties I will accept and adopt that course.
The respondent has assets in the form of the Town C home, the Nissan motor vehicle, the Model D motor vehicle, her cash in the bank and her household contents totalling some $452,000. This is subject to a liability of $123,000, which is the mortgage over her home, giving a net value of property of some $329,000.
In addition the respondent has a liability to the tax office of $15,453 being unpaid tax. I infer that this is the tax accrued by reason of her amended income tax return. It is possible that this amount may well be diminished if a further amended income return is lodged by the respondent; however, I make no finding in that regard.
The respondent also asserted that she has other liabilities, namely a $10,000 loan (in US dollars) to BB and $4,000 in relation to American Express liabilities.
I accept that the Town C home, the Model D motor vehicle and the respondent’s household contents were there prior to the commencement of the relationship. Their value is not likely to be that much different to that as at the date of hearing due to the short duration of the relationship.
Determine whether it is appropriate to make an order altering those interests
Given that:-
(a) the applicant applied $142,000 in reduction of the mortgage over the respondent’s home, the detail of which I have referred to earlier in these reasons;
(b) such a contribution by the applicant was made in the context of the applicant’s then view that the relationship was ongoing and would persist;
(c) the subsequent breakdown of that relationship; and
(d) the significance of that contribution in terms of the applicant’s overall wealth.
I determine that it is appropriate to consider making an order altering the interest in the property of the parties under the Act.
Identify relevant contributions of the kind referred to in s 90SM(a), (b), and (c) of the Act and assess them
In September 2012 the applicant paid $142,000 against the mortgage over the respondent’s home. This was almost the whole of the proceeds of sale of his Suburb I home. This provided support by way of capital and reduced mortgage repayments for the respondent.
The applicant resided at the respondent’s home rent-free, and with most of the other accommodation and household expenses paid by the respondent (save for the payment of a subscription with Foxtel). The respondent’s use of the Credit Card was limited to costs incurred in caring for the applicant’s pet. If the credit card was used for any other purpose, the respondent reimbursed the applicant (s 79(4)(a)).
During the relationship and after the end of the relationship the respondent continued to meet the mortgage repayments for her home without any contribution from the applicant.
The respondent undertook most household duties and chores but with some help from the applicant.
At the commencement of the relationship the respondent had her home, Model D motor vehicle, household contents and a substantial mortgage of at least $155,000.
The applicant had his equity in his home which by August 2012 had a net value of about $143,000. He now has $28,000 being the balance of the money paid to him by way of a partial property order and no other assets of any commercial value.
Overwhelming contributions were made by the applicant to the reduction of the mortgage which was applied both in a capital sense and in the reduction of the weekly or monthly mortgage repayments.
Whilst the parties had limited intermingling of their finances to assist in their day to day expenses to a limited extent, they overall endeavoured to maintain their own separate expenses and repaid each other for expenses paid. There is evidence, which I accept, that the applicant had paid for some pet food, an electricity bill and other household expenses. The respondent concedes a payment in October 2012 although she says that it was reimbursed by her.
I am satisfied that the respondent contributed by way of some driving of the applicant between October 2011 and April 2012. This was to assist the applicant in terms of his loss of licence, and not pursuant to any alleged commercial agreement. I find that the respondent was substantially able to continue her business over that period.
The respondent provided a home and accommodation for the applicant on a part time basis from February 2012 until November 2012, and then on a full time basis for a further period of about seven months.
The applicant provided the respondent with Sport H lessons to her advantage in that her proficiency increased substantially. He arranged to drive the respondent’s younger child to and from work experience for about a month and engage them in activities such as cricket.
Any remaining contributions were, in the circumstances, relatively minimal.
I am satisfied that there ought to be an adjustment of property pursuant to s 90SM of the Act, primarily having regard to the financial contribution made directly by the applicant against the mortgage of the respondent.
I accept that the respondent provided him with accommodation, support and driving. In all of those circumstances I am satisfied that there ought to be a payment by the respondent to the applicant.
Given all of the factors over that limited period of time, I evaluate the contributions as those set out above and I am satisfied that the adjustment in this matter ought to be by way of an amount rather than a percentage.
Consideration of the matters referred to under s 90SM(d),(e),(f) and (g) (including s 90SF)
Determine what order adjusting the property, assets and liabilities of the parties is just and equitable and is in the overall circumstances of these parties appropriate
The only relevant matter submitted and in evidence before me as to these factors was the respondent’s assertion that she earns less than the applicant and had the care of her two adult children, one of whom has special needs. No expert medical evidence of those special needs was put before me.
Each of the parties earns income and are able to maintain themselves and in the case of the respondent her children. They have done so prior to their relationship and subsequent to their relationship. I am aware that the respondent’s income is less than the applicants, although there is no issue that her income is sufficient for her needs and that of her children.
The respondent has the care of two children, one aged 20 and one aged 18. The younger child has special needs.
The respondent argued there should be an adjustment her way given those circumstances. However, given the short period of the relationship and the overall circumstances of each of the parties in that short relationship, I determine that it is not, in all of the circumstances, appropriate to make a further adjustment in favour of the respondent arising out of that circumstance.
SUMMARY
The applicant seeks an order that the respondent pays to him the sum of $90,000 and in the event she is unable or unwilling to do so then the Town C home be sold to fund such payment.
Otherwise he seeks that each party retain their personal property and superannuation entitlements in their respective names.
I have considered all of the facts and circumstances and I am satisfied that an order for payment by the respondent to the applicant is appropriate given the substantial contribution to the mortgage. Given the other contributions by each of the parties set out above, including the applicant for all intents and purposes residing in the respondent’s home, I am not satisfied that there ought to be an order for the $90,000 sought by him. Given the circumstances I determine that a sum of $75,000 payable to the applicant is just and equitable and otherwise appropriate and I will so order.
MISCELLANEOUS
The applicant seeks an order for sale of the respondent’s home in the event that the respondent does not comply with a property order. There is no evidence that the respondent is likely to be non-compliant, she complied with the interim property order and she is working. I do not, in those circumstances, intend to make an order in anticipation of any non-compliance.
I have allowed the respondent 60 days to arrange finance to pay the $75,000 to the applicant. This will enable an orderly approach to the payment to the applicant.
I certify that the preceding two hundred and nine (209) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 23 June 2014.
Associate:
Date: 23 June 2014
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