Wren v Chandler
[2004] SADC 128
•13 September 2004
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
WREN v CHANDLER
Judgment of His Honour Judge Clayton
13 September 2004
REAL PROPERTY
DE FACTO RELATIONSHIPS ACT 1996 - JURISDICTION - whether cohabitation for 3 continuous years is required.
HELD: Separate periods of cohabitation can be aggregated for the purpose of determining the requirement of section 9(1)(a) of the Act that a relationship has existed for at least 3 years.
HELD: Property should be divided 55% in favour of plaintiff and 45% in favour of defendant.
De Facto Relationships Act 1996 ss.3, 9, 10, 11, 12; Criminal Assets Confiscation Act 1996 s.4, 5, 15(5), referred to.
Hibberson v George (1988-89) 12 Fam LR 725; Lipman v Lipman (1989) 13 FAMLR 1, distinguished.
Germinario v Pinkerton [2000] SADC 89 (13 July 2000); Jones v Grech [2001] NSWCA 208 (10 July 2001); Thomson v Badger (1989) 13 Fam LR 559; Fotheringham v Fotheringham Unreported, NSWCCA, 28 August 1998; Evans v Marmont (1997) 42 NSWLR 79; (19997) 21 Fam LR 760; McDonald v Stelzer [2000] NSWCA 302; Black v Black (1991) 15 Fam LR 109; Dwyer v Kaljo (1992) 27 NSWLR 728; Love v Chidley [2001] SADC 36; Condoluci v Condoluci [2002] SADC 159; Davey v Lee (1989) 13 Fam LR 688 at 689; Simmons v Williams [2002] SADC 168 (13 December 2002), considered.
WREN v CHANDLER
[2004] SADC 128
By summons issued 25 July 2002 Dianne Shirley Wren claimed first a declaration that she had lived in a de facto relationship with Robert Michael Chandler within the meaning of section 3 of the De Facto Relationships Act 1996 and, secondly, an order for the division of property pursuant to section 10 of that Act. The date of commencement of the proceedings has relevance for a reason which I mention below.
Section 10 of the Act gives the court jurisdiction to make orders it considers necessary to divide the property of de facto partners in a way that is just and equitable. Section 11 sets out matters for consideration.
The jurisdiction of the court is subject to compliance with section 9. Subsection (1) provides that after a de facto relationship ends, either of the de facto partners may apply for the division of property. Subsection (2) states that an application may only be made if the applicant or respondent is resident in the State when the application is made, the de facto partners were resident in the State for the whole or a substantial part of the period of the relationship and the de facto relationship existed for at least three years.
Unless the court is satisfied that an extension of the period is necessary, the application for division of the property must be made within one year after the end of the de facto relationship. Subsection 9(3) defines “de facto relationship” to mean “…. 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”.
The defendant filed an appearance and defence and counterclaim and submitted to the jurisdiction of the court, but his solicitor ceased acting prior to the trial. Mr Chandler did not attend on the day fixed for the trial, but a friend did for the purpose of delivering a letter in which Mr Chandler sought to have the hearing adjourned. I advised the friend that the reasons stated in the letter did not excuse Mr Chandler from attending at the court and that the trial would proceed. Mr Chandler was given an opportunity to attend if he wanted, but declined that invitation. For reasons which will become apparent, this is not a case where the court can assume jurisdiction because of the defendant’s default.
Mr Chandler’s letter announced that he would not be attending court. His reasons were first that he could not afford the cost of the proceedings, secondly there is a criminal confiscation order on the property and thirdly his health was not up to sitting in the courtroom all day as he was recovering from bowel surgery. The letter did not suggest that his health was such that he could not attend personally to make the adjournment application. I dismissed the application for an adjournment and the hearing proceeded uncontested.
Counsel for the plaintiff acknowledged that the plaintiff was not entitled to an order by default and that the plaintiff was required to make out her case. I have to be satisfied that the court has the jurisdiction to entertain the claim and make the orders which are sought.
The plaintiff’s application is complicated by a Restraining Order made in the Adelaide Magistrates Court on 8 September 2003. The principal asset of the parties is a residence at 17 Traminer Drive, Angle Vale which is owned by Ms Wren and Mr Chandler as joint tenants. Mr Chandler has been charged with possessing a controlled substance for sale, taking part in the manufacture of a controlled substance and unlawful possession. Possessing a controlled substance for sale and taking part in the manufacture of a controlled substance are serious drug offences. If Mr Chandler is convicted of either of those charges the Restraining Order will automatically be converted into a Forfeiture Order pursuant to section 15(5) of the Criminal Assets Confiscation Act 1996.
If this court was to make an order of the kind sought by Ms Wren namely an order that the property be sold and some or all of Mr Chandler’s share of the proceeds of the sale be divided so that Ms Wren was allocated more than the 50% which might be assumed to be her equity in the property as a joint tenant, the result could be that an asset of Mr Chandler would be removed from the operation of a Forfeiture Order.
At the moment Mr Chandler has been charged with the offences, and pleaded not guilty. He is yet to be tried and is presumed to be innocent. If he is acquitted there will be no problem. However, if Mr Chandler is convicted the order which Ms Wren seeks pursuant to the De Facto Relationships Act 1996 might remove the house property from the reach of any Forfeiture Order.
Accordingly, there are competing claims in respect of the interest of Mr Chandler in the real estate by Ms Wren on the one hand and the Director of Public Prosecutions on the other. As I have mentioned, Ms Wren’s claim was initiated by a summons dated 25 July 2002. The Director’s claim for forfeiture was acknowledged by an order of the Magistrates Court made 8 September 2003. The Restraining Order of the Magistrates Court provides:
“1. That subject to any right title or prior interest of a mortgagee under a mortgage lodged for registration in the Lands Titles Office prior to the date of this order the defendant be prohibited whether by himself, his servants, agents, workers or otherwise until further order from dealing or attempting to deal in anyway howsoever with his interest in the property situate at 17 Traminer Driver, Angle Vale in the Sate of South Australia, being the whole of the land comprised and described in Certificate of Title Volume 5318 Folio 824.
2. …..
3. That the Registrar General is hereby directed to enter a memorial of this order upon Certificate of Title Volume 5318 Folio 824 pursuant to section 64 of the Real Property Act 1886 notwithstanding that the relevant duplicate certificate of title be not produced to him.”
Having regard to the fact the rights of a third party may be affected and the fact that Mr Chandler did not contest the claim of Ms Wren, I need to be satisfied that this court does have the jurisdiction to make the order which is sought. I do not suggest that it is the case, but there is a possibility that an order by default under the De Facto Relationships Act 1996 could be used as a device to defeat a claim by the Director of Public Prosecutions for forfeiture. On 9 June 2904, I required the plaintiff’s solicitors to inform the Director of the existence of these proceedings. On 16 June 2004 counsel appeared on behalf of the Director, but could not take a position because she was awaiting advice from the Crown Solicitor’s Office. On 8 July 2004 and 13 August 2004 I was advised the Director had not determined a final position because she was awaiting the “Crown Law opinion”. Counsel for the Director did not oppose the suggestion that I should proceed to deliver judgment.
The Restraining Order only restrains Mr Chandler from dealing with his interest in the property. It does not vary the interests of the parties in the property. On 13 August 2004 I determined to hand down reasons for decision because the Director had a sufficient opportunity to determine an attitude, and there was no indication when the “Crown Law opinion” might be available. Additionally, I could not see how the “Crown Law opinion” could affect the entitlement of Ms Wren. On its face the Restraining Order does not prejudice the ability of this court to make an order which could diminish Mr Chandler’s interest in the property. Also a transfer by reason of an order of the court does not amount to Mr Chandler dealing in the property and a transfer by order of this court is not prevented by the Restraining Order.
At the moment I do not have to determine what the position would be if an automatic forfeiture under the Criminal Assets Confiscation Act 1996 occurred before this court made an order pursuant to section 10 of the De Facto Relationships Act 1996. The Criminal Assets Confiscation Act 1996 provides in section 5:
“5. Property is to be regarded as liable to forfeiture--
(a)if the property is tainted property; or
(b)if--
(i)a forfeiture offence has been committed or there are reasonable grounds to suspect the commission of a forfeiture offence; and
(ii)there are reasonable grounds to suppose that the property may be required to satisfy a present or future forfeiture order.”
Property is “tainted property” if the property was acquired for the purpose of committing a forfeiture offence, or was used in, or in connection with, the commission of a forfeiture offence or was the proceeds of a forfeiture offence (section 4(1)). Subsection (1a) provides that “if tainted property is converted (by sale, exchange or in some other way) into other property, the other property is also tainted”. However, if a person acquires title to tainted property in good faith and for valuable consideration the property ceases to be tainted property (section 4(2)). That is unlikely to happen in this case because the Restraining Order is noted on the Title and any purchaser is likely to have notice.
There is another more fundamental question. Is the “tainted property” the whole of the house property or is it the interest of Mr Chandler as joint tenant. Put another way is the interest of Ms Wren liable to forfeiture because her interest is also “tainted property”.
If the interest of Mr Chandler in the house is tainted property, an order of this court pursuant to section 10 of the De Facto Relationships Act 1996 cannot change the characterisation of the property and the proceeds of a sale could be traced into the hands of Ms Wren.
In my opinion the fact of the prosecution and possible operation of the Criminal Assets Confiscation Act 1996 is not a reason to deny a determination of the rights of Ms Wren. If property which is subject to an order of this court is subsequently forfeited by operation of law then so be it.
The fact that Mr Chandler is presumed to be innocent is one reason why this court should proceed to determine Ms Wren’s claim in the ordinary course of the business of the court. Another is that a delay in the determination of her claim could give rise to an injustice to her. As things stand she is deprived of the benefit of her joint interest in the property.
To return to the question of jurisdiction, I am satisfied that Mr Chandler was resident in South Australia when the application was made. Ms Wren’s counsel submitted that she was also resident in South Australia at that time (25 July 2002), but that submission is contrary to a medical certificate that Ms Wren had been a patient of a medical practice in Queensland since 28 June 2002. However, the fact that Mr Chandler was a resident in South Australia is sufficient.
I am also satisfied that Ms Wren and Mr Chandler were resident in South Australia for a substantial part of the period of their relationship so that the requirement in subsection 9(2)(b) is satisfied.
The requirement which has given me cause for concern is subsection 9(2)(c) which requires that an application may only be made if “the de facto relationship existed for at least three years or there is a child of the de facto partners”. There is no child and I must therefore be satisfied that the relevant relationship existed for at least three years.
The evidence as to the cohabitation of the parties is imprecise. Ms Wren’s pleading descends no further than to allege that “the parties cohabited in a de facto relationship”. The particulars are that “the parties lived together in a genuine domestic basis as husband and wife in South Australia”. The Defence asserts that the parties commenced cohabitation in 1989, separated in or about May 1997 and reconciled in about October 2000 with the parties again separating on or about 27 May 2002. It is common ground that the parties finally separated on or about 27 May 2002.
If the only period of cohabitation was between October 2000 and 27 May 2002, the requirement of section 9(1)(c) of the De Facto Relationships Act 1996 would not be satisfied, because the parties would not have been in a de facto relationship for at least three years. Accordingly, the pleadings raise the question of whether the earlier cohabitation between 1989 and May 1997 can be added to the period of cohabitation which preceded the final separation on 27 May 2002.
The situation described by the evidence of the plaintiff is more convoluted than that asserted in the Defence. The plaintiff described a situation where cohabitation first commenced in 1989. The De Facto Relationships Act 1996 commenced on 16 December 1996. The plaintiff said that in 1997 there was a period of six to eight months’ separation, that in October 1997 there was a resumption of cohabitation, but that in January 1998 the parties separated for two to three months when the plaintiff was hospitalised because of a suicide attempt. She said that cohabitation resumed in October 1997, that there was a separation of two to three months in January 1998, that between October and November 1998 their relationship was “on again/off again” and that in June 1999 the plaintiff commenced renting a property at Gunther Street, Elizabeth Vale for a period of twelve months. She said that she resided primarily at Gunther Street for about three months. Exhibit P18 is a tenancy agreement between Ms Wren and the Women’s Housing Association Inc in respect of premises at Gunther Street. The plaintiff’s evidence about that tenancy is imprecise. She said that she lived with the defendant in a property at Lelta Avenue, but kept her “women’s housing unit” where her daughter lived. She used Gunther Street as a refuge when she was having trouble with the defendant. That was during the period of three years preceding the final separation on 27 May 2002.
The parties purchased the property at Traminer Drive in October 2000. Cohabitation seems to have resumed either at that time or at some time prior to that. As I have mentioned, the final separation of the parties occurred on 27 May 2002.
There is a dispute between the plaintiff and the defendant on the pleadings. For the purpose of determining jurisdiction I can only rely upon the evidence.
The evidence of the plaintiff establishes an aggregate period of cohabitation well in excess of three years. However, the evidence does not establish that there had been three years continuous cohabitation prior to the final separation on 27 May 2002.
If the parties cohabited at Traminer Drive from the time of the purchase of that property in October 2000 until 27 May 2002, that would only be a period of about 18 or 19 months. When asked how long she had been living with Mr Chandler before the purchase of Traminer Drive she said “15 months may be”. Her evidence was imprecise, but that would mean that Ms Wren and Mr Chandler had commenced living together in about July 1999. That was only about one month after she started living at Gunther Street. If that is correct, they had been living together less than the three years required by section 9(1)(c) of the De Facto Relationships Act 1996.
In order for the parties to have been in a de facto relationship for three continuous years up until 27 May 2002 they needed to have commenced cohabitation prior to 27 May 1999. The evidence does not establish that. As I have mentioned the plaintiff took out the lease of the property at Gunther Street in June 1999. She gave evidence that she resided primarily at Gunther Street for about three months from June 1999 (Chronology, Exhibit P24). She says that she maintained the lease at Gunther Street in case her daughter needed to live in the property if the relationship broke down. Her evidence does not establish when she resumed cohabitation with the defendant. There is evidence that it was before October 2000 when the parties purchased the property at Traminer Drive, but what is important is that the evidence does not establish a three-year period prior to 27 May 2002. Accordingly, the three year period required by section 9(1)(c) can only be satisfied by including periods of cohabitation prior to June 1999. Whether it is appropriate to do that depends on whether a “de facto relationship” as defined in section 3 is terminated when the man and the woman cease living together or whether one can aggregate all the separate periods during which the parties have lived together for the purpose of determining the duration of the “de facto relationship”. If a “de facto relationship” is terminated when a man and woman cease living together then a new “de facto relationship” may be created if cohabitation is resumed. If the resumption of cohabitation gives rise to a separate “de facto relationship” the evidence in this case would not establish a de facto relationship that had existed for at least three years as required by section 9(1)(c).
In Germinario v Pinkerton[1] His Honour Judge Anderson found that there was a genuine domestic relationship of the type required by section 3 of the De Facto Relationships Act 1996 in respect of a period from 8 July 1994 until 19 June 1998, but in doing so His Honour disregarded periods of cohabitation during the period from May 1990 until 8 July 1994. His Honour treated the different periods during which the parties had lived together as constituting separate de facto relationships. If I followed His Honour’s reasoning and determined that only the last period of cohabitation was relevant to the relationship I would not be able to find that the plaintiff had satisfied the requirement of subsection 9(2)(c).
[1] [2000] SADC 89 (13 July 2000)
There are cases which suggest that an “on again/off again” relationship can give rise to a “series of relevant de facto relationships”. See Jones v Grech[2].
[2] [2001] NSWCA 208 (10 July 2001) per Powell JA at paragraph 3
In Thomson v Badger[3] Young J considered the provisions of the De Facto Relationships Act (NSW) 1984 and held that while the relevant relationship had continued over a seven-year period and was not always happy the relationship always continued from where it left off and therefore amounted to one de facto relationship between 1981 and 1988 so that the provisions of the Act could apply. A very rough calculation made by His Honour indicated that during a period of seven years the parties had cohabited for various periods which totalled 44½ months and they were separated for 39½ months. His Honour said:
“Looking at the totality of the relationship over the period of seven years one can see it was not the happiest of relationships but was one which always continued on from where it left off. There was an incident, a separation and then usually a short time later the parties got back together again on the same basis as before. In my view the proper determination of the factual question raised is that there was a de facto relationship which continued between July 1981 and June 1998.”
[3] (1989) 13 Fam LR 559
That is, His Honour concluded that there was only one relationship although the evidence established that there were 13 separate periods of cohabitation. His Honour distinguished Hibberson v George[4] and Lipman v Lipman[5] where the New South Wales Court of Appeal had determined that “a de facto relationship” for the purpose of the New South Wales legislation could not be regarded as continuing in circumstances where the parties had separated. In Lipman Powell J said:
“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 to 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.”
[4] (1988-89) 12 Fam LR 725
[5] (1989) 13 FAMLR 1
His Honour’s reference to a relationship being renewed supports the contention that there is only one relationship between de facto partners rather than separate relationships covering each period of cohabitation.
In this case cohabitation ceased when the parties separated from time to time. The question is whether the relationship was revived by the resumption of cohabitation so that the new period of cohabitation formed part of the existing de facto relationship rather than a new and separate de facto relationship. In considering this question it is helpful to consider the meaning of the word “relationship”. The Shorter Oxford English Dictionary defines “relationship” as “the state of being related; a condition or character based upon this; kinship”. The Macquarie Dictionary 2nd Revised Edition defines relationship to include “an emotional connection between people, sometimes involving sexual relations”.
While the definitions are not conclusive of the issues raised by this case, they do indicate that the word is not a term of art and that it is necessary to consider the overall association rather than specific periods of time.
In Jones v Grech Powell JA was critical of the failure of the court at first instance to determine “with some degree of precision whether there had been a relevant de facto relationship or a series of de facto relationships between the parties”. His Honour concluded that in Jones v Grech there was not one single albeit discontinued de facto relationship between the parties from 1965 to 1997 but two distinct relevant de facto relationships, the first between 1984 or 1985 until 1991 and the second between 1993 and about 1997. Ipp AJA identified the specific problem which arises in this case in the following way:
“It is not uncommon for parties to a de facto relationship to terminate their relationship and, thereafter, at a later date, to recommence living in a de facto relationship. On occasions, the same parties may live in a de facto relationship over many intermittent periods. The question therefore arises whether, for the purposes of s 20(1), each one of the intermittent periods is to be regarded as constituting a separate and different de facto relationship, or whether the aggregate of the intermittent periods is to be considered as being one de facto relationship to which the Court should have regard.”
Ipp AJA referred to Fotheringham v Fotheringham[6] where a Master had held that where parties had been together in two separate de facto relationships (that is, over two separate and interrupted periods of time) then the court could have regard to the aggregate of the two periods. His Honour noted that in Fotheringham Powell JA had expressed the conclusion that the Master was wrong, but upheld the appeal so that the other two members of the court did not consider the issue. In Jones v Grech Ipp JA concluded that the wording of section 18(1) of the New South Wales Act compelled the inference that Parliament intended the court to have regard to the total period (comprising any separate periods) during which parties lived together in a de facto relationship. His Honour said (paragraph 76):
“The purpose of the Act is remedial. It is intended to remedy injustice, inter alia, because the law prior to the Act had ‘the effect of permitting a de facto partner to be enriched at the expense of the contributions, whether financial or non-financial, made by the other partner.’ For that intention to be adequately fulfilled, it is necessary, in my view, for the contributions made by a de facto partner to be assessed by reference to the entire period of the de facto relationship, irrespective of whether it is made up of a series of broken or intermittent periods or whether it is constituted by one continuous period of cohabitation.”
[6] Unreported, NSWCCA, 28 August 1998
Davies AJA agreed with Ipp AJA stating that the factors specified in 20(1)(a) and (b) of the New South Wales Act required the Master to look at events which occurred prior to the commencement of the last period of the de facto relationship. Davies AJA said that the actions of the parties must be placed into context and given weight and relevance according to the incidents of their relationship over time including during any prior time when a relationship existed between them. Davies AJA referred to Evans v. Marmont[7] where Gleeson CJ and McLelland CJ in Eq said:
“It would be unrealistic to attempt to evaluate contributions of the kinds referred to in par (a) and par (b) for the purpose of determining what is just and equitable having regard to those contributions, in isolation from the nature and incidents of the relationship as a whole….”
[7] (1997) 42 NSWLR 70; (1997) 21 Fam LR 760
His Honour also referred to McDonald v Stelzer[8] where Priestley JA held that Bergin J had been entitled to take into account the contributions of a de facto partner “during the period of the full de facto relationship”.
[8] [2000] NSWCA 302
The comments of Ipp AJA about the New South Wales Act to which I have referred are pertinent to the South Australian De Facto Relationships Act 1996. As a matter of logic, in order to satisfy the requirement of section 10 and divide the property between the parties in a way that is just and equitable one should have regard to the totality of the contributions made by the parties otherwise there could be cases in which contributions made by one of the parties during earlier periods of cohabitation would have to be ignored with consequent injustice.
I have come to the conclusion that there is only one “relationship” between the parties. The parties may have lived together for specific periods of time and lived apart during other periods, but I think it is artificial to classify each discrete period during which they lived together as a separate “relationship”. Accordingly, I have formed the view that the duration of the “de facto relationship” between Ms Wren and Mr Chandler should be assessed by reference to the aggregation of the periods during which they lived together between 1989 and 27 May 2002. On that basis they have satisfied the requirement of section 9(1)(c) of the De Facto Relationships Act 1996 that the de facto relationship must have existed for at least three years.
The application by Ms Wren was made within one year after the end of the de facto relationship, that is 27 May 2002, and the requirement of subsection 9(3) is satisfied.
In the circumstances I find that all of the requirements of section 9 of the De Facto Relationships Act 1996 have been met and the court does have jurisdiction to entertain the application of Ms Wren.
THE PROPERTY
The next inquiry is to identify the property of either or both of the de facto partners.
The most significant asset is a house property at 17 Traminer Drive, Angle Vale. Photographs show that it is a substantial and well-appointed residence. The parties placed the property on the market about 12 months’ ago and a prospective purchaser signed a contract for $425,000. That is an indication of its value. The property is subject to two mortgages. There is some doubt about the second mortgage, but the equity of the partners in the Angle Vale property approximates $140,000.
Other assets of the parties are listed in a valuation made by Mr Roger Kearns as at February 2003. He valued the items of personal property in the possession of Mr Chandler at $154,340 and the items at Ms Wren’s residence at $14,165. I accept the valuation of Mr Kearns as evidence of the extent of the items of personal property and their value. The items in the possession of Mr Chandler include relatively expensive furniture, television sets and hi-fi equipment, Corvette motor vehicles which were associated with a business formerly carried on by Ms Wren and Mr Chandler and two boats.
Section 10 requires the court to make orders to divide the property of either or both the de facto partners between them in a way that is just and equitable. Section 11 provides that in deciding whether to make an order 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.”
Section 12 directs the court (as far as practicable) to finally resolve the questions about the division of property between the de facto partners.
There are many cases which consider the way in which the court should go about its task. Observations which have been made are that there is no presumption of equal division (Black v Black[9]) that fault or blame should play no part in the exercise (Evans v. Marmont (supra)) and that the “other relevant matters” contemplated by subsection 11(1)(d) include matters such as the length of the relationship, the financial resources of the parties and their respective ages. See Dwyer v. Kaljo[10]; Love v Chidley[11]; Condoluci v Condoluci[12].
[9] (1991) 15 Fam LR 109
[10] (1992) 27 NSWLR 728
[11] [2001] SADC 36
[12] [2002] SADC 159
In Davey v Lee[13] McLelland J said in relation to section 20 of the New South Wales Act:
“It is thus apparent that the court is not required under sec. 20 to undertake a reductionist process analogous to the taking of partnership accounts (notoriously one of the most time-consuming and expensive of litigious exercises) by examining every alleged ‘contribution’ of the kinds described in the section with a view to putting a monetary value on it in order to reach an accounting balance one way or the other, which is to be then eliminated by the requisite financial adjustment. Rather the court is required to make a holistic value judgment in the exercise of a discretionary power of a very general kind.”
[13] (1989) 13 Fam LR 688 at 689
A similar approach was adopted with respect to the South Australian Act in Germinario v Pinkerton (supra), Love v Chidley (supra) and Simmons v Williams[14].
[14] [2002] SADC 168 (13 December 2002)
There are certain cases where an “asset by asset” approach may be preferable to the “holistic approach”, but there is nothing about the present case to suggest that an “asset by asset” approach is appropriate.
The evidence about the acquisition of the personal property and the contributions of the respective parties is vague. The assets of the de facto partners are significant. The evidence does identify some specific contributions to the de facto relationship by the plaintiff, but the evidence does not explain how the parties came to acquire assets such as the Corvette motor vehicles which have a total value of more than $80,000 or the boats which have a value of $17,500. In the absence of such evidence the task of the court is not an easy one.
The parties did not have any significant assets at the commencement of the de facto relationship. During the relationship they bought and sold various properties. The defendant does not appear to have had a regular income as an employee. The plaintiff had been a nurse in New South Wales and received compensation payments over a number of years which she contributed to the relationship. In 1993 she received a lump sum of $50,000 for pain and suffering and in 1999 she received $75,000 by way of redemption of her future entitlement. Between August 1999 and 30 June 2001 the parties conducted a business known as “Corvette Imports” which was a business involving the importation of American motor vehicles which were converted to meet Australian requirements. There is no evidence as to the profitability of that business but it is unlikely to have been significant.
In one way or another the two compensation payments of $50,000 and $75,000 which the plaintiff received have been applied for the joint benefit of the parties.
The property at 17 Traminer Drive, Angle Vale was purchased in about October 2000. The purchase price was $325,000 but the total funds payable were $341,738. The property was subject to a mortgage to Perpetual Trustees Victoria Limited for $261,000. There is a second mortgage on the property for $29,000 but that relates to the debt of another person. The status of that mortgage is not made clear by the evidence. The plaintiff gave evidence that the rest of the purchase price came from the parties’ joint savings. The Defence asserts that a deposit of $5,000 was paid by the defendant and a balance of $78,941 was “payable from proceeds held by the defendant”. There is no evidence to substantiate the claim. If the second mortgage is ignored the parties must have contributed about $80,000. The plaintiff’s evidence does not explain the source of the “joint savings” and no evidence was adduced by the defendant to explain the “proceeds held by the defendant”. I cannot make any finding as to the real source of the deposit on the Angle Vale property.
The Certificate of Title establishes that the property at Angle Vale is owned by the parties jointly. The evidence does not establish who owns the items of personal property. The evidence goes no further than to establish which of the parties has possession of the assets at the present time.
I accept that the plaintiff made the usual contribution of a wife as a homemaker. She gave evidence that she did cleaning and attended to other domestic chores, although for some reason which was never explained she did not attend to the cooking.
The evidence establishes that the parties had lived as man and wife and that any assets were acquired for their joint benefit.
There is no evidence of any significant earnings of either party other than the plaintiff’s income as a nurse and the payments of compensation of $10,000 per annum which the plaintiff received from an insurer up until the time when she received the $75,000 commutation payment in September 1999. Specifically there is no evidence of the defendant being in employment other than the car business.
Ms Wren should be given credit for the weekly compensation payments which she received up until the employer’s liability was commuted, her contribution of the two lump sums and her contribution as a homemaker.
Apart from the two payments of $50,000 and $75,000 which I have mentioned her evidence does not enable me to distinguish between the contributions of the parties. I find that with the exception of the two payments the parties made equal financial and non-financial contributions to the acquisition, conservation and improvement of the property of either or both of them. Because of the two lump sums I find that the contribution of Ms Wren was greater than that of Mr Chandler.
There is no evidence that the parties have financial resources apart from the real and personal property which I have mentioned.
That plaintiff has no earning capacity and is in receipt of a pension. There is no evidence about the defendant’s earning capacity.
With the exception of the matters, which I have mentioned, there is no evidence to suggest that the contributions by each partner to the other including homemaking were not equal.
There was no relevant cohabitation agreement.
I note that when a property at Lelta Drive was sold by the defendant the plaintiff received $22,500 from the proceeds of sale, but that money was used for the joint benefit of the parties to pay a Mastercard bill, an electricity bill, a gas bill and a phone bill so that the plaintiff personally only retained about $1,500. For present purposes I ignore that sum.
If Mr Chandler made other contributions towards the acquisition of the assets which I have not mentioned, the evidence does not make it clear what those contributions were.
A broad assessment of the assets of the de facto relationship therefore is that the real estate has a net value of $140,000, being an assessed value of $430,000 less $290,000 on account of the two mortgages. I have allowed for the debt secured by the second mortgage, but because of the lack of evidence I cannot make any finding as to a possible right of recovery against the person whose debt the second mortgage secures. The total value of the items of personal property according to Mr Kearns’ valuation is $168,505.
On the basis of Mr Kearns’ valuation Mr Chandler has in his possession personal property valued at more than $140,000 than the personal property in the possession of Ms Wren.
Adopting the approach suggested by McLelland J in Davey v Lee (supra) I desist from embarking on the “reductionist process” which would occur if I attempted to make specific allowance for those contributions such as the $50,000 and $75,000 which are easily identifiable.
I consider that a holistic division of the property of 55% in favour of Ms Wren and 45% in favour of Mr Chandler to be just and equitable.
The net assets are:
· Real estate $140,000 · Personal property in possession of Ms Wren 14,000 · Personal property in possession of Mr Chandler 154,000 $308,000 Ms Wren is entitled to 55% of that amount namely
$169,000
The personal property currently in her possession is valued at
$14,000
I therefore order a payment of $155,000 from Mr Chandler to Ms Wren pursuant to section 10(1)(b).
Minutes have been provided by Ms Wren indicating the orders which she seeks. They include delivery up of the possession of the property at Angle Vale, the sale of the land at Angle Vale, the payment to the plaintiff of a specific sum of money (paragraph 1) and the application of the proceeds of sale of the Angle Vale property towards the judgment sum.
If some proportion of the Angle Vale property is to be treated as tainted property and forfeited then Ms Wren will be at liberty to satisfy her judgment in the normal way against other assets.
I make orders in the terms of the Minutes of Order initialled and dated by me.
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