THORBURN and OSWALD

[2007] FCWA 43

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: THORBURN and OSWALD [2007] FCWA 43

CORAM: THACKRAY J

HEARD: 13 DECEMBER 2006

DELIVERED : 26 MARCH 2007

FILE NO/S: PT 494 of 2006

BETWEEN: MR THORBURN

Applicant

MS OSWALD
Respondent

Catchwords:

PROPERTY SETTLEMENT - jurisdiction; DE FACTO RELATIONSHIPS - whether 2 years' duration - aggregate periods - whether substantial contributions - whether serious injustice

Legislation:

Family Court Act 1997, s 205X
Family Court Act 1997, s 205Z
Interpretation Act 1984, s 13A

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr Jones

Respondent: Mr Godecke

Solicitors:

Applicant: Kott Gunning

Respondent: Griffiths & Godecke

Case(s) referred to in judgment(s):

George v Hibberson (1987) DFC 95-054

L & C [2005] FCWA 23

Thompson v Badger (1990) DFC 95-078

Varga and Kelty [2005] FCWA 80

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL
JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN

CHANGED

1[Mr Thorburn] and [Ms Oswald] were involved in a relationship from January 2002 until about May 2005. Mr Thorburn commenced proceedings for property settlement under the Family Court Act 1997 in January 2006. Ms Oswald seeks the dismissal of the application on the basis the Court lacks jurisdiction.

2The preliminary issue is whether Mr Thorburn and Ms Oswald lived in a de facto relationship for more than two years. If they did not, Mr Thorburn’s application must be dismissed unless he can establish that he made substantial contributions within the meaning of the Act (and that failure to make the orders he seeks would result in serious injustice).

Brief background

3Mr Thorburn is 39 years of age and is presently in receipt of workers’ compensation payments. Ms Oswald is 28 years of age and is employed as a [receptionist]. Mr Thorburn was previously married and has two children of that marriage. Ms Oswald has no children.

4Mr Thorburn and Ms Oswald met in January 2002 and quickly commenced an intimate relationship. At the time, Ms Oswald was living in the property she owned in [Suburb A]. There is a dispute as to the extent to which Mr Thorburn lived with Ms Oswald in her Suburb A property.

5Mr Thorburn moved to [Melbourne] in July 2002. Ms Oswald went over to join him about six weeks later. The parties resided together in Melbourne for about three months. Ms Oswald acknowledged that they were living in a de facto marriage relationship in this period. She left the relationship in December 2002 and returned to Perth.

6Ms Oswald sold her property in Suburb A in early January 2003. The parties commenced seeing each other again later that month, after Mr Thorburn returned to Perth. Although Ms Oswald conceded they commenced cohabitation again in March 2003, I consider it more likely, for reasons I will explain later, that they did not recommence cohabitation until May 2003.

7The parties continued to reside together in a property at [Suburb M] until Mr Thorburn moved out in October 2003 (according to Ms Oswald) or December 2003 (according to Mr Thorburn). Mr Thorburn soon afterwards obtained his own rental accommodation in Suburb P].

8Mr Thorburn claims the parties “reconciled” in February 2004 and that they again lived in a de facto marriage relationship, moving back and forward between each other’s home. Ms Oswald accepts that they had an on-again, off-again relationship during 2004, which involved some “sleepovers” in each other’s residence, but denies that they resided together on a full-time basis. She regards their “reconciliation” as taking place at Christmas 2004. It was around this time the parties began to make long-term plans in earnest together. They looked carefully into buying a home together and in February 2005 they became engaged to be married.

9Mr Thorburn claims that Ms Oswald moved into his home in Suburb P full-time in November 2004. Ms Oswald denies this and says they did not resume cohabitation until March 2005, when Mr Thorburn moved back into her Suburb M home. In any event, their time together was once again short-lived. In May/June 2005 they separated for the final time when Ms Oswald moved out of the property.

The law

10Part 5A of the Family Court Act 1997 confers jurisdiction on the Court to make orders for settlement of property owned by parties who have lived in a de facto relationship.

11Section 205Z of the Act provides as follows:-

“205Z(1) [Requirements to be satisfied]

A court may make an order in relation to a de facto relationship only if satisfied -

(a)there has been a de facto relationship between the partners for at least two years;

(b)there is a child of the de facto relationship who has not yet attained the age of 18 years and failure to make the order would result in serious injustice to the partner caring or responsible for the child; or

(c)the de facto partner who applies for the order made substantial contributions of a kind mentioned in section 205ZG(4)(a), (b) or (c) and failure to make the order would result in serious injustice to the partner.

205Z(2) [Considerations to determine length of relationship]

In deciding whether there has been a de facto relationship between the partners for at least two years, the court must consider whether there was any break in the continuity of the relationship and, if so, the length of the break and the extent of the breakdown in the relationship.

205Z(3) [Matters for consideration not limited]

Subsection (2) does not limit the matters the court may consider.”

12By virtue of s 13A of the Interpretation Act 1984, the term “de facto relationship”, in the Family Court Act 1997 is to be construed as a reference to a relationship (other than a legal marriage) between two people “who live together in a marriage-like relationship”. Section 13A(2) provides that the following factors are indicators of whether or not a de facto relationship exists, although they are not essential:

(a)the length of the relationship;

(b)whether they have resided together;

(c)the nature and extent of common residence;

(d)whether there is, or has been, a sexual relationship;

(e)the degree of financial dependence or interdependence, and any arrangements for financial support;

(f)the ownership, use and acquisition of their property (including property they own individually);

(g)the degree of mutual commitment to a shared life;

(h)whether they care for and support children;

(i)the reputation, and public aspects, of the relationship.

The alleged periods of de facto relationship

13Mr Thorburn claimed that he and Ms Oswald lived in a de facto marriage relationship during the following periods:

•January to December 2002;

•14 January 2003 to December 2003; and

•February 2004 to June 2005.

14I have previously had occasion to consider whether or not it is possible to aggregate periods during which parties have lived in a de facto marriage relationship in order to establish the two year period. In my judgment in L & C [2005] FCWA 23 a copy of which can be viewed on the Family Court of Western Australia website), I found it was possible. Ms Oswald’s counsel did not ask me to depart from the view expressed in that matter, but argued that the total periods in which the parties lived in a de facto marriage did not exceed 15 months. These were said to comprise the following:

•September to December 2002;

•March 2003 to October 2003; and

•March to May/June 2005.

Credibility

15It was not easy to weigh-up the parties’ evidence on contentious matters, since the affidavit Ms Oswald relied on at trial was one sworn in reply to Mr Thorburn’s affidavit filed in interim proceedings, whereas he relied at trial on a freshly drafted affidavit. Mr Thorburn’s first affidavit contained a chronology of the parties’ relationship which he now acknowledges was quite inaccurate. He explained his error by saying that the instructions he gave to his solicitors about dates used in the affidavit were taken “from the top of my head”. Although this did not inspire great faith in the reliance to be placed on Mr Thorburn’s credibility, I accept that he was not actively attempting to mislead the Court, but rather had become genuinely confused over the passage of time about the order of events.

16Although I was prepared to make allowances for the serious errors in the chronology in Mr Thorburn’s original affidavit, I nevertheless did not find him to have a particularly reliable memory. Furthermore, my impression was that he was rather too inclined to say whatever he thought might best support his case. This applied not only to his oral evidence, but also to his affidavit evidence. By way of one small example only, Mr Thorburn claimed in his trial affidavit that even after Ms Oswald left him in Melbourne and came home to Perth, they “continued to communicate as if we were together”.

17In some instances, evidence given by Mr Thorburn’s witnesses conflicted directly with his own evidence. One example of this was the evidence relating to the contact he had with his children. Another example was the difference between his account of when he started living with Ms Oswald in Suburb A and the version given by his best friend, [Mr Beck], with whom he was living until he allegedly commenced living at Suburb A.

18There were also inconsistencies in some of Ms Oswald’s evidence. Nevertheless, she gave her oral evidence in a confident and forthright fashion and was very ready to make concessions that would appear to be against her interest. The way in which she gave her evidence, and the extent to which it was corroborated by other evidence, gave me a degree of satisfaction that where there were discrepancies between her testimony and that provided by Mr Thorburn, her version should generally be preferred.

19A number of witnesses were called by both parties. I accept most of the evidence given by both of Ms Oswald’s parents in their affidavits, since neither of them was required for cross-examination. (There was at least one minor internal inconsistency – see para 4 and 5 of the affidavit of Ms Oswald’s mother). I also found Ms Oswald;s former housemate, [Ms Boyle], to have a good memory for dates and to be a generally reliable witness.

20The affidavits sworn by the witnesses called by Mr Thorburn were poorly drafted and objection was successfully taken to large portions of them. The evidence that was not struck out often suffered from a lack of precision. For instance, Mr Beck might have been expected to be in a position to give helpful evidence on a number of contentious matters; however, his affidavit evidence was given in a vague and unhelpful fashion. For example, he said that “[Ms Oswald] and [Mr Thorburn] were together at the time” when he first met Ms Oswald. There was no clear indication as to whether they were physically together in the same room; together as boyfriend-girlfriend; or living together.

21Notwithstanding the lack of precision in important parts of their evidence, I was nevertheless satisfied that Mr Thorburn’s witnesses did their best to give truthful testimony. It is not surprising, after the passage of time, that memories fade and that witnesses were unable to be specific about the factual matters that led them to form opinions about the nature of the relationship between Mr Thorburn and Ms Oswald. Whilst this is understandable, the onus falls on Mr Thorburn to establish that he and Ms Oswald lived in a de facto marriage relationship for more than two years. His case undoubtedly suffered by virtue of the fact that much of the evidence on which he relied was vague and inconclusive.

22I should also say that I consider Mr Thorburn was clutching at straws in seeking to rely on photographs as evidence of the nature of his relationship with Ms Oswald. Presuming the photographs were taken on the dates claimed, they were useful evidence of the fact that the parties were at the same place at specific times and quite possibly on friendly terms. The photograph showing Ms Oswald wearing an engagement ring would also have been of significance if she had denied the engagement. Otherwise, it was quite futile to suggest that photographs could be of much help in determining whether the parties were living in a de facto marriage relationship or were just friends.

Findings of fact

23I will set out my findings by reference to the three periods during which Mr Thorburn says the parties were living in a de facto marriage relationship.

January to December 2002

24Mr Thorburn claims that he commenced cohabitation with Oswald at her home in Suburb A in about January 2002. He says they lived there together for about six months (or eight months in his first affidavit), during which time he claims he paid for all of the food and half of the household utilities as well as undertaking landscaping works. He claims that the only period during which they were separated in this time was for a period of about 4 days, following an argument.

25Ms Oswald acknowledges that the parties quickly commenced a sexual relationship when they met in January 2002. She also admits that after a while Mr Thor moved some of his possessions to her home, but she says these were there for storage only. She acknowledges the parties saw a good deal of each other during this time. I did not understand her to deny that Mr Thorburn stayed overnight with her regularly, but she does deny that he made the financial contributions claimed.

26Mr Thorburn’s evidence suggesting he started living in Suburb A early in 2002 was contradicted by that given by Ms Boyle, who was boarding in the home until April that year. She says he did not live in the home during the time she was boarding there. Mr Thorburn’s evidence is also contradicted by the oral evidence given by Mr Beck, who said that, to the best of his recollection, Mr Thorburn had been living with him up to a few weeks (or maybe a month or two) prior to Mr Beck buying the home he acquired in [Suburb D] in June 2002. Mr Thorburn’s evidence is also contradicted by that given by Ms Oswald’s mother in para 6 of her affidavit – and she was not required for cross-examination.

27Mr Thorburn’s oral evidence departed from the claim he made in his affidavit that cohabitation had commenced in Suburb A as early as January 2002. In cross-examination he said he spent at least the first six weeks of 2002 living with Mr Beck and he thought cohabitation only commenced in February or March of that year. He denied that Ms Boyle was living in the home at the time that he moved in, claiming instead that she was living around the corner with her boyfriend and running a home day-care centre. Ms Boyle, who appeared to have a good memory for dates, said she did not start living with her boyfriend and running the day care centre any earlier than June 2002.

28Mr Thorburn also acknowledged that during the first half of 2002 he was in receipt of Centrelink benefits but did not inform Centrelink that he was living in a de facto marriage relationship. He admitted that mail sent to him by Centrelink was addressed to Mr Beck’s residence (although he claims that Ms Oswald and he would go to see Mr Beck once a fortnight to collect his mail). If, in fact, Mr Thorburn was living in Suburb A for as long as six months, it would have been reasonable to assume that he would tell Centrelink he had changed his address. It is, of course, possible he was misleading Centrelink by failing to disclose a relationship with a partner who was in full-time employment, but he can hardly expect to be given the benefit of any doubt (if in fact doubt existed) about such a matter.

29I am not satisfied that the parties lived in a de facto marriage relationship at all in the period leading up to Mr Thorburn’s departure for Melbourne in the middle of 2002. I find that Mr Thorburn regularly visited Ms Oswald in her Suburb A home after January 2002 and probably stayed overnight quite often. I am prepared to accept also that he may have started living there most (or even all) of the time for the last month or two prior to his departure to [Victoria]. I am satisfied he made no more than a modest contribution to household expenses and outgoings during the times he visited her. I also accept that he did a limited amount of landscaping/gardening at the Suburb A residence. Nevertheless, I am not satisfied that the parties’ relationship in this period was anything more than that of boyfriend and girlfriend. Apart from anything else, I did not find any evidence of any mutual commitment to a shared life or any intermingling of financial resources, save for the sort of arrangements one often sees amongst mere housemates.

30After Mr Thorburn left for Victoria, the parties did not resume living in the same residence until the first half of September 2002, when Ms Oswald joined him in Melbourne. They spent a few weeks living together in a boarding house and then obtained rental accommodation together. They continued living together until December 2002, when Ms Oswald returned to Western Australia, having advised family and friends that she was being verbally and physically mistreated by Mr Thorburn. The parties claim to have informed Centrelink whilst they were in Melbourne that they were living together.

31I am prepared to accept that the parties were living in a de facto marriage relationship for the period of about three months that they were together in Melbourne (not six months as Mr Thorburn claimed in his first affidavit). They were continuing to have a sexual relationship. They had acquired a rental property in joint names. They were each contributing to the expenses of the household. They had informed the relevant authorities of the fact they were living together.

January – December 2003

32When Ms Oswald returned to Western Australia in December 2002, the relationship appeared to be at an end. Nevertheless, in about the middle of January 2003, the parties met at a restaurant. Mr Thorburn claims that their de facto relationship resumed almost immediately and that they were “together” on his birthday [in] January 2003.

33I am satisfied that the parties started going out together in January 2003 and resumed their sexual relationship, but I am not satisfied that they recommenced a de facto marriage relationship immediately. Not only were they not living together, I also find that Ms Oswald was wary about resuming a relationship with Mr Thorburn in view of the conflict they had experienced in Melbourne.

34Whilst Ms Oswald was prepared at times to concede in her evidence that the parties resumed cohabitation in March 2003, I consider that her memory was probably not entirely accurate, since most of the other evidence suggests that the parties did not resume living together until after she had acquired her home in Suburb M. The settlement of the sale of that property did not take place until 30 April 2003. I accept other evidence given by Ms Oswald that although Mr Thorburn helped her move into Suburb M, he did not in fact move into the property until a week or so later. Accordingly, I am not satisfied that the parties resumed cohabitation until some time in May 2003 (although the outcome of these proceedings would be no different if I accepted that they commenced cohabitation in March).

35I accept that in the period before resuming cohabitation at Suburb M, the parties were staying together on weekends and perhaps even on occasions during the week. I also accept that they saw Mr Thorburn’s children and his friends together and went away camping together. None of these things on their own, or together, support a finding that the parties had resumed living in a de facto marriage relationship prior to the time that they actually took up residence together. In this regard, although related to differently worded legislation, I agree with the views expressed by Cohen J in George v Hibberson (1987) DFC 95-054 (which I note were also cited with approval by Young J in Thompson v Badger (1990) DFC 95-078 at 76,104):

"The use of the words “living or having lived together as husband and wife on a bona fide domestic basis” suggest a degree of permanence which will not cease merely because one party separates for the purpose of going on holidays or going on business. Nor would it cease if, after an argument, one party moved out and stayed elsewhere for a short while or went home to his or her family, if there was an intention to return and if there was a reasonable indication of that intention. …

It must be a question of fact whether on separation one party intended that there should be an end to the relationship or whether the parties or either of them acted in such a way as would indicate that that intention existed. Once that intention or indication is found to exist then, as occurred in McRae v. McRae [(1967) 68 SR (NSW) 361], the relationship will only be renewed when the parties actually return and live together. It would not be sufficient merely to form an intention to enter into an agreement to resume life together." (my emphasis added).

36In my view, Ms Oswald intended to end the de facto marriage relationship with Mr Thorburn when she came back to Perth. Thereafter, she was wary about resuming the relationship and only did so, at the very earliest, when she allowed Mr Thorburn to move into the new home she had acquired.

37Mr Thorburn endeavoured to give the impression that the purchase by Ms Oswald of the Suburb M property was a joint endeavour. He said in his affidavit that “we bought [Suburb M]”. He acknowledged, however, that he did not pay anything towards the deposit, nor any of the costs associated with the purchase. He was not on the title and did not guarantee Ms Oswald’s obligations under the mortgage. At one stage in his cross-examination, Mr Thorburn conceded that Ms Oswald made it clear to him that the property was to be her property (although he retreated from this admission to some extent later in cross-examination). I am satisfied that Ms Oswald bought the Suburb M property as her residence and later agreed to allow Mr Thorburn to come and join her there.

38There is a dispute as to how long the parties remained living together in the Suburb M property. Ms Oswald claimed in her affidavit that Mr Thorburn moved out in October 2003, whereas Mr Thorburn claimed they separated sometime in December 2003. Mr Thorburn was not cross-examined about his claim relating to a December separation date. Indeed, one of the questions put to him by Mr Oswald’s counsel suggested that it was being accepted that the separation occurred in December. Nevertheless, when it came time for Ms Oswald to be cross-examined, she reiterated that the separation had occurred in October 2003. Given the failure of Ms Oswald’s counsel to cross-examine Mr Thorburn on this issue, I am prepared to accept that the separation may, in fact, have occurred in December 2003 as he claimed.

39It seems possible that at least at one stage Mr Thorburn was claiming Centrelink payments in the period in which he was living in the Suburb M residence with Ms Oswald. Exhibit 5 was a letter from Centrelink to Mr Thorburn dated 2 August 2004, indicating that he had been overpaid on his Newstart Allowance for the period 18 August 2003 to 29 August 2003. When Mr Thorburn was asked about this he said that this would have related to a period when he was living alone in Melbourne. He was not challenged on this answer, even though it was common ground the parties only lived in Melbourne during 2002, and that August 2003 was a period in which both parties agreed Mr Thorburn was living with Ms Oswald at Suburb M.

40Although it is by no means clear from the evidence, I am prepared to accept that the parties were living in a de facto marriage relationship from May 2003 to December 2003, since they had previously lived in such a relationship; were having a sexual relationship; were residing in the same residence; and they were sharing some household expenses.

February 2004 to June 2005

41After leaving the Suburb M home, Mr Thorburn resided for at least a few weeks with Mr Beck and he then acquired his own rental accommodation in Suburb P. He claims that he and Ms Oswald “reconciled” in February 2004. He said, “I continued to retain the Suburb P rented accommodation, however, my residence alternated on a regular and frequent basis between the Suburb P and Suburb M properties”, until November 2004 when he says Ms Oswald moved out of the Suburb M property and moved in with him at Suburb P.

42There was no suggestion in Mr Thorburn’s affidavit evidence that Ms Oswald had spent any time living in the Suburb P property earlier than November 2004; however, he gave a different story in his oral evidence. He claimed that, having kept separate residences for only about six weeks following the separation in 2003, the parties thereafter lived in each other’s home, depending upon the weather. If it was warmer, they would stay at his place because he had a swimming pool and if it was colder, they would stay at her place because she had a wood stove.

43I accept that the parties saw a great deal of each other at times in the period from February to November 2004. I also accept that they spent nights staying together, which would explain why Mr Thorburn’s former wife regularly saw them together at the handover of Mr Thorburn’s children on weekends. However, I do not accept that the parties were living in a de facto marriage relationship during this period whilst they were maintaining separate accommodation. I accept Ms Oswald’s evidence that although there was a good deal of association between them during this time, their relationship continued to be somewhat “on again off again”.

44Ms Oswald denied Mr Thorburn’s allegation that she moved in with him at the Suburb P property in November 2004. I was not persuaded that she moved in as claimed, but it certainly appears to be the case that around the end of 2004/early 2005 the parties began to make serious plans for a life together. In early 2005, they investigated buying a property together, although they did not proceed with this plan. In February 2005, they became engaged to be married. It was also at this time that they introduced their respective parents to each other.

45Mr Thorburn only gave up the Suburb P property following his engagement to Ms Oswald. I find that he moved back into the Suburb M property on 8 March 2005. I find that from that time the parties were living in a de facto marriage relationship. They were having a sexual relationship. They were cohabiting together. They were seriously discussing buying a property together. They were engaged to be married.

46As already noted, this period of the parties’ relationship was very short-lived. Unhappy differences again arose and Ms Oswald wanted Mr Thorburn to leave her home. When he refused, she moved out in about May/June 2005. The parties thereafter never resumed any form of relationship.

Conclusion on length of de facto marriage relationship

47I find that the parties were living in a de facto marriage relationship for about 3 months in the last part of 2002 and for a little over three months from March to May/June 2005. I am also prepared to accept they were living in a de facto marriage relationship for about eight months from May 2003 to December 2003. In total therefore the parties lived in a de facto marriage relationship for 15 months at most.

48I do not accept the submission made by Mr Thorburn’s counsel that there is a degree of artificiality in suggesting that the parties were not living in a de facto marriage relationship during the time between these three periods. In my view, the facts pertaining to the parties’ relationship were very different in the time between the three periods mentioned above. The major point of difference was that they had separate residences, even if they were at times seeing a great deal of each other. I also do not accept that the parties were sharing responsibility for their expenses in the way Mr Thorburn claims they were between these three periods.

49Mr Thorburn has therefore not satisfied me on the balance of probabilities that he and Ms Oswald were living in a de facto marriage relationship that lasted for a total of two years. I am satisfied that apart from the three periods I have specifically mentioned, the parties were in nothing more than a boyfriend-girlfriend relationship, which was at times on-again, off-again.

Substantial contributions

50In the event he was unsuccessful in persuading me that the de facto marriage relationship lasted for more than two years, Mr Thorburn submitted that the court would have jurisdiction to hear his application for property settlement on the basis that he made substantial contributions within the meaning of the Act and that failure to make the order would result in serious injustice to him.

51I do not propose to discuss in detail the evidence given by the parties about the payments each of them made towards household expenses and other outgoings during the period of their relationship. Mr Thorburn claimed that he saw his role in the relationship as being that of “the provider” and that he therefore paid significantly more than half of the expenses incurred during the time they were together. I do not accept Mr Thorburn’s evidence in relation to these matters. I preferred Ms Oswald’s evidence to the effect that for much of the time Mr Thorburn did not even pay one-half of all the expenses associated with the household.

52Mr Thorburn also gave evidence in para 52 of his affidavit concerning work that he did around the Suburb M property and the expenses he incurred in relation to the property. He estimated that in total he had spent about $5,500 of his own money on various improvements.

53I find that Mr Thorburn’s major contribution of funds related to the construction of the shed. I accept Ms Oswald’s evidence that the shed was constructed at Mr Thorburn’s request. I do accept that Mr Thorburn did some work around the Suburb M property as claimed and I also accept that he undertook some landscaping and gardening work at Ms Oswald’s home in Suburb A.

54I was not directed to any authorities that might assist in understanding what is meant by “substantial contributions” within the meaning of the Act. I do accept the submission made on behalf of Mr Thorburn that one would need to interpret the word “substantial” in the context of the financial position of the parties. What might appear to be a “substantial contribution” for people of limited financial resources, might not be substantial in a case involving very wealthy parties.

55One of the few cases that has been determined under the Family Court Act 1997 where there has been discussion of what is meant by “substantial contributions” was a decision of Holden CJ in V & K [2005] FCWA 80. I respectfully agree with what his Honour said at [21]:

“In my view, substantial means something more than usual or ordinary. In my view, s 205X(b)(ii) is aimed at more exceptional circumstances where serious injustice may be caused by the application of sub-section (i).”

56Even taking into account the limited financial resources of the parties, I have considerable difficulty in accepting that the contributions Mr Thorburn made during the course of the relationship could be regarded as “substantial”. Even if they were substantial, I find that there would not be serious injustice in the event that he was not permitted to pursue an application for property settlement. It needs to be appreciated that the test is not “injustice” but “serious injustice” which seems to me to be a fairly high barrier to surmount.

Conclusion

57It follows that Mr Thorburn’s Form 1 application filed on 31 January 2006 will be dismissed.

58Ms Oswald also sought an order requiring Mr Thorburn to withdraw the caveat he has lodged against the property which she has purchased with the proceeds of sale of the Suburb M property. I am not satisfied I have jurisdiction to make such an order now that I have determined that the Court does not have jurisdiction to hear Mr Thorburn’s application. In the event that Mr Thorburn is not prepared to give an undertaking that he will arrange to withdraw the caveat, I will hear further submissions from counsel as to the jurisdictional basis for me to make the orders sought by Ms Oswald.

I certify that the preceding [58] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate