Thompson-Grandou v Grandou

[2002] NSWSC 1013

Reported Decision: (2003) DFC 95-266

New South Wales

Supreme Court

CITATION:	Thompson-Grandou v Grandou [2002] NSWSC 1013
CURRENT JURISDICTION:	Equity
FILE NUMBER(S):	SC 3815/99
HEARING DATE(S):	11, 12, 13 June, 4 July 2002
JUDGMENT DATE:	29 October 2002
PARTIES :	Lyndall Ruth Thompson-Grandou (Plaintiff) Fabrice John Grandou (Defendant)
JUDGMENT OF:	Master McLaughlin

COUNSEL :	J. Van Aalst (for Plaintiff) G. Foster (for Defendant)
SOLICITORS:	John Hertz & Associates, Solicitors (Plaintiff) Redmond Partners, Solicitors (Defendant)
CATCHWORDS:	Family Law - De facto relationship - Adjustment of interests of parties in property - Respective contributions of parties - The Defendant was the chief breadwinner, whilst the Plaintiff's contributions were essentially in the capacity of homemaker and mother - Evidence concerning present and likely future needs of parties should be disregarded - Caution should be exercised in applying to claims by a de facto partner under section 20 of the Property (Relationships) Act 1984 (NSW) the principles which the Family Court of Australia applies to applications under section 79 of the Family Law Act 1975 (Cth) - The Property (Relationships) Act looks to past contributions, whereas the Family Law Act looks also to present and future needs - Whether contributions made by one party to the children after termination of the relationship are contributions of the nature recognised by section 20(1)(b) of the Property (Relationships) Act - Application for spousal maintenance.
LEGISLATION CITED:	Property (Relationships) Act 1984
CASES CITED:	Black v Black (1991) 15 FamLR 109 Evans v Marmont (1997) 42 NSWLR 70 Foster v Evans (1997) DFC95-193 Jones v Grech (2001) NSWCA 208 Matheson v Wallis [2001] NSWSC 931 Roy v Sturgeon (1986) 11 NSWLR 454 Wallace v Matheson [2002] NSWCA 350 Wallace v Stanford (1995) 37 NSWLR 1
DECISION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Master McLaughlin

Tuesday, 29 October 2002

3815/99 LYNDALL RUTH THOMPSON-GRANDOU -v- FABRICE JOHN GRANDOU

JUDGMENT

1 MASTER: These are proceedings under the Property (Relationships) Act 1984 (formerly known as the De Facto Relationships Act 1984).

2 The proceedings were instituted by statement of claim filed on 3 September 1999 by the Plaintiff, Lyndall Ruth Thompson-Grandou (who now uses the surname Thompson). The Defendant named in that statement of claim is Fabrice John Grandou. By that pleading the Plaintiff claims orders for the adjustment of the interests of the parties in property, pursuant to section 20 of the Property (Relationships) Act. The Plaintiff also claims an order that the Defendant pay to her spousal maintenance in a specified sum, pursuant to section 27 of the Act. The Plaintiff also claims other and consequential relief. (I shall later in this judgment set forth the precise details of the substantive relief which is sought in the statement of claim.)

3 The Defendant filed a defence and a cross-claim on 22 December 1999. The Defendant by that cross-claim seeks an order that, upon the payment by him to the Plaintiff of the sum of $80,000, the Plaintiff transfer to him her interest in the house property situate at and known as 18 Cross Street, Cronulla (to which I shall hereinafter refer as “the Cross Street property”). That property had been from April 1997 until the termination of the de facto relationship in December 1998 the matrimonial home of the parties. Since the termination of the relationship the Defendant has continued to reside therein.

4 The Plaintiff has not filed a defence to the cross-claim.

5 It was not in dispute that the parties had lived in a de facto relationship from about October 1988 until late December 1998. The Plaintiff was born on 22 September 1969, and is presently aged thirty-two. The Defendant was born on 22 July 1961, and is presently aged forty-one. The evidence does not suggest that either of the parties had previously been married.

6 The Defendant is a physiotherapist by profession, having qualified as such in 1987. The parties met in 1988, when the Defendant was employed in a physiotherapy practice in Coffs Harbour and the Plaintiff was employed as a receptionist in that practice. Soon thereafter a relationship developed between the parties.

7 Shortly before that time the Defendant’s father had died in France. Later, after the termination of his relationship with the Plaintiff, the Defendant’s mother also died. In consequence of the respective deaths of their father and their mother, the Defendant, conjointly with his sister (they being the only children of their parents), inherited various assets, including a number of items of real property, located in Australia and in France.

8 Of the relationship between the Plaintiff and the Defendant there were born two children, being their daughters Clementine Celeste (born 27 April 1995, who is now aged seven) and Capucine Estelle (born 16 January 1997, who is now aged five). Those children resided with their parents until the separation of the parties in 1998, and have since that separation resided with the Plaintiff (with access allowed to the Defendant). On 22 October 1999 the Family Court of Australia by consent made orders (described by the Defendant as “Final Parenting Orders”) concerning the care and custody of the two children.

9 The parties continued to reside in Coffs Harbour from the commencement of the relationship in October 1988 until they departed on a protracted trip overseas in June 1990. During the period whilst they were residing in Coffs Harbour the parties were living in rented accommodation in Collingwood Street, for which the rent was paid by the Defendant.

10 At the commencement of the relationship (at a time when, it will be appreciated, the Plaintiff was aged only just nineteen) the assets of the Plaintiff consisted of a 1974 Datsun motor car, together with savings of about $2,000. At that time the Defendant (who, it will be appreciated, was some eight years older than the Plaintiff and was aged twenty-seven) had savings of about $10,000 in the ANZ Bank, owned a Suzuki Sierra motor vehicle (to which a value of $6,000 was ascribed), had a one half interest in each of two apartments in Paris and a one half interest in an apartment in Cannes in France, as well as owning the furniture and contents in the Coffs Harbour premises.

11 The Defendant’s father had died in July 1988, shortly before the parties entered into the de facto relationship, and it was in consequence of his father’s death that the Defendant and his sister inherited equally the three residential apartments in France. Subsequently, after the commencement of the de facto relationship, the Defendant received various monetary amounts from his father’s estate, being the equivalent of $21,142 on 31 January 1989, the equivalent of about $6,500 on 15 March 1989, the equivalent of about $3,000 on 17 August 1989, the equivalent of about $8,000 on 29 March 1991, and the equivalent of about $3,750 on 10 December 1991.

12 The parties travelled overseas from June 1990 until April 1991. During part of that period they were in France, where they resided with kinsfolk of the Defendant. Although the Plaintiff made some contribution to their travel expenses, it is apparent that the major part of those expenses was borne by the Defendant. During the period whilst they were travelling the Plaintiff worked for several months as an English speaking nanny to families in Paris.

13 When the parties returned to Australia in April 1991 the Defendant undertook locum work as a physiotherapist for the remainder of that year, whilst the Plaintiff also obtained employment, in various clerical positions.

14 In early 1992 the parties commenced to reside in a studio apartment owned by the Defendant’s mother at Elizabeth Bay, for which they paid rent. At the same time the Defendant commenced to practise as a salaried physiotherapist in a practice at Kogarah.

15 In September 1993 the Defendant entered into a partnership in a physiotherapy practice at Cronulla, and has continued practising as such in that partnership to the present time. That practice is known as Beachside Physiotherapy and Sports Clinic. It was incorporated on 1 November 1995. Since February 1997 that practice, originally located at Surf Road, Cronulla, has been conducted from premises at 2/128-130 Beach Street, Coogee. The Defendant also conducted a separate practice, restricted to outcalls, known as After Hours Mobile Physiotherapy.

16 The parties continued to reside in the Elizabeth Bay apartment until June 1994, when they returned to France for a period of three months. The costs and expenses relating to that holiday were essentially paid by the Defendant. Upon their return from France in September 1994 the parties moved into rented accommodation in a home unit in Parramatta Street, Cronulla. They returned to France for a further holiday of three months from June 1996, also essentially at the expense of the Defendant. (They were accompanied on that holiday by their firstborn child, Clementine, then aged a little over a year.)

17 The rented home unit at Cronulla remained the residence of the parties until 1997, when they purchased as joint tenants the house property at 18 Cross Street, Cronulla. That house property was their matrimonial home until the termination of the relationship in December 1998. The Defendant has continued to reside therein to the present time.

18 That property was purchased for $390,000. In addition, stamp duty and legal costs brought the cost of the property to an amount of about $405,000. That purchase was financed partly by way of a loan, secured by a mortgage, of $200,000 from the ANZ Bank. The balance of the purchase price was provided by the Defendant from the proceeds of sale of one of the apartments owned by the Defendant and his sister in Paris, that being the apartment situate at 48 Rue de Bassano. That apartment had been sold by the Defendant and his sister in 1996. The Defendant’s share of the proceeds was received by him over a period of time, from August 1996 until June 1998. The total amount received by the Defendant was, in Australian currency, almost $250,000.

19 Since the acquisition of the Cross Street property all mortgage payments and outgoings, including council rates, water rates, electricity, gas, telephone, insurances and maintenance, have been paid by the Defendant alone, without any contribution by the Plaintiff.

20 Although the property at 18 Cross Street, Cronulla was originally held by the parties as joint tenants, the Defendant after the termination of the de facto relationship effected a severance of that joint tenancy, and that property is now held by the parties as tenants in common.

21 At the outset of the hearing it was noted that it was agreed between the parties that the present value of the Cross Street property is $775,000 and that there is presently a mortgage over that property to the ANZ Bank in an amount of $135,000.

22 At an early stage in the relationship, only about four or five months after the parties had commenced to reside together, and whilst they were still living in Coffs Harbour, the Defendant in April 1989 purchased a townhouse situate at and known as 5/5 Corombara Crescent, Toormina (which I understand to be in the locality of Coffs Harbour). The purchase price of that property was $69,500, which was funded by way of an advance, secured by mortgage, from the ANZ Bank in the sum of $40,000, the balance being provided by the Defendant (such balance consisting of his savings of $10,000 and the initial payment which he had received from the estate of his late father). That property was purchased by the Defendant as an investment, and has been rented out by him to the present time. The rental payments have been applied to meet mortgage repayments and other outgoings in relation to the property, which is still owned by the Defendant and is still tenanted.

23 For completeness in this regard, it should here be recorded that, according to the Plaintiff, she made some contribution towards the cleaning and the improvement of the Toormina property. Those contributions of a physical nature were, however, conceded by the Plaintiff to have been performed conjointly with the Defendant. The Defendant disputed any such contributions by the Plaintiff.

24 According to the Plaintiff, she contributed $5,000 of her own funds towards the discharge of the mortgage over the Toormina property. However, the Plaintiff did not have any documentary material in support of that assertion, and appeared to be uncertain as to when such an alleged payment had been made. The Defendant denied any such contribution by the Plaintiff towards the discharge of the mortgage.

25 I am not persuaded from the Plaintiff’s evidence that she contributed towards the discharge of the mortgage over the Toormina property.

26 From August 1994 by far the greater part of the income of the household was generated by the Defendant. The Plaintiff was in only part-time employment from August 1994 until she became a full-time mother in April 1995, and was being paid only $200 a week for her part-time employment.

27 When the Defendant entered into partnership in the physiotherapy practice at Cronulla in September 1993 the Plaintiff was employed on a part-time basis by that practice. Subsequently the Plaintiff and the Defendant entered into an income splitting arrangement which appears to have been of some taxation benefit to the Defendant and also which remunerated the Plaintiff in an amount higher than that which she would have received merely from working three days a week for five hours a day.

28 According to the Plaintiff, when the Beachside Physiotherapy and Sports Clinic commenced practice in September 1993 from rented premises in Cronulla the Plaintiff made contributions of a physical nature towards the conservation and improvement of those premises. She said that she participated in the painting of the walls of the premises. However, it emerged under cross-examination that what, in fact, the Plaintiff had done in that regard was to sponge one of the walls in one of the consulting rooms. In addition, the Plaintiff said that she made cushions and cushion covers for the waiting room, an activity which she estimated occupied her for probably a couple of days, and which she performed at weekends.

29 The Plaintiff was also employed, in a part-time capacity, as a receptionist in the Cronulla practice from the time when the Defendant entered into that partnership. However, after the parties returned from Europe in September 1994, the Plaintiff was not in employment, because she was pregnant with their first child. From then until the termination of the relationship the Plaintiff was substantially dependent upon the Defendant’s income from the physiotherapy practice. Any contributions of a physical nature which the Plaintiff made towards assisting the Defendant in that practice (such as arranging appointments on a mobile telephone) was only slight.

30 I have already referred to the manner in which the purchase of the Cross Street property was funded, including a home loan from the ANZ Bank. Subsequently a further loan was obtained, in order to purchase a four wheel drive motor vehicle, being a Honda CRV (1998 model). That latter loan has now been reduced to about $20,000. Since the separation the parties the repayments on that loan have been made by the Defendant, although it was asserted by the Plaintiff that indirectly she contributed towards the repayments of that loan after separation.

31 The Honda CRV motor vehicle which was the subject of that loan, and in respect of which the Defendant has continued to make repayments, has, however, been retained by the Plaintiff since the separation of the parties in December 1998. The Honda motor vehicle is presently unregistered. The Plaintiff does not use that motor vehicle. Indeed, she has acquired another motor vehicle for herself. The attitude of the Plaintiff towards the Honda motor vehicle, and her refusal to deliver it up to the Defendant is difficult to understand. It certainly smacks of vindictiveness. She does not use it herself, she refuses to allow the Defendant to use it. But the Defendant is under an obligation, which he continues to fulfil, to make repayments in respect of that vehicle, which was acquired in October 1998, only about two months before the separation. The purchase price of that motor vehicle was $36,000. The loan was in an original amount of $28,000, the balance being met by way of a trade in of another motor vehicle which was registered in the name of the Plaintiff and which had been acquired by her during the period of the relationship.

32 At the present time the Honda motor vehicle is reposing, unregistered and uninsured, in the garage of the Plaintiff’s grandmother at Chester Hill. Nevertheless, the Plaintiff has now undertaken a significant debt in relation to another more recently purchased motor car.

33 At the termination of the de facto relationship in December 1998 the assets of the Plaintiff consisted of:

One half share as joint tenant with the Defendant in the Cross Street property;

Furniture and personal effects;

Moneys standing to the credit of the Plaintiff in two bank accounts with the ANZ Bank, being Home Loan Interest Saver Accounts;

Honda CRV motor vehicle (1998 model), jointly owned by Plaintiff and Defendant

34 At the termination of the relationship, the assets of the Defendant consisted of:

One half share as joint tenant with the Plaintiff in the Cross Street property;

Townhouse at 5/5 Corombara Crescent, Toormina;

Half interest in property at 18 Boulevarde Montmorency, Paris;

Half interest in property at 6 Avenue des Hesperides, Cannes;
Furniture, furnishings and contents of Cross Street property;
1995 Volkswagon Golf motor vehicle;
Honda CRV four wheel drive motor vehicle (1998 model), jointly owned with Defendant;
Moneys previously held in Mortgage Interest Saver Loan accounts;
Interest in physiotherapy practice, which is conducted by Beachside Physiotherapy and Sports Clinic Pty Limited;
Interest in business, After Hours Mobile Physiotherapy;
Interest in property owned by the physiotherapy practice at 28-30 Beach Street, Coogee;
Moneys standing to the credit of the Defendant in various bank accounts;
Investment bond held for the purposes of the education of the children of the parties, being in amounts respectively $3,155.98 and $3,515.11.

35 It is in the light of the foregoing facts and circumstances that the Court must proceed to a consideration of the claim of the Plaintiff and the cross-claim of the Defendant.

36 I have had the benefit of receiving written outlines of submissions and chronology from Counsel for the respective parties. Those documents will be retained in the Court file.

37 At the outset of the hearing it was stated by Counsel on her behalf that the Plaintiff does not assert an entitlement to an adjustment in her favour of property of the Defendant which had been inherited by him from either of his parents.

38 It was also stated on her behalf that the Plaintiff no longer seeks the relief by way of payment of a lump sum to her by the Defendant by way of financial adjustment pursuant to section 20 of the Act (claimed in prayer 3 of the statement of claim).

39 It is appropriate that I should here set forth the relief claimed by the Plaintiff in the statement of claim, as follows:

(1). That the father pay to the mother spousal maintenance pursuant to section 27 De Facto Relationships Act in the sum of $750 per week, until such time as the youngest child attains school age.

(2). That the mother be entitled to occupy and have exclusive use of the home at 18 Cross Street, Cronulla, until the youngest child attains the age of 18 years or until that home is sold, or transferred in accordance with orders made herein.

(3). That the father forthwith pay to the mother the sum of $400,000 by way of financial adjustment pursuant to section 20 of the De Facto Relationships Act 1984 (NSW).

(4). That the father do all acts and things and execute all deeds, documents, instruments and writings necessary to procure the transfer to the Plaintiff mother free of any encumbrances of all his right title and interest in the property known as and situate at 18 Cross Street, Cronulla (“the home”).

(5). That the Defendant father take all necessary steps, do all necessary things, execute all necessary documents, instruments and writings and pay such moneys necessary prior to the transfer of the home to the Plaintiff mother to procure the discharge of any and all mortgages and securities secured by the home.

(6). That the Defendant father do all acts and things and execute all deeds, documents, instruments and writings necessary to procure the transfer to the Plaintiff mother free of any encumbrances the motor vehicle presently in the possession of the mother being described as a Honda CRV 1998.

(7). That until further order the Defendant be restrained from disposing, encumbering or otherwise dealing with any assets otherwise than in the usual course of business.

(8). That the Defendant father pay the mother’s costs of and incidental to these proceedings.

40 (I should here observe that the references in the foregoing prayers for relief to “the mother” and “the father” are not entirely consistent with the nomenclature ascribed to the parties (“the Plaintiff” and “the Defendant”) in the body of that pleading. However the meaning is reasonably clear.)

41 By his cross-claim, the Defendant seeks the following relief:

(a). An Order that upon the Cross-claimant paying her the sum of $80,000, the Cross-defendant, the Cross-defendant ( sic ) do all acts and things so as to:

(i) transfer to the Cross-claimant all of her right title and interest in the property known as 18 Cross Street, Cronulla;
(ii) transfer to the Cross-claimant all of her right title and interest in the Honda CRV in her possession and deliver it to the Cross-claimant.

(b). Costs.

42 I have already observed that the Plaintiff is no longer seeking relief by way of an order for the payment to her by the Defendant of a lump sum in the amount of $400,000, or in any amount.

43 What the Plaintiff is presently seeking was stated by Counsel on her behalf, as follow:

· That the Plaintiff retain her interest in the Cross Street property.

· That the Plaintiff’s interest in the Cross Street property not be encumbered by a mortgage.

· That the Plaintiff receive a portion (in an unspecified amount) of the Defendant’s interest in the Cross Street property.

· That the entirety of the mortgage over the Cross Street property should be borne by the Defendant.

It was also stated on behalf of the Plaintiff that she is now not seeking to disturb the possession of the Defendant in the Cross Street property.

44 It should here be recorded that it emerged clearly from the evidence that throughout the period of the de facto relationship the Defendant was the primary financial provider (a fact which was expressly acknowledged by the Plaintiff under cross-examination). Also that the Defendant had considerable assets which were acquired by him by way of inheritance, in consequence of the death, before the commencement of the relationship, of his father and in consequence of the subsequent death of his mother, after the termination of the relationship. The Plaintiff does not seek to make any claim against assets which have come into ownership of the Defendant in consequence of the death of his father or of his mother. Neither does the Plaintiff seek any interest in the assets of the company Beachside Physiotherapy and Sports Clinic Pty Limited, which conducts the physiotherapy practice of which he is one of the two principals and which is the owner of the premises from which that practice is conducted.

45 The only asset of the Defendant in respect of which an order for adjustment is sought by the Plaintiff is the Cross Street property. Nevertheless, it was submitted on behalf of the Plaintiff that the fact that that was the only asset in respect of which relief was being sought by way of an order for adjustment did not mean that the entirety of the assets of the parties (including assets which had come into the ownership of the Defendant by way of inheritance) should not be taken into account by the Court in determining the contributions made by each party of the nature described in paragraphs (a) and (b) of section 20(1) of the Act.

46 The contributions of the Plaintiff to the relationship were essentially of a non-financial nature. They were chiefly contributions by her in her capacity as homemaker and mother. The Defendant frankly conceded, indeed volunteered, that the Plaintiff was an excellent mother to their two children. That frank admission on the part of the Defendant was in marked contrast to the very grudging acknowledgement by the Plaintiff that the Defendant might have made some slight contribution in his role as father to the children.

47 The Plaintiff’s mother, Mrs Valerie Ruth Thompson, was equally grudging and unforthcoming of her acknowledgment of any performance by the Defendant in his role as parent to the two children. Whilst the Plaintiff was obviously the principal carer of the children, since the Defendant was working for lengthy periods each day in his physiotherapy practice, I am satisfied that the Defendant also made contributions in the roles of homemaker and parent, although those contributions in those roles were not as great as those of the Plaintiff in the equivalent roles.

48 Section 20(1) of the Property (Relationships) Act provides,

On an application by a party to a domestic relationship for an order under this Part to adjust interests with respect to the property of the parties to the relationship or either of them, a court may make such order adjusting the interests of the properties in the property as to it seems just and equitable having regard to:

(a) the financial and non-financial contributions made directly or indirectly by or on behalf of the parties to the relationship to the acquisition, conservation or improvement of any of the property of the parties or either of them or to the financial resources of the parties or either of them, and

(b) the contributions, including any contributions made in the capacity of homemaker or parent, made by either of the parties to the relationship to the welfare of the other party to the relationship or to the welfare of the family constituted by the parties and one or more of the following, namely:

(i) a child of the parties,
(ii) a child accepted by the parties or either of them into the household of the parties, whether or not the child is a child of either of the parties.

49 The contributions of the Plaintiff from at least the time when the elder child Clementine was born in April 1995 were chiefly contributions of the nature described in paragraph (b) of section 20(1) of the Act, being contributions “made in the capacity of homemaker or parent… to the welfare of the other party to the relationship or to the welfare of the family constituted by the parties and… a child of the parties…”.

50 In the instant case the foregoing contributions by the Plaintiff were of significance. The Defendant also made contributions in the capacity of parent, although, since the Defendant was in full time employment in his professional practice, those contributions in his capacity as parent were less than the contributions by the Plaintiff in the capacity of parent.

51 Contributions made in the capacity of homemaker or parent should not necessarily be treated as being of less significance or less value than financial and non-financial contributions made to the acquisition, conservation or improvement of any of the property of the parties. In my conclusion, in the circumstances of the instant case, it is appropriate to equate the contributions made by the Plaintiff in her capacity of homemaker or parent with the contributions made by the Defendant to the acquisition, conservation or improvement of the property of the parties or either of them during the same period.

52 Reference has already been made to the income splitting arrangement into which the parties entered, essentially for the taxation benefits flowing therefrom to the Defendant. The additional weekly income thus received by the Plaintiff totalled an amount of about $48,000. That amount was largely contributed by her towards the reduction in the mortgage debt upon the Cross Street property. The Plaintiff relied upon that fact in support of her submission that she had, in that regard, made direct financial contributions towards the acquisition of the Cross Street property. To the extent that she was using her own money to reduce the mortgage debt, that is true. It must, nevertheless, be appreciated, that the source of those funds was not the actual work performed by the Plaintiff as a part-time employee of the physiotherapy practice. The source of those additional funds was the professional work performed by the Defendant in the physiotherapy practice. I do not see how, in consequence of the income splitting arrangement, the Plaintiff can establish that the funds which were paid by her towards the reduction of the mortgage debt constituted a direct, or indirect, contribution towards the acquisition of the Cross Street property, where, as here, the original source of those funds was the professional work performed by the Defendant, and where, had the Defendant so chosen, those funds could quite properly have been retained by him.

53 Evidence was placed before the Court concerning the financial and material circumstances of each party since the termination of the de facto relationship and to the date of the hearing, and also concerning the expected future contributions by the Plaintiff towards the maintenance and welfare of the two young children of the parties.

54 It should be recognised that the purpose of the Property (Relationships) Act is remedial (see New South Wales Law Reform Commission, Report on De Facto Relationships, quoted by Gleeson CJ and McLelland CJ in Eq in Evans v Marmont (1997) 42 NSWLR 70 at 80-81; Jones v Grech (2001) NSWCA 208, per Ipp AJA at 76). The discretion vested in the Court by section 20(1) of the Act is to be exercised “having regard to” the contributions of the nature described in paragraphs (a) and (b) of that subsection.

55 In Roy v Sturgeon (1986) 11 NSWLR 454 Powell J (as he then was) said, at 464,

The fact that it is not the policy of the Act to elevate the status of a “de facto partner” to that of a party to a marriage, would in my view, be enough to caution one against too readily embracing the decisions of the Family Court of Australia as to the matters to which that Court might legitimately have regard when dealing with applications under section 79 of the Family Law Act 1975 (Commonwealth). That caution is, however, reinforced by the fact that there are differences between the language of section 20 of the Act on the one hand, and of section 75(2) and section 79(4) of the Family Law Act 1975 (Commonwealth) on the other, which differences are, in my view, significant.

56 Powell JA in Jones v Grech, at 12, quoted the foregoing passage from his judgment in Roy v Sturgeon, and emphasised that the statutory regime under the Property (Relationships) Act is different from that under the Family Law Act 1975 (Commonwealth). (See, also, Black v Black (1991) 15 FamLR 109 at 113 per Clarke JA; Wallace v Stanford (1995) 37 NSWLR 1 at 23 per Sheller JA; Evans v Marmont at 79-80 per Gleeson CJ and McLelland CJ in Eq.)

57 The Plaintiff attempted to derive some comfort from the provisions of section 21 of the Property (Relationships) Act. That section does not in its terms purport to amend the clear words of section 20. There is nothing in the decision of Master Macready in Ledwos v Angilley [2001] NSWSC 618 (12 October 2001) to suggest otherwise.

58 In exercising the discretion under section 20(1) of the Property (Relationships) Act, it seems to me that, consonantly with the foregoing decisions of the Court of Appeal, the present financial and material circumstances of the parties, and, in particular, the present needs of the Plaintiff, should not be taken into consideration. The Court should not be diverted from the clear words of the statute. In exercising its discretion to “make such order adjusting the interests of the parties in the property as to it seems just and equitable” the Court must have regard to the contributions of the nature then set forth in paragraphs (a) and (b) of the subsection. As I understand the foregoing decisions of the Court of Appeal, it is not legitimate for the Court to have regard to present or future needs of the parties; it should have regard only to contributions of the nature set forth in the subsection. (See Matheson v Wallis [2001] NSWSC 931, McLaughlin M, 22 October 2001, an appeal from which was dismissed by the Court of Appeal on 11 October 2002, sub nomine, Wallace v Matheson [2002] NSWCA 350.)

59 It is clearly necessary in this regard to exercise the caution counselled by Powell J in Roy v Sturgeon. The principles disclosed in the relevant provisions of the two statutes are that the Property (Relationships) Act looks to past contributions, whereas the Family Law Act looks also to present and future needs.

60 I propose, therefore, in considering the claim of the Plaintiff for adjustment of interests in property under section 20(1), to disregard evidence concerning the present and likely future needs of the parties.

61 The Plaintiff, however, submitted that the Court should take into consideration the contributions made by her, and to be made by her in the future, to the welfare of the children after the termination of the relationship. The decision of Bryson J in Foster v Evans (1997) DFC95-193 at page 77,681, where His Honour referred to post-separation contributions to the “family”, appears to be relied upon by the Plaintiff as offering some comfort to her in this regard. However that decision does not support the submission by Counsel for the Plaintiff that contributions made after the termination of the relationship by one partner to the welfare of the children of the relationship, but not to the welfare of the other partner, come within contributions of the nature recognised by section 20(1)(b) of the Act. That paragraph is quite specific in its reference to “the welfare of the family constituted by the parties and one or more of the following, namely: (i) a child of the parties…” (italics supplied).

62 In the instant case the contributions asserted and relied upon by the Plaintiff were made by her, and are proposed to be made by her, to the welfare of herself and the two children – that is, to a unit constituted by only one of the parties and children of the parties. Such a unit is not to be equated to “the family constituted by the parties and [the children] of the parties” referred to in subsection (b) of section 20(1).

63 Although, at least in theory, the possibility exists of one partner making contributions to a family unit consisting of himself (or herself) and the other partner and the children after the termination of the de facto relationship, that clearly is not the situation in the instant case, where the contributions relied upon by the Plaintiff in support of, or as enhancing, her claim, are not contributions already made by her, or proposed to be made by her, to the family constituted by herself, the Defendant and their two children, but are contributions only made or proposed to be made by her either to the children alone or to herself and the two children.

64 Accordingly, contributions made by the Plaintiff towards the maintenance of her children after the termination of the de facto relationship are not contributions falling within paragraph (b) of section 20(1), and thus are not contributions to which, by that subsection, the Court in the exercise of its discretion should have regard. (See Matheson v Wallace, supra.)

65 In the circumstances of the instant case it must constantly be borne in mind that from the acquisition of the Cross Street property until the termination of the relationship the Plaintiff held both a legal and an equitable interest as to one undivided half share in that property as a joint tenant with the Defendant. There was not then and there cannot be now any suggestion that the entitlement of the Plaintiff in the Cross Street property was ever less than a half interest with the Defendant. There was no suggestion during the course of the relationship that the Plaintiff held her interest in any way on trust for the Defendant.

66 I have already recounted how after the termination of the relationship, and without the knowledge or consent of the Plaintiff, the Defendant (as he was legally so entitled) severed the joint tenancy, with the effect that the Cross Street property is now held by the parties as tenants in common in equal shares. Once again, there can be no suggestion that the interest of the Plaintiff in the Cross Street property is in any way less than a one half interest therein. It is abundantly clear that from the time of the acquisition of the Cross Street property it was the intention of both parties, no less of the Defendant than of the Plaintiff, that the legal title to the property, as joint tenants in equal shares, reflected the beneficial interests of the parties in the property. The termination of the relationship had no effect upon those legal and beneficial interests.

67 The foregoing arrangement, intended by the parties and recognised by them in the ownership of the Cross Street property, reflects the fact that at the time when that property was acquired the parties were in a loving and committed relationship. (In this regard it is relevant that, although it was the evidence of the Defendant that he had no wish or desire to marry, he had in September 1992 given to the Plaintiff a diamond ring, which it was thereafter the practice of the Plaintiff to wear upon the ring finger of her left hand (see Exhibit H) and to refer to as an engagement ring. Moreover, the Defendant had on 1 March 1995 made a will by which he left his entire estate, other than the apartment in Paris, to the Plaintiff.)

68 As I have already recorded, it was agreed between the parties that the present value of the Cross Street property is $775,000. In consequence, therefore, the entitlement of the Plaintiff to a one half interest in that property, is worth $387,500. Proportionately her liability in respect to the mortgage debt over that property ($135,000) is $67,500. In consequence, therefore, the value of the beneficial interest presently held by the Plaintiff in the Cross Street property is $320,000.

69 The Plaintiff is seeking an order the effect of which is that she retain her legal half interest in the property, and that that half interest not be encumbered by mortgage. To effect that result, it would be necessary for the Defendant to pay to the Plaintiff an amount representing one half of the present mortgage debt, or to effect a discharge of the mortgage over the half share owned by the Plaintiff as tenant in common, which would require the payment by the Defendant of $67,500. In addition, the Plaintiff is seeking a transfer to her of part of the interest of the Defendant in the house property (in an unspecified sum).

70 The Defendant, on the other hand, is seeking relief the effect of which would be that the Plaintiff’s interest in the property, which is presently worth, upon my foregoing calculations, $320,000, should be transferred by her to the Defendant in return for the payment to her of $80,000.

71 When the contributions by the Plaintiff to the relationship, of the nature specified in section 20(1) of the Act, as already outlined by me, are taken into consideration, it is abundantly apparent that it would not be just and equitable for that interest which is worth $320,000 to be transferred to the Defendant in return for $80,000. I do not propose to accede to that application on the part of the Defendant. It seems to me that it is proper that the Plaintiff should retain her legal and equitable interest in the Cross Street property. However, the Plaintiff has not in my conclusion established an entitlement to have discharged at the cost of the Defendant the mortgage over the Plaintiff’s one half interest in the Cross Street property. If the Defendant is desirous of acquiring that interest from the Plaintiff, then he should pay her $320,000 for her interest therein. That interest is, of course, subject to the mortgage. If the Defendant acquires the interest of the Plaintiff, then the Plaintiff should be discharged from all liability in respect to that mortgage.

72 But neither do I consider that it would be just or equitable for any part of the interest of the Defendant to be, as was sought on behalf of the Plaintiff, transferred to the Plaintiff.

73 In respect to the Cross Street property, I am of the view that the legal and equitable interests of the parties therein, represented by each being a registered proprietor as to one half share as tenant in common, should be preserved. If either party wishes to acquire the interest of the other party, then the appropriate purchase price in my conclusion is $320,000 for the half interest, that half interest being subject to the present mortgage. If either party wishes to acquire an unencumbered interest from the other party then the appropriate purchase price is $387,500.

74 I turn now to the other significant item of relief which is sought by the Plaintiff.

75 By prayer 1 in the statement of claim the Plaintiff seeks an order that the Defendant pay to her spousal maintenance, pursuant to section 27 of the Act, in the sum of $750 a week, until such time as the younger child attains school age.

76 Maintenance is dealt with in Division 3 of Part 3 of the Act.

77 The policy of the Act concerning maintenance is expressed in section 26, as follows,

A party to a domestic relationship is not liable to maintain the other party to the relationship, and neither party is entitled to claim maintenance from the other, except as provided in this Division.

78 (It will be appreciated that the phrase “domestic relationship” in the Act encompasses a de facto relationship: section 5(1).)

79 Provision is then made in section 27 for the Court to have discretion to make an order for maintenance. Subsection (1) of that section is as follows,

On an application by a party to a domestic relationship for an order under this Part for maintenance, a court may make an order for maintenance (whether for periodic maintenance or otherwise) where the court is satisfied as to either or both of the following:

(a) that the applicant is unable to support himself or herself adequately by reason of having the care and control of a child of the parties to the relationship or a child of the respondent, being, in either case, a child who is, on the day on which the application is made:
(i) except in the case of a child referred to in subparagraph (ii) – under the age of 12 years, or
(ii) in the case of a physically handicapped child or mentally handicapped child – under the age of 16 years,
(b) that the applicant is unable to support himself or herself adequately because the applicant’s earning capacity has been adversely affected by the circumstances of the relationship and, in the opinion of the court:
(i) an order for maintenance would increase the applicant’s earning capacity by enabling the applicant to undertake a course or programme of training or education, and
(ii) it is, having regard to all the circumstances of the case, reasonable to make the order.

80 The Plaintiff does not seek to rely upon paragraph (b) of section 27(1). She relies only upon the provisions of paragraph (a)(i) of section 27(1).

81 It is of significant relevance to the claim by the Plaintiff for spousal maintenance that the Plaintiff is in receipt of maintenance from the Defendant pursuant to an order of the Child Support Agency. That maintenance is in a present total amount of $976.42 a month. (In this regard it is appropriate to record that the Defendant did not inform the Child Support Agency of his ownership of the properties in France, although, according to him, the Agency was aware of those properties.)

82 It was acknowledged on behalf of the Plaintiff that there should not be, and that the Plaintiff does not attempt to participate in, what (in the words of Counsel for the Plaintiff) was described as “double dipping” in respect to the claim for maintenance under section 27 and the continuing contribution towards the maintenance and welfare of the children, which, in the submission of the Plaintiff, is an element to be considered in the claim by the Plaintiff for adjustment of interests in the Cross Street property, pursuant to section 20(1). In this regard, it was stated by Counsel on her behalf that the preferred position of the Plaintiff is that she is prepared to forego spousal maintenance and to receive as a component of her order pursuant to section 20(1) a factor reflecting the continuing maintenance of her children. It was here conceded by Counsel for the Plaintiff that the evidence was not sufficiently clear as to entitle the Plaintiff, without difficulties, to an order for spousal maintenance.

83 I have already expressed my conclusions concerning the relevance to be placed upon the contributions which have been made and are to be made by the Plaintiff since the termination of the relationship to the maintenance of the children of the relationship. As to the application for spousal maintenance, I am in agreement with the foregoing concession stated by Counsel for the Plaintiff concerning the evidence in this regard.

84 I am not satisfied that the Plaintiff has established that she is unable to support herself adequately by reason of having the care and control of the children of herself and the Defendant (it being recognised that each of those two children is presently under the age of twelve years). The maintenance which is being paid by the Plaintiff through the Child Support Agency is quite adequate for the support and maintenance of the children. The Plaintiff’s own circumstances are such that she regarded herself as being in a position where she could not only leave unregistered and uninsured, and totally unused, the Honda motor vehicle, but where at the same time she acquired a new motor vehicle (and in doing so incurred a not insignificant debt which she repays at the rate of $400 a month).

85 In my conclusion, the Plaintiff has not established an entitlement to spousal maintenance. I consider it was very proper of Counsel for the Plaintiff expressly to recognise the inadequacy of the evidence supporting this claim of the Plaintiff.

86 It was also acknowledged by Counsel for the Plaintiff that if (as I do) I hold that the Plaintiff is not entitled to spousal maintenance, that conclusion has no relevance to and no bearing upon the claim of the Plaintiff under section 20 of the Act.

87 The only other matter which is the subject of relief is the Honda motor vehicle. It seems to me that it is appropriate, since the Plaintiff has no use for that vehicle, and is content to allow it to remain unused, unregistered and uninsured, and since all payments in respect to that vehicle have been made by the Defendant, that the Plaintiff should transfer her interest in that vehicle to the Defendant, and should deliver up the vehicle itself to the Defendant. The Defendant will of course then be solely responsible for paying the loan in respect to that vehicle.

88 I summarise, therefore, my foregoing conclusions.

89 It is not appropriate that I make any order adjusting the interests, whether legal or equitable, of the parties in the Cross Street property. Their interests as tenants in common in equal shares, subject to the existing mortgage, should be preserved. If either party is desirous of purchasing the interest of the other party in the Cross Street property (subject to the present mortgage), then he or she must pay to the other party the sum of $320,000. If that party is desirous of purchasing the unencumbered interest of the other party, then the amount which he or she must pay will be $387,500.

90 I reject the claim of the Plaintiff for spousal maintenance.

91 The Plaintiff should transfer to the Defendant her interest in the Honda motor vehicle, and deliver up that vehicle to the Defendant, the Defendant accepting full responsibility for all outstanding loan indebtedness in respect to that vehicle, and indemnifying the Plaintiff in regard to that indebtedness.

92 I have not heard any submissions concerning costs. In this regard, however, it will be appreciated that at the outset of the hearing the Plaintiff abandoned a very significant part of her claim, being the claim for payment of a lump sum of $400,000. The Plaintiff has not been successful in achieving more than a preservation of her legal entitlement in the Cross Street property. She has been unsuccessful in her application for spousal maintenance.

93 On the other hand, however, the Defendant, who sought to obtain the Plaintiff’s interest in the Cross Street property in return for the payment by him of $80,000 has been unsuccessful in obtaining such relief. If he is desirous of acquiring the Plaintiff’s interest in that property, he must pay to her the sum of $320,000, and that interest will still be subject to a mortgage.

94 It cannot be said that either party has been largely successful in obtaining the relief which she or he has sought in their respective pleadings. My preliminary view is that I should make no order as to costs, to the intent that each party will bear her or his own costs of the proceedings.

95 However, should either party be desirous of seeking some other costs order, then of course an opportunity will be afforded to that party to do so.

96 I propose, therefore, to stand the matter over to a date to be fixed, for the bringing in of short minutes, and for any argument as to costs.

97 I make the following order.

(1). I stand the matter over to a date to be fixed by arrangement with my Associate for the bringing in of short minutes to reflect my foregoing conclusions and, if desired, for argument as to costs.

**********

Last Modified: 03/06/2003