V & K

[2005] FCWA 80

JURISDICTION:

FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: V and K [2005] FCWA 80

CORAM: HOLDEN CJ

HEARD: 11 JULY 2005

DELIVERED: 4 AUGUST 2005

FILE NO/S: PT 4070 of 2004

BETWEEN: V

Applicant

AND

K

Respondent

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Catchwords:

DE FACTO RELATIONSHIPS -

Whether both parties resided in Western Australia for at least one-third of the duration of their de facto relationship

PROPERTY SETTLEMENT - contributions - "substantial" contribution

Legislation:

Family Court Act 1997 s 36(5)

Family Court Act 1997 Part 5A, Division 2, s 205X(b)(i) and (ii) Family Court Act 1997 s 205ZG(4)(a) (b) (c)

De Facto Relationships Act 1984

Property Law Act 1958 (Vic)

Category: Not Reportable

Representation:

Counsel:

Applicant: Self-represented

Respondent: Self-represented

Solicitors: Applicant: Respondent:

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

Mallet and Mallet (1984) FLC 91-507

Rolfe and Rolfe (1979) FLC 90-269

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1 The applica

2 Section 36(5) of the Family Court Act 1997 provides:

"36 (5) Subject to this section, the Court has non-federal jurisdiction to make an order under this Act whether or not the facts or circumstances, or any of them, the existence or occurrence of which is necessary for the making of the order took place or arose before the coming into operation of this Act or outside the State."

3These proceedings, however, are brought pursuant to Part 5A of the Family Court Act 1997. Section 205X, which is to be found in Division 2 of Part 5A provides as follows:

"205X. Despite section 36(5), before making an order under this

Division a court must be satisfied —

(a) that one or both of the parties to the application were resident in Western Australia on the day on which the application was made; and

(b) that —

(i) both parties have resided in Western Australia for at least one third of the duration of their de facto relationship; or

(ii) substantial contributions of the kind referred to in section 205ZG(4)(a), (b) or (c) have been made in the State by the applicant."

4There is no dispute that the parties were both resident in Western Australia on the day on which [Ms V] made her application. It follows that sub-section (a) of s 205X is satisfied. [Mr K], however, submits that the requirements of sub-section (i) and (ii) of s 205X(b) have not been met. I will deal with each sub-section in turn.

5There is no dispute between the parties that from the commencement of cohabitation on 30 July 2000 until 28 January

2002, the parties cohabited for a total of 22 days in Western Australia. Similarly, there is no dispute that between these two dates they

resided together in [the Eastern states] for a total of 524 days.

6 Problems developed in the relationship and on or about 26

January 2002 [Ms V] returned to reside in Perth. [Mr K] remained living in [the Eastern states]. The parties lived in different states for

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the next 142 days until [Mr K] also travelled to Western Australia and the parties resumed cohabitation in this State. It was [Ms V]'s case at trial that although the parties were living in different States the relationship was not at an end as it was always the intention that

[Mr K], after he had organised his affairs, would join her in Western Australia. [Mr K] does not seriously dispute that this was so, but points out, correctly in my view, that the test under s 205X(b)(i) is not whether the relationship was on foot but, rather, whether both parties resided in Western Australia for at least one-third of the duration of their de facto relationship. It is common ground that [Mr K] did not reside in Western Australia for those 142 days.

7 Again, it is common ground between the parties that between 18

June 2002 and 14 March 2003, or a total of 269 days, the parties lived together in a de facto relationship. It was [Mr K]'s case that the relationship ended on 14 March 2003 when he discovered that [Ms V] had been associating with another man. He says that from that date until [Ms V] actually vacated the property in which they were residing on 28 May 2003, they were living separately and apart under the same roof and that the relationship was, at all material times, at an end.

8 [Ms V]'s case was that although she conceded that after 14

March 2003 the parties no longer shared the same bedroom, the relationship nevertheless remained on foot until she vacated the then matrimonial home.

9In her closing submissions, however, she conceded that the relationship was at an end as from 14 March 2003. In my view, that was an appropriate concession for her to make and if she had not done so, I would, in any event, have found that the relationship ended on 14

March 2003. I would have made that finding because of the following:

(a)[Mr K] gave evidence that in the early hours of the morning of 15 March 2003, he telephoned his mother in, [the Eastern states] to advise her that the relationship was at an end. During the course of her evidence, [Ms V] conceded that although she did not know at the time of the telephone call, she later found out that the husband had indeed phoned his mother to advise the relationship was at an end.

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(b) on the occasion of [Mr K]'s birthday, on 17 March

2003, [Ms V] gave him a birthday card on which she wrote the following:

"Dear [Mr K], this is the hardest card I've ever written to you. But despite everything I do wish you the BESTEST birthday.

You do mean a lot to me even though I don't show it, and I truly hope you find it in your heart to forgive me one day, for treating you so badly. I wish for someone wonderful and special to come into your life and make you as happy and loved, as you deserve to be. You'll always be special to me. Bestest wishes always.

[Ms V] XXX"

(c)[Ms V] acknowledged that after 14 March 2003, she was looking for alternative accommodation. This is evidenced by the note in her handwriting which is exhibit "B" to the affidavit of [Mr K], sworn 10

September 2004;

(d) [Ms V] admitted during the course of her evidence that she continued to see the male third party whom she had been seeing prior to 14 March 2003, off and on after that date; and

(e)the evidence of [Ms V]'s daughter, which was to the effect that she did not think that her mother was trying to sort out the relationship after 14 March 2003.

10 Based on all of the above, the relationship lasted a total of 957 days. Of that number of days, both parties only resided in Western Australia for a total of 291. The result is that those parties resided in Western Australia for 30.4% of the time that the parties were in a de facto relationship thus the requirement of s 205X(b)(i) is not satisfied.

11 I now turn to determine whether or not the applicant made substantial contributions of the kind referred to in s 205ZG(4)(a), (b) or (c) in the State of Western Australia.

12 Those sub-sections provide as follows:

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205ZG (4) In considering what order (if any) should be made under this section in proceedings with respect to any property of de facto partners, or either of them, the court must take into account —

(a)the financial contribution made directly or indirectly by or on behalf of a de facto partner to the de facto relationship or a child of the de facto relationship to the acquisition, conservation or improvement of any of the property of the de facto partners, or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the de facto partners or either of them;

(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a de facto partner or a child of the de facto relationship to the acquisition, conservation or improvement of any of the property of the de facto partners or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the de facto partners or either of them;

(c)the contribution made by a de facto partner to the welfare of the family constituted by the de facto partners and any children of the de facto partners, including any contribution made in the capacity of omemaker or parent;"

13 The affidavit of evidence [Ms V] relied upon, was filed on 2

November 2004, is largely silent as to the contributions [Ms V] made in Western Australia. At trial, she claimed her major contribution was

the fact that she worked and saved money to establish a rental home for the parties in Perth. This consisted of paying a bond of $540 and acquiring kitchen appliances, crockery and other necessities for the home at a cost of approximately $700. She concedes that she retained the bond when the property was returned to the landlord and most of

the furniture. She also conceded that [Mr K] made a contribution in that he forwarded money to acquire some items of furniture.

14 [Mr K] gives some evidence of his financial contributions in paragraphs 17, 19 and 20 of his affidavit filed 10 September 2004. The evidence tends to establish that [Mr K] was employed for most of the time that the parties resided in Western Australia. Annexure "A" to [Ms V]'s affidavit filed on 2 November 2004 is a copy of her résumé, which she says details her work history. It would appear that for the majority of the time that the parties were residing together in Western Australia, she was employed at [suburban] lunch bar. Her evidence was that her money was used for groceries and household needs, whereas [Mr K] paid rent and utilities and the like.

15 The reality is that the parties were living together and sharing their living expenses. I do not find that either of them made a substantial contribution in the State of Western Australia.

16 Neither party claims to have made any non-financial contributions either in their affidavits or in oral evidence. Accordingly, I find that neither of them made substantial non-financial contributions.

17 Although [Ms V]'s daughter lived with the parties, they had no children of their relationship. [Ms V] claims to have made the greater contribution as homemaker. Although conceding that [Mr K] did, on occasions, attend to some domestic tasks, she claims to have attended to 95% of them. Although I suspect she is exaggerating her contribution and minimising that of [Mr K], I nevertheless accept that, in all probability, she made the greater homemaker contribution. It is not suggested, however, that this was particularly demanding or onerous.

18 There is little assistance in the authorities as to what will amount to a "substantial" contribution. It is a term that appears in State de facto property legislation (see, for example, De Facto Relationships Act, 1984 and the Property Law Act 1958 (Vic)). I have been unable to locate any cases decided under State legislation where what may be termed usual contributions as homemaker during a short relationship have been regarded as substantial.

19 As the learned authors of the CCH De Facto Relationships commentary observe, it will be a matter of degree, in a relationship

which lasts a short time when a "normal" spousal contribution becomes "substantial".

20 Mallet and Mallet (1984) FLC 91-507 requires that contributions as homemaker and parent be assessed (not merely in a token way, but in terms of its true worth to the building up of the assets. In that case, members of the High Court adopted the language of the Full Court of the Family Court in Rolfe and Rolfe (1979) FLC 90-269 that contributions to home and family should be recognised not in a token, but in a substantial way.

21 Notwithstanding I am of the view that a contribution to domestic duties in circumstances such as exist in this case where there were no dependant children and over a short period of time ought not be seen to be substantial. 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).

Conclusion

22 I am not without some considerable sympathy for [Ms V]. At the time she met [Mr K] she had a house at [a southern suburb]. She had purchased this house in 1999 together with Homeswest. After she purchased the home, she had two options, namely:

(a)to pay for one half of the price and live there rent-free for the rest of her life; or

(b) she could purchase the whole of the home.

Her home was fully furnished and she had a motor vehicle. Because she genuinely believed that her future lay with [Mr K] in [the Eastern states] she sold her home receiving $7,000 net. In one way or another that money was contributed to the relationship. She sold her furniture at a garage sale, receiving only approximately $500. She had a [motor vehicle], which she says was in good condition. However, she asked her parents to sell it when she went to [the Eastern states]. She received $1500 for it, which was subsequently used for a holiday.

23 It is the case that prior to meeting [Mr K], [Ms V] was in a reasonably secure position. At the end of the relationship, she finds herself with very little. [Mr K] does not deny that the initial strains in the relationship were as a result of [Ms V] discovering, after she had moved to [the Eastern states], that he was associating with at least one

other woman. [Mr K], on the other hand, at the commencement of the relationship had a home in [the Eastern states], which he ultimately sold, applying the proceeds to purchase his present home in Western Australia. The relationship with [Ms V] appears to have had no detrimental effect upon him financially and, indeed, his financial situation may have even improved.

24 As far as [Ms V] is concerned, and on a positive note, she is engaged to be married. She is living with her fiancé and I know nothing of the financial circumstances relating to her cohabitation with him.

25 My task, however, is to decide this case in accordance with the relevant legislation. There can be no doubt, even on [Ms V]'s own case as it stood at the conclusion of the trial, that the parties did not live in Western Australia for at least one-third of the duration of their de facto relationship. As the evidence stands before me, I am unable to find that [Ms V] made a substantial financial or non-financial contribution to the acquisition, conservation or improvement of any of the parties' property whilst they were both in Western Australia. Although I find that she performed the greater share of the domestic duties, I am unable to find that this amounts to a substantial contribution over a period of 291 days and where there were no children of the relationship.

26 In the circumstances I have no alternative but to dismiss the application filed on 13 December 2004.

I certify that the preceding [26] paragraphs are a true copy of the reasons for judgment delivered by this Honourable Court

Associate