Vihervaara v Nasr
[2016] SADC 20
•4 March 2016
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
VIHERVAARA v NASR
[2016] SADC 20
Judgment of His Honour Judge Millsteed
4 March 2016
FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS
Plaintiff applied for a property adjustment order pursuant to s9 of the De Facto Relationships Act 1996 (SA) ('the Act') - whether plaintiff lived with defendant in a de facto relationship - held that parties lived together in a de facto relationship from May 1998 when plaintiff became pregnant with the parties' child until 12 June 2004 when she gave birth to child contrary to defendant's evidence - whether it was just and equitable that the parties' assets be divided equally between them pursuant to s109 of the Act - held that it was just and equitable that the parties' former home be sold and that the net proceeds of the sale be divided equally between them - held that it was just and equitable that the furniture and electrical appliances in the home (other than fittings) be sold and that proceeds of the sale be divided equally between them.
Nasr v Vihervaara [2005] SASC 83; Roy v Sturgeon (1986) 11 NSWLR 454; Jones v Grech (2001) 27 Fam LR 711; Zegerac v Tomasevic [2003] VSC 150; Hogg v Roberts (2003) 87 SASR 248; F v R [2012] SADC 84; Love v Chidley (2002) 219 LSJS 287; Kemp v King (1995) 127 FLR 264; Parker v Parker (1993) 16 Fam LR 863; Arnold v Dalton (2002) 84 SASR 482; In the Marriage of Mallet (1984) 156 CLR 605; W v D (2012) 115 SASR 61; W, SF v B, A [2013] SADC 163, considered.
VIHERVAARA v NASR
[2016] SADC 20INTRODUCTION
The plaintiff has applied for a property adjustment order pursuant to s 9 of the De Facto Relationships Act 1996 (SA) (‘the Act’)[1] on the basis that she lived in a de facto relationship with the defendant from May 1998 until 12 June 2004 and gave birth to their child (‘S’) on 3 February 1999. The plaintiff primarily seeks an order that the parties’ assets be divided equally between them. The defendant agrees that he had a relationship with the plaintiff which produced a child but contends that this Court has no jurisdiction to make the order(s) sought because the relationship did not amount to a de facto relationship for the purposes of the Act. The defendant further claims that even if such a relationship had existed, an appropriate adjustment order should result in a division of property favourable to him.
[1] The Act became the Domestic Partners Property Act 1996 (SA) (‘DPPA’) as from 1 June 2007. The Act applies to the present proceedings because the alleged de facto relationship ended before the commencement of the DPPA. The transitional provisions contained in the DPPA provide:
4(1) This Act does not apply to –
(a) a domestic partnership (other than a domestic partnership that was a de facto relationship) that ended before the commencement of this section; or
(b) a de facto relationship that ended before 16 December 1996.
Note - The Domestic Partners Property Act 1996 came into operation on 16 December 1996 as the De Facto Relationships Act 1996.
(2) In this section –
de facto relationship means the relationship between a man and a woman, who although not legally married to each other, live together on a genuine domestic basis as husband and wife. (my emphasis)
OVERVIEW OF PROCEEDINGS
The plaintiff instituted the present proceedings by filing a summons and a statement of claim on 12 October 2004, approximately four months after the parties separated. The subsequent pre-trial proceedings were drawn out for almost ten years. The grossly protracted nature of the proceedings was largely due to the parties’ conduct and in particular the following: in 2005 the plaintiff made an attempt to restrain the defendant’s then solicitor, Mr G Carabelas of von Doussas, from acting for the defendant, an attempt which was ultimately rejected by the Full Court of the Supreme Court;[2] the parties changed solicitors on multiple occasions, the parties filed amended pleadings on multiple occasions; the parties obtained from Masters lengthy adjournments in 2006 and 2007 in order to negotiate a settlement; the parties failed to attend directions hearings during 2007, 2008 and 2009 before obtaining an adjournment from a Master in late 2009 claiming they were still hopeful of resolving the matter; the parties failed to attend directions hearings in 2010; the parties obtained a lengthy adjournment of interlocutory proceedings in 2011 to focus on custody proceedings relating to S in the Federal Magistrates Court.
[2] Nasr v Vihervaara [2005] SASC 83.
The trial was conducted in January 2014. The parties were not legally represented. The plaintiff gave evidence and called one witness, her brother MAV. The defendant gave evidence but did not call any witnesses. Both parties tendered documentary exhibits. Not surprisingly, the parties’ cases were poorly presented by reason of their lack of legal expertise. The evidence put before me was unsatisfactory in a number of respects, in particular as to the identity and value of the parties’ assets and incomes.
THE ACT
Relevant provisions
The Act facilitates the division of property following the termination of a de facto relationship. The relevant provisions are as follows:
3 – Definitions
In this Act -
child of de facto partners means –
(a) a child of which the de facto partners are the natural parents; or
(b) a child of the female partner whose male partner is presumed to be the father of the child under Australian law; or
(c) a child adopted by the partners.
…
de facto partner means a person who lives in a de facto relationship and includes-
(a) a person who is about to enter a de facto relationship; and
(b) a person who has lived in a de facto relationship;
de facto relationship means the relationship between a man and a woman, who although not legally married to each other, live together in a genuine domestic basis as husband and wife.
…
9 – Property adjustment order
(1) After a de facto relationship ends, either of the de facto partners may apply to a court for the division of property.
(2) However, an application for the division of property may only be made if –
(a)The applicant or respondent is resident in the State when the application is made; and
(b)The de facto partners were resident in the State for the whole or a substantial part of the period of the relationship; and
(c)The de facto relationship existed for at least three years or there is a child of the de facto partners.
(3) An application for the division of property must be made within one year after the end of the de facto relationship unless the court, after considering the interests of both de facto partners, is satisfied that extension of this period of limitation is necessary to avoid serious injustice to the applicant.
…
10-Power to make orders for division of property
(1)On an application for the division of property, the court may make such orders it considers necessary to divide the property of either or both the de facto partners between them in a way that is just and equitable.
(2)For example, the court may make orders for—
(a) the transfer of property from de facto partner to the other; or
(b) the sale of property and the division of the net proceeds between the de facto partners in proportions decided by the court; or
(c) the payment by one de facto partner of a lump sum to the other.
11 – Matters for consideration by the court
(1)In deciding whether to make an order for the division of property under this Part, and if so the terms of the order, the court—
(a) must consider the financial and non-financial contributions made directly or indirectly by or on behalf of the de facto partners to—
(i) the acquisition, conservation or improvement of property of either or both partners; or
(ii) the financial resources of either or both partners; and
(b) must consider the contributions (including homemaking or parenting contributions) made by either of the de facto partners to the other partner or to children of the partners or either of them; and
(c) must have regard to the terms of any relevant cohabitation agreement; and
(d) may have regard to other relevant matters.
…
12 - Duty of court to resolve all outstanding questions
In proceedings under this Part, the court must (as far as practicable) finally resolve questions about the division of property between de facto partners and avoid further proceedings between them.
Jurisdiction
It can be seen that under the Act the Court has the power to make property adjustment between de facto partners following the termination of a de facto relationship upon an application made by either de facto partner (s 9(1)). However, such an application may only be made if the jurisdictional requirements prescribed in s 9(2) and (3) have been established.
In the present case, the plaintiff’s application for the division of property was made within one year after the end of the alleged de facto relationship (s 9(3)). Both parties were resident in this State when the application was made (s 9(2)(a)) and had been for the whole of their alleged de facto relationship (s 9(2)(b)). The only jurisdictional requirement disputed by the defendant is that prescribed s 9(2)(c). This sub-section requires that the de facto relationship lasted for at least three years or that there is a child of the de facto partners. In other words jurisdiction is founded if the de facto relationship lasted for no less than three years or produced a child regardless of whether or not the de facto relationship lasted for more or less than three years.
As earlier set out, de facto relationship means the heterosexual relationship between persons ‘who although not legally married to each other live together on a genuine domestic basis’ (s 3). Guidance as to the meaning of this requirement is provided by interstate decisions dealing with analogous legislation. In Roy v Sturgeon[3] Powell J considered whether a man and a woman had lived together as ‘husband and wife in a bona fide domestic relationship’ for the purposes of the definition of de facto relationship under the De Facto Relationships Act 1984 (NSW) s 3(1). Powell J pointed out that each case will involve the Court making a value judgment having regard to a variety of factors concerning the particular relationship. He went onto list the following set of non-exclusive factors:[4]
[3] (1986) 11 NSWLR 454.
[4] (1986) 11 NSWLR 454 at 459 A-B.
1the duration of the relationship;
2the nature and extent of the common residence;
3whether or not a sexual relationship existed;
4the degree of financial interdependence and, any arrangements of support, between or by the parties;
5the ownership use and acquisition of property;
6the procreation of children;
7the care and support of children;
8the performance of household duties;
9the degree of mutual commitment and support;
10the reputation and public aspects of the relationship.
The above list has been applied in other decisions[5] and adapted into various statutory definitions of ‘de facto relationship’ including s 4AA(2) of the Family Law Act 1975 (Cth).[6]
[5] Jones v Grech (2001) 27 Fam LR 711 at 716; Zegerac v Tomasevic [2003] VSC 150 at 14.
[6] See L Young and G Monahan Family Law in Australia 7th ed, LexisNexis Butterworths at [4.89]‑[4.91].
In the present case, as earlier mentioned, the plaintiff contends that she lived in a de facto relationship with the defendant from May 1998 (when the plaintiff became pregnant with S) until 12 June 2004 (when the parties separated). For just over four years between early 2000 and 12 June 2004 she cohabited with the defendant at two residences. The defendant admits that the plaintiff is the mother of his child but suggests that they never lived in a de facto relationship even during the period when they cohabited. In essence, he contends there was no commitment on their part to live together in that capacity.
Accordingly, the first key issue to be determined in this case is whether the parties lived in a de facto relationship. If they did then the requirements of s 9(c) will have been satisfied regardless of whether the de facto relationship lasted for three years because there is no dispute that their relationship produced a child. In any event, for reasons which I will canvass later, I am satisfied that the plaintiff and the defendant lived together in a de facto relationship from the time that the plaintiff fell pregnant with S until the date of separation, a period of about six years.
Adjustment orders
The Court’s power to make an adjustment order under s 10(1) is discretionary. The focus is on the just and equitable division of property by the Court having regard to the matters specified in s 11, namely:
· contributions of the de facto partners to property and financial resources (s 11(1)(a));
· contributions including parenting and home making contributions of the de facto partners to one another and to their children or the children of either of them (s 11(1)(b));
· the terms of any relevant cohabitation agreement (s 11(1)(c));
· other relevant matters (s 11(1)(d)).
In relation to s 11(1)(c) it should be observed that in the present case the parties did not have a cohabitation agreement.
In Hogg v Roberts[7] Doyle CJ (with whom Perry and Gray JJ agreed) considered the approach to be taken by a court to the making of an order under s 10. His Honour said:[8]
[7] (2003) 87 SASR 248.
[8] (2003) 87 SASR 248 at [11]-[15].
1 My understanding of the Act is that the requirement to make an order that is “just and equitable” does not give rise to a general and unfettered discretion. First of all, the court is dividing property, not settling all outstanding financial issues as between the partners. Secondly, s 11(1) indicates that the contributions referred to in that provision are important considerations in deciding what is just and equitable. The initial and primary focus must be on the property in question, contributions to that property, contributions to financial resources and then contributions by one party to the other and to the children.
2 However, the obligation under s 11(1)(d) to have regard “to other relevant matters” means the contributions are not the only matter for consideration. It is to be noted that the court must have regard to “relevant matters”. I think that must mean matters relevant to a just and equitable division of property. The provision is not as wide as, for example, a direction to have regard to such matters as the court thinks fit.
3 Bearing that in mind, I consider that it is not the role of the court to use the division of property to remedy any justified grievances that one party may have against the other, or to compensate one party for disappointed or unfulfilled expectations. The focus appears to me to be on a just and equitable distribution of property, after considering primarily contributions of the kind identified by s 11(1) of the Act. The task of the court is a narrower one than the task of the court under s 79 of the Family Law Act 1975 (Cth). The relevant considerations are more narrowly confined. Matters that are likely to be relevant are the length of the relationship and the immediate needs of the parties. I say “immediate needs” because the court’s focus is on the division of property. In deciding what is “just and equitable”, the needs of the parties at that time will be relevant. However, the court is not dividing property with a view to providing, for example, for the continuing maintenance of the parties, or taking into account their future financial prospects.
4 Other matters may be relevant. It would be dangerous to try to draw a line here in the abstract. I go no further than to say that the focus is on the just and equitable division of property, and not on an order that is fair having regard to all the circumstances surrounding, and everything that happened during, a relationship.
5 I agree with the observations made in decisions in other states that the court is not concerned with attributing fault for the breakdown of the relationship; that contributions as home maker and parent are not to be treated as inferior to material or financial contributions, they are to be taken into account in a substantial way; that contributions of a non-material kind are to be assessed in a broad way, rather than by reference to the rate of remuneration payable to commercial providers of such services, and that there is no reason to approach the matter on the basis of an assumption that an equal division is appropriate, unless there is good reason to depart from that position. I draw those propositions from the reasons of Gleeson CJ and McLelland CJ in Equity in Evans v Marmont (1997) 42 NSWLR 70 at 74. Although the legislation under consideration there was relevantly different, I consider that these basic principles apply to the Act.
6 In Parker v Parker (1993) 16 Fam LR 863 Young J suggested a four stage approach which will often be helpful. The four stages he suggested (at 870) are:
(i)to identify and value the assets of the parties;
(ii)to determine whether any, and if so what contributions of type A or type B had been made by each partner;
(iii)to determine whether in the circumstances the contributions of the applicant had already been sufficiently recognised and compensated for;
(iv)to make the appropriate adjustment.
7 Once again, he was concerned with different legislation, but the process he suggested is likely to prove helpful under the Act. However, I emphasise that this is simply one approach. In some cases a broader approach will work better. There is no need to take what might be called a narrow approach involving a careful tracking of income and expenditure, contributions made and benefits received. The legislation requires a reasonably broad and practical approach.
8 Between stages (iii) and (iv) it will be necessary to consider whether there are “other relevant matters” to be considered. It will also be necessary to bear in mind that the object is to divide property in a “way that is just and equitable”. As I have said, I do not treat that expression as opening up all aspects of the relationship, but it appears to me that the matters identified in s 11(1) of the Act do not alone dictate the order to be made under s 10(1). They are matters to be considered, they are important, but they will not necessarily be decisive.
I also gratefully adopt the following passages from the judgment of Smith DCJ in F v R:[9]
The language of sections 10 and 11 and, in particular sub section 2 of section 10, makes it clear that it is not intended that the Court embark upon an “accountancy exercise of a fragmentary nature”. On that topic I refer to and adopt what I said at [138] in Love v Chidley (supra) at [320].
The exercise of the discretionary power in s10 to make an order “in a way that is just and equitable” is an “holistic value judgment of a very general kind” as opposed to an accountancy exercise of a fragmentary nature. That is, after taking into account the considerations particularised in s11(1)(a), (b) and (d), the Court must, if the evidence justifies it, select a round figure or make an order for the division of property which is a monetary reflection of what justice and equity demands as the entitlement of the application de facto partner: see Davey v Lee (1990) 13 Fam LR 688 per McLelland J at 689, Ferris v Winslade (1998) 22 Fam LR 725; at 733 In the Marriage of Collins (1990) 14 Fam LR 563 at 562-572.
Although mathematical precision is not required, the evidence, ordinarily, should identify and value the assets and ascertain the circumstances of their acquisition (see Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 per Mason and Deane JJ at 523; see also M v P [2008] SADC 169 Beazley DCJ at [40] to [47]).
[9] [2012] SADC 84 at [15]-[16].
In relation to the onus of proof, it is for the plaintiff to satisfy the Court that the jurisdictional requirements set out in s 9 have been established and that an order for division of property in a just and equitable way is necessary having regard to the statutory considerations. The standard of proof is the civil standard, namely proof on the balance of probabilities.[10]
[10] Love v Chidley (2002) 219 LSJS 287 Smith DCJ at [8].
THE ISSUES
Broadly speaking the key issues that arise for my determination are as follows:
· whether the plaintiff and the defendant lived together on a genuine domestic basis as husband and wife?
· if the answer to the first question is ‘yes’, whether an order for the division of property should be made?
· if the answer to the second question is ‘yes’, what should be the terms of the order?
THE EVIDENCE
Background
The plaintiff and the defendant were born on 22 February 1964 and 5 September 1948, respectively.
The parties met in 1994. At the time the plaintiff was single, lived in rental accommodation at Unley and was employed as a sewing machinist. The defendant was a divorcee. He ran a ‘Deli mart’ at Smithfield Plains and lived at Salisbury East on property of which he was the sole registered proprietor.[11] He had two children from his former marriage. The children lived with their mother at the time. Following the parties initial meeting, they developed a casual intermittent sexual relationship, often staying at each other’s home, and occasionally holidaying together overseas and interstate.
[11] Following their separation the property was transferred into his sole name in 1985 - see Certificate of Title Vol 3400 Folio 59 (Exhibit P6).
Pennington
By 1997 the plaintiff was living in rental accommodation at Pennington. During that year she fell pregnant to the defendant but suffered a miscarriage. The evidence is unclear as to whether the parties had planned the pregnancy. Following the miscarriage, the plaintiff stopped working as a sewing machinist and took up studying aged care at TAFE Port Adelaide but did not complete the course.[12] She had previously earned approximately $500-600 per week (after tax) as a sewing machinist.[13]
[12] T 35.
[13] T 35.
After the miscarriage the plaintiff and the defendant holidayed in the United States for six weeks. The defendant paid for the holiday. At about that time the plaintiff informed the defendant that she wanted to have a child.[14] In May 1998 she fell pregnant with S, who was born on 3 February 1999. The defendant did not dispute that the pregnancy was planned but suggested that the plaintiff was merely interested in him for procreational purposes and was not committed to living with him as husband and wife.[15] This was disputed by the plaintiff. She maintained that the parties had decided to have a child and live together as a family.
[14] T 167.
[15] T 141.
As evidence of the plaintiff’s commitment to the relationship, she pointed out that during her pregnancy she worked in the defendant’s Deli-mart for about five months without receiving a wage.[16] On average she worked about 2-6 hours three days per week. The defendant did not dispute that the plaintiff assisted him in the Deli-mart when pregnant but contended that she worked there for only two to three weeks. I accept the plaintiff’s evidence on this topic.
[16] T 131-132.
Following the birth of S, the plaintiff and the defendant stayed at each other’s homes regularly. There is no dispute that the parties had agreed that plaintiff should stay at home to care for S.[17] The plaintiff obtained a partner’s parenting payment of approximately $150.00 per fortnight from Centrelink, paid into her personal bank account.[18] The parenting payment was terminated after the parties separated in 2004.[19] Despite obtaining these payments, it is apparent that the plaintiff must have received financial assistance from the defendant in order to cope with her general living expenses and to meet her rental payments while residing at Pennington. The defendant also gave her a Ford motor vehicle which he had purchased for about $1,800.[20]
[17] T 37, 40.
[18] T 74-75. The plaintiff tendered documents sent by Centrelink to the plaintiff during 2002, 2003 and 2004 (Exhibits P1, P2, P3, P3A, P3B, P3C, P4 and P5). The documents do not show the amount the plaintiff received by way of Parenting Payments other for a limited period in 2004. The relevant Exhibit (P3A) suggests that by February 2004 the plaintiff was receiving a regular payment of $130.48.
[19] T 43.
[20] T 38.
Purchase of Greenhill property
On 1 July 1999, while the plaintiff was still living at Pennington, the defendant signed a contract for the purchase of a vacant block of land at Greenhill for $32,500.[21] The defendant paid a cash deposit of $15,000. The plaintiff’s father advanced the plaintiff a loan of $4,000 towards the purchase.[22] The balance of the purchase price was paid through the defendant establishing a loan account with the Commonwealth Bank (CBA) in his sole name.
[21] Contract of sale (Exhibit D33) T 44.
[22] T 44.
On 26 July 1999 the land was transferred to the parties as joint tenants.[23] The defendant repaid the loan obtained from the plaintiff’s father shortly thereafter[24] and made all the CBA loan repayments from his earnings until the mortgage was discharged on 22 August 2000.[25]
[23] Memorandum of Transfer (Exhibit P 25); Certificate of Title 5463 Folio 176 (Exhibit P7).
[24] T 145.
[25] Discharge of Mortgage (Exhibit P 24).
Shortly thereafter, the parties commenced building a house on the Greenhill property. Finance was obtained from the ANZ Bank in the form of a ‘home loan’ in the amount of $87,000, jointly borrowed by the parties.[26] To further construction of the house, a ‘supplementary loan’ in the amount of $45,000 was jointly borrowed by the parties from the ANZ in about November 2001.[27] The two loans were secured by a single registered mortgage over the Greenhill property (ANZ mortgage).[28] It is common ground that all instalments due on the ANZ mortgage were made by the defendant from his earnings.[29]
[26] P22 T 146.
[27] P22 T 146.
[28] T 146.
[29] T 49.
The plaintiff testified that the property at Greenhill was purchased with the intention of the parties and their daughter living together as a family.[30] For his part, the defendant continued to maintain that there was no commitment by the parties to live together as husband and wife. He suggested that he bought the land and constructed the house to provide S with a home, and as a gesture to the memory of his father who had passed away in Egypt. The defendant said:[31]
I did inherit some money came from overseas from my father, wasn’t a big deal of money, so I decided to buy the land [to] meet his wishes. So I said let’s do it. I could buy a car or something like that, I said I’ll find a block of land and pay … tribute to my father. So we bought the land. I was happy to build a house for my daughter [S] to live in a decent area.
[30] T 70, 78.
[31] T 145.
Cohabitation at Salisbury East
In early 2000 the plaintiff terminated her lease at Pennington. The plaintiff and S then commenced living with the defendant in his home at Salisbury East pending construction of the house at Greenhill.[32] The defendant suggested that he merely intended to provide the plaintiff and S with a temporary safe haven following an acrimonious dispute between the plaintiff and one of her neighbours at Pennington.[33] This was denied by the plaintiff. She insisted that the dispute with her neighbour was relatively minor and had nothing to do with her decision to live with the defendant. In cross-examination she said:[34]
That’s not true it was not a major dispute. We purchased the block of land and you had to sell the house in Salisbury East before we could move to the house, and we had repairs and renovations to carry on the house in Salisbury East, so we decided that I would move all my belongings to your house in Salisbury East and we could continue the renovations to make your house more presentable for sale while the house was being built in Greenhill.
[32] T 69.
[33] T 70-71, 141-142.
[34] T 71.
The defendant’s ‘temporary safe haven’ contention must be rejected. It cannot be sensibly reconciled with the parties’ relationship up until that point and with the undisputed fact that they had purchased land and began building a house in which they intended to live.
During the plaintiff’s occupation of the house at Salisbury East the defendant slept in the main bedroom and the plaintiff slept in another bedroom with S.[35] The defendant relied upon these sleeping arrangements as evidence that the parties were not committed to live together as husband and wife.[36] This contention is weak. There is no dispute that while at Salisbury East the parties’ sexual relationship continued. Furthermore, I accept the plaintiff’s evidence that the plaintiff slept in the same room as S because she needed to care for the baby.[37]
[35] T 45.
[36] T 142-143.
[37] T 45.
The plaintiff agreed that while living at Salisbury East she made no financial contributions other than the parenting payments she received for S. The defendant paid for all of their expenses from his earnings.[38] However, she testified that she attended to all the household chores including cooking, cleaning, washing and shopping as well as caring for S.[39] The defendant did not dispute this other than to suggest that he washed and ironed his clothes and cleaned the bedroom in which he slept. He further suggested that he also cooked some of the meals and regularly took the plaintiff and S to restaurants because the plaintiff was not the best cook.[40] The plaintiff did not seriously challenge the defendant’s qualification of her evidence on this topic. I am prepared to accept the defendant’s evidence as to the limited chores he performed. However, they are hardly inconsistent with the existence of a de facto relationship. The sharing of domestic duties in varying degrees is a feature of many, if not most, marriages and de facto partnerships.
[38] T 43.
[39] T 40.
[40] T 142-143.
Cohabitation at Greenhill
In February 2002 the defendant sold his property at Salisbury East. The proceeds from the sale were around $52,000. The proceeds were used to help reduce the money owed under the ANZ mortgage. At about that time the parties and S moved into the newly constructed house at Greenhill. The plaintiff continued to stay at home and care for S while the defendant ran the Deli-mart. It is clear that in addition to paying the ANZ mortgage instalments, the defendant was primarily responsible for the general living expenses incurred by the parties. The financial contributions made by the plaintiff were limited to the parenting payments she received for S.
In addition to meeting most of the parties’ financial expenses, the defendant purchased furniture and electrical appliances for the house for a total of about $26,000.[41] The plaintiff did not dispute the estimated value of those items.[42] The plaintiff brought some furniture (worth about $3,000) which she had purchased prior to, or while, living at Pennington.[43] In the course of living at Greenhill or perhaps before (the evidence was unclear on this point), the defendant purchased two motor vehicles namely a 2002 VX Commodore and a 1991 VN Commodore, the first of which he gave to the plaintiff.[44] The defendant testified that he paid $13,000 for the VX Commodore and $2,000 for the VN Commodore.[45] The plaintiff did not challenge this aspect of the defendant’s evidence other than to suggest that he might have paid $6,000 for the VN Commodore to which she contributed about $1,500 towards the purchase of that vehicle, presumably from personal savings.[46]
[41] Exhibit D36.
[42] T 48.
[43] T 48.
[44] T 130.
[45] T 150-151 but compare Exhibit D34 (letter from defendant to his then solicitor in which he asserts that he purchased 2002 VX Commodore for $20,000 and the 1991 VN Commodore for $4,500).
[46] T 130.
The plaintiff gave evidence that she attended to the domestic chores as she had done at Salisbury East. She said that the defendant continued to wash his clothes, clean his bedroom and prepare some meals.[47] The parties’ sexual relationship continued throughout the time they lived together at Greenhill. The plaintiff said that she sometimes slept with the defendant in the main bedroom but usually slept in another bedroom adjacent to the room in which S slept so that she could attend to the child if the need arose.[48] The defendant again relied upon the plaintiff’s use of a separate bedroom as illustrative of a lack of commitment between them to live as husband and wife, a point which I reject.
[47] T 45.
[48] T 45-46.
Short separation
There were difficulties between the plaintiff and the defendant which resulted in the defendant moving out of Greenhill property for several weeks in about August of that year. The plaintiff then applied for and obtained child support payments from the defendant through the Child Support Agency. The defendant continued to make child support payments following his return to Greenhill and for a further period of about seven years after the parties eventually separated in 2004. The defendant argued that the fact he made child support payments while living with the plaintiff demonstrated that they were not living together on a genuine domestic basis as husband and wife but rather were sharing a common residence merely for the benefit of their daughter. I do not accept that argument.
Other matters
In addition to the evidence to which I have referred, the plaintiff relied upon the following matters to support her claim that the parties lived together in a de facto relationship during the relevant period:
·First, while the parties were living at Salisbury East the defendant completed in his handwriting and signed an ‘Australian Legal Will Kit’ purporting to be his last Will.[49] The Will appointed the plaintiff as his executor and trustee and stipulated that upon the defendant’s death the Deli‑Mart, the Salisbury East property and the defendant’s ‘share’ of the Greenhill property were to be divided equally between the plaintiff, S and his two other daughters.
On or about 14 January 2004 while the parties were living at Greenhill the defendant made a handwritten amendment to the Will leaving to the plaintiff and S his interest in the Greenhill property and other assets held in their joint names. In the amendment he described the plaintiff as his ‘partner’.[50] When questioned about the contents of the Will, the defendant was unable to provide any satisfactory explanation for describing the plaintiff as his ‘partner’ or for his intention to leave most of his estate to her as well as S.[51]
·Secondly, on 18 February 2004 the plaintiff and the defendant both signed a statutory declaration before a Justice of the Peace pursuant to s 71CB of the Stamp Duties Act pertaining to the transfer of the VX Commodore wherein they declared:[52]
We have been living as de facto husband and wife and cohabiting continuously for a period of not less than three years.
·Thirdly, during 2002 the plaintiff and the defendant attended Relationships Australia for counselling with respect to those difficulties.[53] The defendant agreed in evidence that the counselling sessions were conducted to see if the parties’ differences could be resolved so that they could live together.[54]
·Fourthly, the plaintiff testified that the parties represented themselves as a couple to friends and members of their extended families. The plaintiff’s evidence was supported by her brother, MAV. On occasions when he visited his sister’s home at Pennington he found the defendant staying there. He later regularly visited the parties (approximately every two months) at Salisbury East and Greenhill. The parties also visited MAV and his wife with the same degree of frequency. MAV testified that from his observations the plaintiff and the defendant ‘behaved as a couple would in a de facto relationship...’.[55] I accept the evidence given by MAV.
[49] Exhibit P40. (The Will was not dated or signed by any attesting witnesses at the time).
[50] The amended Will purportedly bore the signatures of two attesting witnesses.
[51] T 49.
[52] Exhibit P41.
[53] T 169-171 see letter from Heidi Ehrat Manager of Services, Relationships Australia, confirming dates of counselling sessions during 2002.
[54] T 171.
[55] T 94.
Termination of relationship/subsequent events
The parties separated permanently on or about 12 June 2004 when the defendant moved out of the Greenhill property. He lived in the Deli-mart for about 12 months before purchasing a home at Salisbury North, in which he still resides, with mortgage finance.[56] The evidence is silent on the price the defendant paid for the Salisbury North property. He testified that at the time of trial the property was worth approximately $300,000 and subject to a mortgage in the amount of $250,000.[57] He has continued to run the Deli-mart business (though from a different location). Since the separation he has acquired certain assets to be discussed later.
[56] T 159-160, 174.
[57] T 159-160.
The plaintiff has continued to live at the Greenhill property since the date of separation. The defendant, however, has paid all the mortgage instalments due under the ANZ mortgage from his earnings. The plaintiff’s financial contributions to the property have involved paying the council rates (approximately $1,600 at the time of trial) utilities and minor maintenance costs (unspecified).[58]
[58] T 81.
On 31 December 2008 the defendant purchased at an auction a VE Holden Commodore for $11,450.00 inclusive of GST[59] primarily for the purpose of enabling the plaintiff to drive S to and from school.[60] It replaced the VX Commodore that he had bought the plaintiff in 2004. The defendant testified that the VE Commodore was initially registered in his name and that without his permission, the plaintiff arranged for the motor vehicle to be registered in her name.[61] The plaintiff denied that she did this without his permission and said that the defendant had in effect gifted the motor vehicle to her for the reasons expressed above.[62] The conflict has no significance. The fact of the matter is that on either version of events the defendant bought the motor vehicle for the plaintiff’s use.
[59] Pickles Auctions tax invoice dated 31 December 2008 Exhibit D34, T51.
[60] T 85.
[61] T 154.
[62] T 85.
The parties’ child S continued to live with the plaintiff until 2011 when the child was about 14 years of age. S then went to live with the defendant and one of his daughters at Salisbury North. The evidence is unclear but it would seem that it was at about this time that the plaintiff stopped receiving child support payments through the Child Support Agency.[63]
[63] See Exhibit D10 (child support payment transaction statement from 1 August 2002 until 29 March 2011).
On 17 August 2011 the plaintiff initiated proceedings in the Federal Magistrates Court of Australia seeking custody orders in relation to S. The orders sought by the plaintiff were contested by the defendant. Following lengthy proceedings, the Federal Magistrates Court made orders on 7 May 2013 that S live with each of her parents on an equal shared week-about basis. Additional orders were made allowing each parent to have access to the child on special occasions as may be agreed between the parties and to take the child overseas upon certain conditions.
De facto relationship: Findings
I find that the plaintiff gave a truthful account of the nature of her relationship with the defendant. I am in no doubt that between at least May 1998 (when the plaintiff became pregnant with S while living at Pennington) and 12 June 2004 (when the defendant finally left the Greenhill property) the parties lived together on a genuine domestic basis as husband and wife save for a brief period in about August 2002 when they separated for a few weeks. The defendant’s evidence to the contrary is implausible.
During this period of just over six years the parties had a continuous sexual relationship and a child together. For most of that time they cohabited in a common residence first at Salisbury East and then at Greenhill. Although they did not live together at Pennington the parties often stayed at each other’s home and, at least from the time the plaintiff became pregnant with S, were committed to living together as a family.[64] The plaintiff’s evidence that the Greenhill property was acquired for that purpose is bolstered by the following objective facts:
·the plaintiff’s father advanced his daughter a loan to facilitate the purchase of the Greenhill property;
·the Greenhill property was transferred to the plaintiff and defendant as joint tenants;
·the plaintiff and defendant jointly borrowed money from the ANZ Bank to fund purchase of the Greenhill property land and the construction of the house upon it; and
·the defendant completed a Will in which he proposed to leave to the plaintiff, as well as S, his interest in the Greenhill property and any other assets held in their joint names, a Will in which he described the plaintiff as his ‘partner’.
[64] The concept of a man and woman living together does not necessarily imply that the two persons in question are always living under the same roof. The extent to which they share a common residence is but one of a number of factors to be taken into account: see Roy v Sturgeon (1986) 11 NSWLR 454 at 457-458.
The fact that the parties lived together in a de facto relationship for the period that I have found is also borne out by the parties’ financial and non‑financial interdependence. From the time that the plaintiff fell pregnant the plaintiff relied upon the defendant for financial support. The parenting payments were the only significant form of financial assistance she received independent of the plaintiff. Following the birth of S she stayed at home, cared for S and attended to most of the household chores while the defendant ran the Deli-mart. The income he derived from the business was used to take care of their joint living expenses as well as the ANZ mortgage when it came into existence.
The defendant’s preparedness to support the plaintiff and S in that manner, to invest his monies in the purchase of the land and the construction of the house at Greenhill, to purchase a large part of the house’s contents and to purchase motor vehicles for the plaintiff reflects a commitment on his part to live with the plaintiff as husband and wife and an acknowledgment of her commitment to him in that regard. Indeed, in examination-in-chief, in response to my questions, the defendant agreed that he loved the plaintiff and wanted to have a family with her. For that reason he wanted her to have an equal interest in the property.[65]
[65] T 155.
The fact that the parties lived together on a genuine domestic basis as husband and wife is furthered bolstered by the defendant accompanying the plaintiff to Relationship Australia counselling sessions in 2002 and by him signing the statutory declaration in 2004 in which the parties declared that they had been living ‘as de facto husband and wife and cohabiting continuously for a period of not less than three years’. In addition, I accept the evidence given by both the plaintiff and MAV that the public face of the parties’ relationship was that of a couple.
The jurisdictional requirements of s 9(c) have been satisfied.
DIVISION OF PROPERTY
I now turn to the remaining questions of whether an order should be made for the division of property, and if so, what the terms of the order should be. In determining these issues I have taken into account the five considerations endorsed in Hogg v Roberts:
·identification and valuation of the assets of the parties;
·determination of whether any, and if so what financial or non-financial contributions had been made by each partner;
·determination of whether contributions of the plaintiff had already been sufficiently recognised and compensated for;
·consideration of any other relevant matters; and,
·making an adjustment if appropriate.
The ultimate aim of the exercise is to effect a division of property between the parties in a manner which is ‘just and equitable’. As Smith DCJ pointed out in F v R, in the passage earlier referred to the discretion contained in s 10 involves a ‘holistic judgment of a very general kind’.[66]
[66] [2012] SADC 84 at [15]-[16].
Consideration
The appropriate time for valuing assets in an application for an adjustment order is the date of trial.[67] Determining with any precision the net worth of each party at the date of trial is difficult because neither the plaintiff nor the defendant tendered expert evidence as to the value of any of their assets at the time of trial.
[67] Love v Chidley (2002) 219 LSJS 287 at 321; Kemp v King (1995) 127 FLR 264 at 270; Parker v Parker (1993) 16 Fam LR 863 at 865.
In determining the value of the assets of parties it is important to remember that a judge is not obliged to descend into an examination of insignificant assets. As Bleby J emphasised in Arnold v Dalton[68] ‘Doing justice and equity between the parties does not require the examination in minute detail of the value and disposal of every small item of personal property’.[69]
[68] (2002) 84 SASR 482.
[69] (2002) 84 SASR 482 at [25].
Greenhill property
The property at Greenhill is the parties’ primary asset. As earlier stated, the defendant bought the land at Greenhill for $32,500 and contributed $15,000 to the purchase price. A loan of $4,000 advanced by the plaintiff’s father towards the purchase was later repaid by the defendant from his earnings. Two loans totalling $132,000 were obtained from the ANZ to fund the purchase of the land and the construction of the house. The defendant paid all the instalments due under the ANZ mortgage and funded the construction of the house from his earnings. According to the defendant by the time of trial the amount owing under the ANZ mortgage had been reduced to about $37,000.[70] Furthermore, the defendant contributed the proceeds of the sale of his former matrimonial home at Salisbury East ($52,000) to the reduction of the ANZ mortgage.
[70] T 146.
There are two aspects of the evidence concerning the extent of the defendant’s financial contribution that I should mention. First, the plaintiff gave evidence, as earlier set out, that she assisted the defendant to renovate the house at Salisbury East prior to its sale. On her case, the work she performed constituted a contribution by her to the value of the Salisbury East property and an indirect contribution to the Greenhill property because the proceeds from the sale of the former were invested in the latter. In principle that is correct. However, on the evidence put before me it is simply impossible to determine the value (if any) of her contribution in this regard. No evidence was tendered by either party as to the nature and cost of the renovation work carried out at Salisbury East or as to the role performed by the plaintiff. In any event, given that the house was sold for only $52,000 it is reasonable to assume that the renovations as a whole did not increase to any significant extent the value of the property which had belonged to the defendant for more than 13 years before the parties entered into the de facto relationship. In the circumstances, I am not prepared to credit the plaintiff with any proportion of the value of the Salisbury East home as an indirect contribution by her to the Greenhill property.
Secondly, there was a conflict in the evidence as to the house construction costs incurred by the defendant. The defendant asserted that the construction costs were about $240,000. The plaintiff suggested that they amounted to about $120,000.[71] In her cross-examination of the defendant, the plaintiff suggested that he had falsely inflated various construction component costs for example bricklaying and plumbing.[72] No evidence was put before me by the plaintiff which contradicted the defendant’s evidence in respect of the particular component costs upon which he was cross-examined. Indeed, it was apparent from the nature of the plaintiff’s cross-examination that her grounds for challenging the defendant’s evidence in respect of those costs were speculative.
[71] T 193-194.
[72] T 188-197.
However, there is one aspect of the evidence that provides some support for the plaintiff’s general contention about the overall cost of the construction of the house. The loans obtained from the ANZ Bank (total $132,000) fell short of covering the costs of the construction of the house ($240,000 - as estimated by the defendant) and the balance of the purchase price for the land ($13,500) by just over $120,000. If the house cost $240,000 the defendant must have accessed approximately $120,000 from a source or sources he failed to disclose in his evidence. I believe that the defendant has probably exaggerated the costs of building the house at Greenhill. But even if the defendant’s evidence were correct I do not believe that it would warrant the making of orders different to those which I intend to make.
I turn to the plaintiff’s contribution to the Greenhill property. It was non‑financial but important nonetheless. From the time she fell pregnant until the time the de facto relationship ended she stayed at home, cared for S and attended to all of the domestic duties save for the defendant’s minor contribution, as earlier described. By reason of those responsibilities, and with encouragement from the defendant, she gave up her occupation as a sewing machinist and later terminated her aged care course at TAFE. The plaintiff’s contribution to the family unit was substantial.
The following observations made by Davies AJA in Jones v Grech are germane:[73]
The Act defined a “de facto relationship” as “the relationship between de facto partners, being the relationship of living or having lived together as husband and wife on a bona fide domestic basis although not married to each other”. Such a relationship usually involves a union of interests with the man and the woman contributing in their own ways to the benefit of the union and of the children, if any. It is not uncommon for the male member of such a union to be the primary income earner. It is not uncommon for the woman to be the primary homemaker and the partner who has primary care of the children. And it is not uncommon for the matrimonial home to be acquired in the joint names of both partners, for such an arrangement recognises both permanence, or relative permanence, in the relationship and also the interest which the partners have in the achievement of security and assets.
[73] (2001) 27 Fam LR 711 at 723 [32].
In the Marriage of Mallet[74] Wilson J canvassed judgments of the Family Court in which that court held that the purpose of s 79(4)(b) of the Family Law Act, 1975 (Cth) was to ensure just and equitable treatment of a wife who has not earned income during the marriage but who has contributed as a homemaker and parent to the property.[75] Wilson J then observed:[76]
The Act requires that the contribution of a wife as a homemaker and parent be seen as an indirect contribution to the acquisition, conservation or improvement of the property of the parties regardless of where the legal ownership resides. The contribution must be assessed, not in any merely token way, but in terms of its true worth to the building up of the assets. However, equality will be the measure, other things being equal, only if the quality of the respective contributions of husband and wife, each judged by reference to their own sphere, are equal. The quality of the contribution made by a wife as homemaker or parent may vary enormously, from the inadequate to the adequate to the exceptionally good. She may be an admirable housewife in every way or she may fulfil little more than the minimum requirements. Similarly, the contribution of the breadwinner may vary enormously and deserves to be evaluated in comparison with that of the other party. It follows that it cannot be said of every case where the parties reside together that equal value must be attributed to the contribution of each. That will be appropriate only to the extent that the respective contributions of the parties are each made to an equivalent degree. What the Act requires is that in considering an order that is just and equitable the court shall “take into account” any contribution made by a party in the capacity of homemaker or parent. It is a wide discretion which requires the court to assess the value of that contribution in terms of what is just and equitable in all the circumstances of a particular case. There can be no fixed rule of general application.
[74] (1984) 156 CLR 605.
[75] See for example In the Marriage of Rolfe (1977) 25 ALR 217 Evatt CJ at 219.
[76] (1984) 156 CLR 605 at 636.
As Davies AJA remarked in Jones v Grech the general thrust of the remarks made by Wilson J also apply to de facto relationships:[77]
The same general considerations apply to a de facto relationship, for that is a relationship of living together as husband and wife on a bona fide domestic basis. Such a relationship also ordinarily involves a practical union of lives and property. The two factors specified in s 20(1), financial and non-financial contributions and contributions made in the capacity of homemaker or parent, reflect the considerations to which their Honours gave weight in Mallet v Mallet.
[77] (2001) 27 Fam LR 711 at 724 [35].
The parties are co-owners of the Greenhill property. In respect of that asset there is no sound reason to attach greater value to the defendant’s financial contribution to that of the plaintiff’s non-financial contribution. In my view, it is just and equitable that there be no adjustment of either party’s one half share interest in the Greenhill property. To recognise those interests it will be necessary to make an order that the Greenhill property be sold and that the proceeds of the sale be shared equally between the plaintiff and the defendant after the discharge of encumbrances endorsed on the certificate of title.
It should be observed that the defendant argued that because the plaintiff has resided at Greenhill without making any financial contribution to the property (other than the payment of council and utility rates) he is entitled to have an ‘occupation fee’ deducted from the plaintiff’s capital share of the proceeds of sale. I reject that argument for the following reasons.
The general principle is that a co-owner who is in sole occupation of the property is not liable to pay an occupation fee to the out of possession co-owner, in the absence of ‘ousting’ conduct by which the former has excluded the latter from the property.[78] In W v D[79] (partition case) Kourakis CJ (Anderson and David JJ agreeing) held that where a co-owner leaves the property voluntarily on the breakdown of the relationship, the co-owner remaining in possession is not liable for an occupation fee under the ‘ouster’ principle, even when the departing co-owner remains jointly liable under a mortgage loan and may have to pay for alternative accommodation.[80] Kourakis CJ concluded that ‘a relationship breakdown, without more, could not amount to exclusion for the purposes of a common law action against the remaining co-owner’.[81]
[78] See P. Butt, ‘Co-owner’s Claim for Occupation Fee’ (2013) 87 ALJ 374 and authorities discussed therein.
[79] (2012) 115 SASR 61.
[80] (2012) 115 SASR 61 at [41], [76].
[81] (2012) 115 SASR 61 at [70]
As Beazley DCJ observed in W, SF v B, A,[82] the approach taken in W v D is controversial and inconsistent with the development of the law in a line of New South Wales cases.[83] Nevertheless it constitutes the law in this State. Furthermore, I accept the plaintiff’s evidence that she reached an agreement with the defendant that she should stay at Greenhill ‘rent’ free so that S could continue to attend a particular school.[84] That arrangement continued at least up until 2011 when S went to live with the defendant.
[82] W, SF v B, A [2013] SADC 163.
[83] See P. Butt, ‘Co-owner’s Claim for Occupation Fee’ (2013) 87 ALJ 374 and W, SF v B, A [2013] SADC 163 (Beazley DCJ) for discussion of W v D and conflicting NSW authorities.
[84] T 79
Contents of house at Greenhill
The plaintiff testified that in addition to her joint interest in the Greenhill property she owned several items of furniture and electrical appliances, including a television and a refrigerator, which she had purchased before the parties had commenced living together. These items were taken by her from Pennington to the defendant’s home at Salisbury East and then to Greenhill. The plaintiff estimated that at the time of those events the items were worth in total about $3,000.[85] She was unable to estimate their value at the time of trial.
[85] T 47-48.
As I have already mentioned, the defendant’s unchallenged evidence is that he purchased furniture and electrical appliances for the house for a total of about $26,000. Following the parties separation the defendant took with him a television of the value of about $4,500.[86] No expert valuation evidence was tendered as to the value of the items purchased by the defendant as at the time of trial. The plaintiff suggested that the items (less the television removed by the defendant) were worth only about $2,300.[87] However, her evidence was nothing more than a guess.
[86] T 188-189.
[87] T 58.
The items referred to above were placed in the house at Greenhill by the parties for the benefit of the family unit. As I have already emphasised, the differing contributions made by the parties in the course of their relationship may fairly be regarded as of equal value. In my view, the contents of the house at Greenhill (which do not constitute fittings) should be divided equally between the parties. I would make an order that if the parties cannot, within two months from the date of this judgment, reach agreement as to how that division should occur then the items must be sold with each party receiving one half of the proceeds of the sale.
Motor vehicles
At the time of trial the defendant owned two unencumbered Holden Statesmen which he estimated were together worth about $22,000.[88] There is no evidence that these vehicles were acquired as a result of any direct or indirect contributions by the plaintiff. Accordingly, they should be excluded from the parties’ pool of assets.
[88] T 159-160.
As earlier noted, on 31 December 2008 the defendant purchased at an auction a VE Holden Commodore for $11,450.00 inclusive of GST for the plaintiff’s use and in particular for assisting her to drive S about. The motor vehicle which was subsequently registered in the plaintiff’s name was still in her possession at the time of trial. No evidence was proffered as to its then value.
During the de facto relationship the defendant purchased two motor vehicles for the plaintiff’s use. Living at Greenhill, it was important for the defendant to have a motor vehicle to properly care for S and attend to shopping and other homemaker responsibilities. The VE Commodore replaced the second of those motor vehicles. By the time of its purchase it was also necessary for the plaintiff to drive S to and from school. The defendant obviously recognised the importance of the plaintiff continuing to have a motor vehicle for those purposes. In the circumstances, it is just and equitable that the plaintiff be allowed to retain the VE Commodore.
Deli-mart
At the time of trial the defendant was still operating the Deli-mart. He estimated that the business had a net worth at the time of about $120,000‑$130,000 and generated a net income of about $36,000 per annum.[89] No expert valuation evidence with respect to the business was produced by either party.[90] In addition to being a homemaker and carer of S the plaintiff made a minor contribution to the business by working at the Deli-mart during her pregnancy with S. However, I am not inclined to include the business in the pool of assets which the defendant has run for many years both before and after his relationship with the plaintiff. In my view, taking a broad brush approach, the plaintiff’s half share of the Greenhill property sufficiently compensates her for her contributions.
[89] T 148-149.
[90] Financial statements prepared by the defendant’s accountants, David Abram and Associates Pty Ltd, for the period 1 July 2001 to 30 June 2002 (Exhibit D28) . The statements indicated that the business was operating at a loss for that period.
Defendant’s other real estate
At trial the defendant was still residing in the house at Salisbury North which he purchased about one year after the termination of his relationship with the plaintiff. The defendant testified that at the time of trial the property was worth approximately $300,000 and was subject to a mortgage in the amount of $250,000. This evidence was not challenged by the plaintiff. The plaintiff argued that the defendant must have used savings acquired in the course of the relationship to purchase the property, thus she has indirectly contributed to it.
I reject that argument. There is no evidence as to how much the defendant paid for the property. For all I know the defendant may have acquired the property primarily if not exclusively with mortgage finance. Any contributions to the purchase price made by the plaintiff may have been derived from earnings or savings acquired post separation. I exclude from the parties assets pool the property at Salisbury North.
The defendant testified that in 2005 he purchased land at Waterfall Gully for $65,000. In cross-examination the defendant said that he contributed $10,000 towards the purchase price which he had won on Keno following the parties’ separation and financed the balance with a loan secured by mortgage.[91] He said that the plaintiff was present when he cashed the cheque he had received from Keno. The plaintiff did not dispute his evidence on this topic. In the circumstances the property at Waterfall Gully should be excluded from the parties’ pool of assets. There is no evidence to suggest that the plaintiff made any direct or indirect contribution to it.
[91] T 177-178.
Other assets
The defendant testified that at the time of trial he had $20,000 in an account with St George Bank which he used as an account for his Deli-mart business and owed $20,000 on a credit card. He had no personal savings, superannuation, shares or assets.[92] The plaintiff did not challenge this aspect of his evidence. For her part, the plaintiff said that she had $50,000 which she had inherited from her father after he passed away in 2012 and about $2,000-$3,000 savings in her bank account.[93] There is no evidence that would justify including in the parties’ pool of assets any of the monies held by the parties in their respective bank accounts. The monies were acquired after the termination of the de facto relationship. There is nothing to indicate that the monies were accumulated by a party as a result of any earlier contribution by the other party.
[92] T 159-160.
[93]T 49-50.
Litigation
In 2002 P. Priebe and D. Priebe, who were neighbours of the parties at Greenhill, brought an action in the Magistrates Court of South Australia against the plaintiff and the defendant for damages caused to the Priebe’s property by water escaping from the plaintiff and defendant’s property at Greenhill.
On 7 April 2004 judgment was entered against the plaintiff and the defendant in the amount of $6,134.74 inclusive of interest and costs. A warrant for the sale of the Greenhill property was issued later that year which was stayed upon the defendant paying the judgment debt.[94] The defendant has not claimed a set off in relation to that payment. In any event I would not treat it as one. Rather I regard it as constituting part of the defendant’s financial contribution to the Greenhill property in respect of which his half share of the proceeds of the sale of the property would constitute sufficient compensation.
[94] Action number DCCIV-03-329 T 132.
The defendant owed the plaintiff $2,732.53 in unpaid child support payments as at 17 June 2011.[95] Shortly before or after S ceased living with her mother. There is no dispute that in 2008 the defendant contributed $3,000 towards the settlement of a District Court action that a person had brought against the plaintiff.[96] For the purpose of these proceedings I would treat this as a set off against the unpaid child payments.
[95] Summary of account details from Child Support Agency Exhibit D38.
[96] T 162 Exhibit D37.
Adjustment necessary
By way of summary, justice and equity demands that:
(i)there be no adjustment of either party’s one half share interest in the Greenhill property; and
(ii)the furniture and electrical appliances within the house (other than fittings) be sold and the proceeds of the sale be divided equally between the parties if they cannot reach an agreement within two months of the date of this judgment as to the division of those items.
To recognise each party’s interest in the Greenhill property, and because there is no satisfactory evidence as to the value of the property which would permit the making of a lump sum payment order, it would be appropriate to make an order that the Greenhill property be sold and that the net proceeds of the sale (subject to certain qualifications discussed below) be divided equally between the parties.
Before discussing those qualifications it is necessary to note that the Greenhill property is subject to certain encumbrances.
In addition to the ANZ mortgage, the Greenhill property Certificate of Title (Volume 5463 Folio 176) has endorsed upon it a charge against the plaintiff’s interest in the property in favour of the Legal Services Commission of South Australia (‘the Commission’) pursuant to s 18A of the Legal Services Commission Act 1977. The charge was endorsed on the Certificate of Title on 9 September 2011 and relates, as I understand the position, to legal aid funding received by the plaintiff in relation to the custody proceedings in the Federal Magistrates Court.[97] (The charge requires the plaintiff to pay the Commission the amount secured by the charge if her interest in the property were to be sold.)
[97] An earlier charge endorsed on the Certificate of Title made pursuant to an order of the Magistrates Court on 6 July 2000 charging the plaintiff’s interest in the Greenhill property with the payment of a judgment debt in respect of her failure to pay her first solicitor’s (von Doussas) legal fees were discharged on 9 April 2014.
The Certificate of Title is also endorsed with (i) a caveat by Brian Patrick Black, a former solicitor of the defendant in this matter, of the defendant’s interest in the property and (ii) a charge made pursuant to an order of the Magistrates Court on 28 November 2013 charging the defendant’s interest in the Greenhill property with the payment of a judgment debt in respect of his failure to pay legal fees to Brian Patrick Black. The charge prohibits the defendant from dealing with his interest in the property whilst the charge remains in force.
In my view, each party should bear sole responsibility for the legal fees incurred by him or her which are the subject of the encumbrances endorsed on the Certificate of Title. Both should be jointly responsible for the ANZ mortgage debt.
Having expressed the view that the property should be sold I will allow the parties two months from the date of this judgment to consider whether one of them wishes to purchase the other party’s interest in the property at a price agreed between the parties or, in the absence of such an agreement, by a licensed land valuer appointed by agreement between the parties. In the event of a default of agreement the price will be determined by a Registrar of the Court.
Should neither party wish to purchase the other party’s interest in the Greenhill property, the parties will appear before me on 4 May 2016 upon which day I will make an order that the Greenhill property be sold by an agent appointed by agreement between the parties, within 14 days of the making of that order, or thereafter by an agent appointed by the Real Estate Institute of South Australia. The proceeds of the sale of the Greenhill property will be paid into Court.
The Court will inform the Legal Services Commission and Brian Patrick Black of the proposed orders and invite submissions on 4 May 2016 as to whether they wish to appear and make a claim in respect of the proceeds of the sale.
ORDERS
The formal orders of the Court are:
1. I declare that the plaintiff and the defendant lived in a de facto relationship for the purposes of the Act between May 1998 and 12 June 2004.
2. I will hear the parties on 4 May as to the question of costs and formal orders required in respect of the division of property.
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