Suzanne Marian Ferris v Stephen Lance Winslade [1998] ACTSC 172 (13 March 1998)

  
  
  
  
  

  
   

  

   IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

   COOPER J

  

  

   Family Law - De
facto relationship - adjustment of property interests -
considerations for court - whether Family Law Act 1975 (Cth) cases apply -
contributions - assessment of financial resources - superannuation - likely
post-separation inheritance - exercise
of discretion.

  

   Domestic Relationships Act 1994 (ACT)

   Family Law Act 1975 (Cth)

   De Facto Relationships Act 1984 (NSW)

  

   Calverley v Green [1984] HCA 81;  (1984) 155 CLR 242

   Evans v Marmont (1997) 21 Fam LR 760

   Clauson and Clauson (1995) FLC 92-595

   Harris and Harris (1991)
FLC 92-254

   Collins and Collins (1990) FLC 92-149

   Official Receiver v Schultz [1990] HCA 45;  (1990) 170 CLR 306

   Livingston v Commissioner for Stamp Duties [1960] HCA 94;  (1960) 107 CLR 411; (1964) 112
CLR 12 (PC)

   Bernard v Josephs [1982] 1 Ch 391

   Best and Best (1993) FLC 92-418

  

  


  CANBERRA, 21-23 July 1997 (hearing), 13 March 1998 (decision)

   #DATE 13:3:1998, BRISBANE

  

   Counsel for the Plaintiff:
J Brewster

   Solicitors for the Plaintiff: Clayton Utz

   Counsel for the Defendant: T Hanna

   Solicitors for the Defendant:
Snedden Hall & Gallop

  

  

   THE COURT ORDERS THAT:

  

   1. The defendant pay or cause to be paid to the plaintiff within
thirty
(30) days of the entry of these orders, the sum of $190,000.

  

   2. Concurrently with and consequent upon the payment
of the said sum of
$190,000 the plaintiff deliver to the defendant all such documents and do all
such things as shall be necessary
to transfer her interest in the property
situate at 50 Curlewis Crescent, Garran, Canberra in the ACT and the property
known as "Tywardreath"
Kelly's Plains Road, Armidale in the State of New South
Wales together with all plant and equipment and livestock situate at the
said
property.

  

   3. Upon the parties complying the orders 1 and 2 hereof, the defendant
shall indemnify and keep indemnified
the plaintiff in respect of all claims,
suits or actions arising out of her ownership of the said properties referred
to in order
2 hereof. Such indemnify to include but not be limited to the
monies owing to the Advance Bank and secured by mortgage to the said
bank.

  

   4. In the event that the defendant fails or neglects to pay the money in
accordance with order 1 hereof, then the parties
shall do all acts and things
and sign all deeds, documents and writings necessary to cause the said
properties identified in order
2 to be sold by way of private treaty at a
price to be agreed to by the parties in writing or failing such agreement then
by the
president for the time being of the Real Estate Institute of the ACT.
That the proceeds of any sale shall be distributed as follows
:-

  

   (a) in payment out of the mortgage debt to the Advance Bank;

  

   (b) in payment out of legal costs and expenses of
sale;

  

   (c) in payment out of all taxes, council rates outstanding;

  

   (d) in payment to the plaintiff of $190,000;


 

   (e) in payment to the defendant the balance of the monies.

  

   5. The parties file and serve within twenty-one days written
submissions on
the issue of costs.

  

   6. Liberty to apply to each party on seven days notice for the purpose of
working out
and giving effect to these orders.

  

   AND THE COURT DECLARES THAT:

  

   7. At law and equity and as between themselves, each
party is the sole and
absolute owner of all items of personalty currently in his or her respective
possession, such items being formerly
joint personal property of the parties.

  

  

   COOPER J

  

   Introduction

   1. In May 1975 the plaintiff and the defendant
began to cohabit as man and
wife. They were not then married and did not marry thereafter.

  

   2. In January 1992 the parties
moved to Canberra in the Australian Capital
Territory ("the ACT") and in September 1994 purchased a house property at 50
Curlewis
Crescent, Garran in which the family resided. On 4 November 1995 the
parties separated.

  

   3. On 13 June 1996 the plaintiff
filed an originating summons in this Court
seeking relief under the Domestic Relationships Act 1994 (ACT) ("the Act").

  

   4. A "domestic relationship" is defined in s 3 of the Act as follows :-

  

  

   "'domestic relationship' means a personal relationship (other than a legal
marriage) between 2 adults in
which 1 provides personal or financial
commitment and support of a domestic nature for the material benefit of the
other, and includes
a de facto marriage."

   The jurisdiction to grant relief

   5. The Act requires that certain jurisdictional facts be established before
the Court may grant relief :-

  

  

   "11(1) A court shall not
make an order under this Part unless it is
satisfied - (a) that either or both of the parties to the domestic
relationship were resident
in the Territory on the day on which the
application for the order was made; and (b) that - (i) both parties to the
relationship
have resided in the Territory for at least one third of the
period of their relationship; or (ii) substantial contributions of the
kind
referred to in paragraph 15(1)(b) or (c) have been made in the Territory by
the applicant (2) Where the court is so satisfied,
it may make or refuse to
make an order under this Part because of facts and circumstances even though
they, or some of them, took
place before the commencement day or outside the
Territory."

   6. Section 12 of the Act provides :-

  

  

   "12(1) Subject to subsection (2), a court shall not make an order under
this Part unless it is satisfied
that a domestic relationship has existed
between the applicant and the respondent for not less than 2 years. 12(2)
Where the court
is not so satisfied, it may make an order under this Part if
it is satisfied that - (a) there is a child of the parties to the
relationship;
or (b) the applicant - (i) has made substantial contributions of
the kind referred to in paragraph 15(1)(b) or (c) for which the
applicant
would otherwise not be adequately compensated if the order were not made; or
(ii) has the care and control of a child of
the respondent; and that the
failure to make the order would result in serious injustice to the applicant."

   7. Section 13 of the Act imposes a time limit in the following terms :-

  

  

   "13(1) An application for an order under this Part by a party to a domestic
relationship that has ended shall not be made more than 2 years after the day
on which the relationship ended. (2) A court may grant
leave to a person to
apply for an order under this Part after the end of the period referred to in
subsection (1) if it is satisfied
that greater hardship would be caused to the
applicant if leave were refused than if it were granted."

   8. The relationship between
the plaintiff and the defendant was, between
May 1975 and 4 November 1995, a domestic relationship within the meaning of s
3 of the Act.

  

   9. The plaintiff and the defendant were both resident in the ACT on 13 June
1996, the date upon which the application for an order was made: s 11(1)(a) is
satisfied.

  

   10. The property at 50 Curlewis Crescent, Garran, Canberra was acquired
jointly by the plaintiff and the defendant
from their joint funds in equal
amounts. Of the purchase money, $150,000 came from a joint loan from the
Advance Bank secured by
mortgage over the property. The balance purchase
money, $65,000, together with the applicable stamp duty came from the net
proceeds
of sale of a property at 3 Napier Court, Armidale, New South Wales.
The money advanced by the bank and the property acquired with
it became the
property of the parties: Calverley v Green [1984] HCA 81;  (1984) 155 CLR 242 at 252, 257 -
258.

  

   11. The Napier Court property, I find, was acquired and developed jointly
by the
parties as a business venture. They were jointly entitled to the
proceeds of sale: s 11(1)(b)(ii) is satisfied.

  

   12. The domestic relationship between the parties existed for not less than
two years: s 12(1) is satisfied.

  

   13. The application for an order made on 13 June 1995 was made within two
years after the day on which the
relationship ended: s 13(1) is satisfied.

  

   The Legislative Framework

   14. The object of the Act, as far as is practicable, is to end the
financial relationship between the parties to the domestic relationship and to
avoid further
proceedings between them: s 14.

  

   15. Once the jurisdictional facts are established, the Court is empowered
upon the application of a party to a domestic relationship
to adjust the
interests in the property of either or both of the parties in such manner as
to the Court seems just and equitable:
s 15(1).

  

   16. The power to make or to refuse to make an order is discretionary. The
matters relevant to the exercise of the discretion
are set out in s 15(1)(a)
to s 15(1)(e) in the following terms :-

  

  

   " (a) the nature and duration of the relationship; (b) the financial or
non-financial contributions
made directly or indirectly by or on behalf of
either or both of the parties to the acquisition, conservation or improvement
of any
of the property or financial resources of either or both of them; (c)
the contributions (including any in the capacity of home-maker
or parent) made
by either of the parties to the welfare of the other or any child of the
parties; (d) the matters referred to in
subsection 19(2), as far as they are
relevant; and (e) such other matters, if any, as the court considers
relevant."

   17. The
matters referred to in s 19(2) of the Act which are relevant under
s 15(1)(d) are :-

  

  

   "(a) the income, property and financial resources of each party; (b) the
physical and mental capacity of each
party for appropriate gainful employment;
(c) the financial needs and obligations of each party; (d) the
responsibilities of either
party to support any other person; ..... (f) any
payments made to the applicant, pursuant to an order of a court or otherwise,
in
respect of the maintenance of a child or children."

   18. Nothing in the Act affects any right of a party to a domestic
relationship to any remedy or relief under any other Act or law: s 5. Further,
the Court may make an order under s 15(1) of the Act whether or not it has
declared the title or rights of a party in respect of the property the subject
of the application: s 15(2). "Property" for the purpose of the Act is defined,
in relation to the parties to the domestic relationship, as the real or
personal property to which either is, or both
are, entitled: s 3(1).

  

   19. The Act was based on a discussion paper (ISBN 1 86331 161 0) issued in
July 1993 by the then Attorney-General of the ACT, Mr Terry Connolly. It was
entitled "A Proposal for Domestic Relationship Legislation in the ACT" and
included a draft Domestic Relationships Bill. The original proposal was to
define a "domestic relationship" as either of two
relationships. The first was
a "de facto relationship", being the relationship of living or having lived
with a person of the opposite
sex as husband and wife, although not married,
on a bona fide domestic basis. The second was any other type of personal
relationship
between two adults (other than a married couple) in which one
party provides personal or financial commitment and support of a domestic
nature to the material benefit of the other party. As a consequence of
community response to the discussion paper, the proposed definition
was not
proceeded with. In his second reading speech, the Attorney-General said :-

  

  

   "The response from the community to
the discussion paper and draft
legislation has been overwhelmingly supportive, and specific comments have
been taken into account.
..... We have removed the definition of de facto
relationship which was in the exposure draft of the Bill, as this was
considered
an unnecessary distinction on the basis of gender. The definition,
in referring to a relationship between man and a woman, seems
to unnecessarily
put the issue of sex back into the Bill. Instead of the Bill being debated on
issues of equity and convenience,
the definition redirects attention to the
contentious and divisive issues of government recognition of non-marital
heterosexual and
homosexual relationships."

   (21 April 1994, Hansard p 1119).

  

   20. The Attorney-General had earlier in his speech made the
point that a
sexual relationship was irrelevant to the question of whether a domestic
relationship existed (Hansard at 1117) and
that a domestic relationship was
not one limited to a de facto marriage between persons of the opposite sex. In
this respect the
Act has a wider operation than the Family Law Act 1975 (Cth)
("the Family Law Act"), the De Facto Relationships Act 1984 (NSW) ("the NSW
Act") and the De Facto Relationship Act 1991 (NT). However, because the Act
covers de facto marriages, certain of its provisions bear passing familiarity
to some of the provisions of these Acts.

  

   21.
It was submitted by counsel for the defendant that the Court, in
determining the content of what was just and equitable for the purposes
of s
15(1), should adopt the approach of the New South Wales Court of Appeal in
Evans v Marmont (1997) 21 Fam LR 760. In that case,
the Court of Appeal had
under consideration the proper meaning and effect of s 20 of the NSW Act.

  

   22. Section 20 of the NSW
Act provides :-

  

  

   "20(1) On an application by a de facto partner for an order under this Part
to adjust interests with
respect to the property of the de facto partners or
either of them, a court may make such order adjusting the interests of the
partners
in the property as to it seems just and equitable having regard to:
(a) the financial and non-financial contributions made directly
or indirectly
by or on behalf of the de facto partners to the acquisition, conservation or
improvement of any of the property of
the partners or either of them or to the
financial resources of the partners or either of them, and (b) the
contributions, including
any contributions made in the capacity of homemaker
or parent, made by either of the de facto partners to the welfare of the other
de facto partner or to the welfare of the family constituted by the partners
and one or more of the following, namely: (i) a child
of the partners, (ii) a
child accepted by the partners or either of them into the household of the
partners, whether or not the child
is a child of either of the partners."

   23. In the Court of Appeal a bench of five judges sat to resolve
differences of opinion
within the Supreme Court of New South Wales as to the
nature and extent of the discretion under s 20 of the NSW Act. The majority,
Gleeson CJ and McLelland CJ in Eq, with whom Meagher JA agreed, held that a
determination of what was "just and equitable" under
s 20 of the NSW Act was
limited to the factors contained in s 20(1)(a) and s 20(1)(b). They rejected
the view of the minority (Mason
P and Priestly JA) that the Court was not
limited to a consideration of the matters in paragraphs (a) and (b) and might
take into
account any other matter relevant to the exercise of a broad
judicial discretion to do what was just and equitable in the circumstances
of
the case before the Court.

  

   24. In reaching the conclusion that the discretion in s 20 of the NSW Act
was limited to the
matters in s 20(1)(a) and s 20(1)(b), the majority decision
in Evans v Marmont took into account that :-

  

   (a) the NSW Act
was based on a 1983 report of the New South Wales Law
Reform Commission ("Report on De Facto Relationship" LRC 36);

   (b) the Commission
did not intend merely to replicate the provisions of the
Family Law Act;

   (c) the differences between the Family Law Act and the NSW Act were
"substantial, conspicuous and deliberate" (at p 767);

   (d) the differences reflected the limited purposes
of the NSW Act, in the
context of a 1983 Law Reform Commission report, which was to enable courts to
exercise an "adjustive jurisdiction"
wherein contributions to the acquisition
of property, other than direct financial contributions, could be taken into
account in order
to do justice as between the parties in respect of the
contributions of each to the acquisition;

   (e) the differences also reflected
the fact that de facto relationships
lacked the public commitment and legal status afforded to the relationship of
marriage;

  
(f) the word "adjustment" in s 20 did not "sound like an invitation to
engage in an unbounded exercise in distributive justice" (at
768);

   (g) the NSW Act did not contain a provision similar to s 75(2)(o) of the
Family Law Act which allows the Court to consider :-

  

  

   "... any fact or circumstance which, in the opinion of the court, the
justice of
the case requires to be taken into account."

   25. As mentioned earlier, the Act arose out of a discussion paper which
contained
a specific proposal for reform. In the preface to the paper the
Attorney-General said (at p v) :-

  

  

   "The financial conduct
of people who live in durable domestic relationships
is often similar to those of married persons. However, it is not intended to
liken these relationships to marriage. This is a fundamental difference in the
ACT approach to that of the States. Even so, it is
considered that the
Commonwealth Family Law Act approach to property, as well as the practice and
procedure in settling property disputes, is of considerable use as a model for
change in the ACT."

   26. The problem which the proposal sought to address was identified in the
opening paragraphs of the discussion
paper. So far as is relevant, the
proposal said (at p 1) :-

  

  

   "1. Many people live in durable domestic relationships where
there is a
commitment to the day to day care and welfare of another. The law, however, is
inconsistent and uncertain when it comes
to protecting their rights and
enforcing their obligations. 2. This is unlike the situation for those who
live in relationships which
have a well defined legal status, such as
marriage. For these people, the law is relatively clear. Such people have
access to specific
legislation, courts and procedures to prevent the unjust
enrichment of another person at their expense. 3. But there are those who
may
be in similar circumstances but who do not have the benefit of a defined legal
status, and they must rely on obscure, costly
and uncertain remedies. As
social attitudes have changed, there seems little reason today to deny special
consideration to all who
have contributed to the financial or personal welfare
of another person at their own expense. Case example Two people may live
together
for some years. During this time one works at providing services as a
home maker while the other earns money and progresses a career.
If they are
married, in the event of a dispute, they have access to the Family Court and a
set of well-known and generally accepted
principles founded on fairness.
Because the law is accessible, a dispute can be resolved relatively quickly
and at minimal cost.
However, if they are not married, even if they are not
living in a sexual relationship, they must rely upon specific legal remedies
which often have uncertain and unfair consequences. In some cases there may
not even be a satisfactory remedy."

   27. Section 15
of the Act in terms is substantially different to s 20 of
the NSW Act and contains additional matters relevant to the exercise of
the
discretion which are demonstrably wider than s 20(1)(a) and s 20(1)(b) of the
NSW Act. Specifically, s 15(1)(e) is to the same
effect as s 75(2)(o) of the
Family Law Act. That the legislature intended that the Court should not be
limited in the fashion provided for in s 20 of the NSW Act is apparent
from
the explanatory memorandum accompanying the Domestic Relationships Bill . As
to clause 15 (Property Adjustment Orders), it said
(at 6 - 7) :-

  

  

   "The requirement that the order is to be one which is 'just and equitable'
invokes principles of justice
and equity. It introduces considerations of the
states of mind of those in the relationship, and would enable the court to
consider
such matters as : - whether some expectation on the part of the
contributor as to his or her future entitlement to the property was
reasonable
under the circumstances (eg promises or assurances by the other party); -
whether the contributor had suffered real detriment
in making the
contribution; and - whether the other party would be unjustly enriched by the
denial of the contributor of any entitlement
in the property. This provision
is thus aimed at making the intention of the legislation to require more than
just contribution to
property, but also a reasonable expectation by the
contributor that he or she would share in it, or that some injustice would
result
if it is not shared. The requirement that the court consider the nature
and duration of the relationship goes further than NSW legislation
on de facto
relationships. It involves consideration of such matters as : - the degree of
mutual commitment, interdependence and
arrangements for support; - whether
there were children of the relationship and their care; - whether the parties
lived under the
one roof or otherwise; - the ownership, use and acquisition of
property; and - the performance of household tasks." 28. That the
legislature
continued to see the Family Law Act provisions relating to property claims
between spouses as the model on which the Act was based is apparent from the
second reading
speech of Mr Connolly. The then Attorney-General said (Hansard
p 1119; 21 April 1994) :-

  

  

   "This Bill addresses the fact
that those who live in domestic relationships
are subject to the laws which, for the most part, are based on the traditional
laws
of property, which do not take account of matters such as unpaid labour
in the home and have not evolved to do so. The Commonwealth
Family Law Act
takes account of those matters when dealing with property claims between
spouses. However, it can deal only with legally married
couples. There is no
similar legislation for those living in domestic relationships in the ACT. By
limiting special consideration
of indirect and non-financial contributions to
property to those who are legally married, the law does not adequately
recognise that
families may take other forms than the traditional nuclear
family of a married couple and their children. This is a relevant
consideration
for this Assembly in the Year of the Family."

   29. The ACT legislature has not sought to equate a de facto marriage to a
legal
marriage. Nor has it, in relation to adjustment of property rights
between parties to a domestic relationship, replicated, exactly,
the Family
Law Act for the adjustment of property rights. However, the similarities in
the nature of the discretion to be exercised in making orders
adjusting
property rights, in my view mean that recourse can and should be had to
decisions of the Family Court of Australia ("the
Family Court") under s 79 of
the Family Law Act as to the appropriate principles which guide the exercise
of the discretion under s 15 of the Act. Further, the New South Wales cases
which limit the matters to which the court may have regard in exercising its
discretion, under s 20 of the NSW Act, do not in my
view constrain the
approach of this Court in considering applications under s 15 of the Act.

  

   30. A useful discussion of the
approach of the Family Court to orders under
s 79 of the Family Law Act is contained in the judgment of a Full Court of the
Family Court in Clauson and Clauson (1995) FLC 92-595. There, the Full Court
considered that the making of property adjustment orders was a process
involving three steps (at 81,907) :-

  

   (a) identification
of the property of the parties;

   (b) the evaluation of the "contributions" of the parties within s 79(4)(a)
to (c) (roughly equivalent to s 15(1)(b) and (c) of the Act); and

   (c) the evaluation of the matters referred to in s 75(2), incorporated
by s
79(4)(e) (corresponding to s 19(2) and s 15(1)(d) respectively).

  

   31. The requirement in s 15(1)(a) of the Act for the
Court to consider the
nature and duration of the relationship is relevant to both the second and
third stages of the process referred
to above and involves an assessment of
the expectations of the parties as to what each would contribute, the worth of
it to the relationship
and how it would be reflected in the property interests
of each. So far as the evaluation under s 15(1)(d) looks to the present and
future financial resources and the present and future obligations of each of
the parties, the nature and duration of the relationship
is relevant, for
example, to whether one party, who has provided the homemaker contributions
over many years, has or has not lost
the work skills necessary to immediately
or in the future obtain gainful employment.

  

   32. Finally, s 15(1)(f), the catch all
provision, requires the Court to
consider any other matter which is relevant to do justice in the circumstances
of any particular
case before the Court where regard only to the matters in
paragraphs (a), (b), (c) and (d) may not result in a just and equitable
outcome for one of the parties.

  

   33. I agree with the observations of a Full Court of the Family Court in
Harris and Harris
(1991) FLC 92-254 at 78,705 :-

  

  

   "The task of the court in proceedings under section 79 is not akin to an
accounting exercise.
To borrow a phrase used by McLelland J in Davey v Lee
(1990) DFC [partialdiff]95-084; (1990) 13 Fam LR 688 at 689 in relation to
section 20 of the De Facto Relationships Act 1984 (NSW) 'the Court is required
to make a holistic value judgment in the exercise
of a discretionary power of
a very general kind'".

   34. In determining what assessment should be made for the matters contained
in s 19(2) of the Act, to the extent that they are made relevant to the
exercise of the discretion by s 15(1)(d), it is the real
impact in money terms
of those matters on each of the parties which is ultimately the critical
issue: Clauson and Clauson at 81,911.
It is the balancing of those impacts
upon each party within the parameters contained in s 15 as a whole which
determines the ultimate
outcome.

  

   35. The exercise of the power under s 15 "ultimately requires the Court to
select a round figure or percentage as
being the just and equitable
translation into money terms of the wide and general considerations which [s
15(1)(d)] requires the
Court to take into account": Collins and Collins (1990)
FLC 92-149 at 78,043-9.

  

   The nature and duration of the relationship

   36. The plaintiff was born on 10 November 1940. In May 1975 the plaintiff,
then aged thirty-five years, was a teacher at the
Collingwood Education Centre
and was working nights as an adult migrant teacher. At that time she had a
child of a previous marriage,
Penelope, who was born on 24 February 1974.

  

   37. The defendant was born on 8 January 1958. In May 1975 he was a student
completing
his Year 12 education.

  

   38. The parties began to cohabit as man and wife in May 1975 at a house
property owned by the plaintiff
at Best Street, Fitzroy, Melbourne, Victoria.

  

   39. There was one child of the relationship, Sarah, born on 5 October 1978.

  

   40. The parties and the two girls, lived as a family unit. Both Sarah and
Penelope used the family name Winslade and both
the plaintiff and the
defendant were involved in their upbringing and care.

  

   41. Although the defendant made clear to the
plaintiff that he did not wish
to formally marry, the relationship was long term and the parties acted in all
respects as if they
were married. Until the relationship terminated in
November 1995 the expectations of the parties were that they and both
children,
until adulthood, would function as a family unit.

  

   The financial history of the relationship

   42. From the beginning of
the parties' cohabitation in the Best Street
property they undertook substantial renovation and building work to that
property and
to a number of successive properties in Victoria, New South Wales
and the ACT. Their real estate dealings, renovation and building
work on the
properties was the subject of detailed affidavits by the parties and the
extent of the parties' contributions to, and
roles in, those activities were
strongly contested.

  

   43. The evidence on these issues occupied a considerable amount of time
at
trial. It seems clear that, broadly, the roles of the parties involved the
plaintiff in, amongst other things, selection of the
various properties
(although she admitted that the defendant "always looked at them before the
decision was made"), the interior
design and decoration of the property,
including painting and construction of soft furnishings, and the gardening and
landscaping.
The defendant undertook the "heavier" building and renovation
work but was clearly involved and played a major role in internal and
external
renovations, construction, wiring, plumbing and the numerous skilled and
unskilled tasks that were required in construction
and renovation of the
properties.

  

   44. It seems to me that it was clearly a joint effort, a collaboration
between partners
to the acquisition, development/refurbishment and ultimate
sale of the properties. I do not propose, nor do I think it necessary,
to
examine in minute detail the contributions alleged to have been made and the
very specific allegations made relating to each property.
I should record that
my impression of both the defendant and the plaintiff, as witnesses, was that
the recollection of each usually
unduly favoured his or her own contribution
and overly denigrated the contribution of the other, whether the contribution
was financial
or non-financial in character.

  

   45. It seems clear that the roles of the parties developed over time and
that, as for example
with the conveyancing of the properties, it was a
collaborative effort between them to achieve the results they wanted. It is
not
possible to break down their contributions any further.

  

   46. At the time the defendant commenced to cohabit with the plaintiff
at
Best Street that property was subject to a mortgage granted by the plaintiff.

  

   47. In December 1977, after the successful
sale of the Best Street property
and the purchase, renovation and subsequent sale of a property at Alsace
Street, East Brunswick,
the parties purchased, in their joint names for the
first time, a property at Prospect Hill Road, Box Hill. The sale of the Best
Street property and the Alsace Street property resulted in substantial capital
gains. The defendant submitted that these gains were
largely attributable to
the work performed by him on the properties, including for example an
extension to Alsace Street. It is not
possible, primarily because of the
effluxion of time, to determine whether and to what extent this is true. That
is, it is not possible,
on the evidence before me to determine whether the
capital gain was due to the value of the renovations or market forces, or a
combination
of both. Suffice it to say that in the long run it becomes largely
irrelevant.

  

   48. The Prospect Hill Road property was purchased
using the proceeds of
sale from Alsace Street and a loan from the plaintiff's mother. The amount of
the loan was alleged to have
been $10,000 by the plaintiff and $6,000 by the
defendant. Again, these differences do not really affect the end result. The
plaintiff's
role in the renovation of this property was more limited than
usual because of her pregnancy with Sarah and, as a result of a previous
miscarriage, she was careful to limit her physical activities. The sale of
this property in 1980 for $112,000 resulted in net equity
to the parties of
approximately $50,000. These type of property dealings continued with the
parties' move to the Gippsland area of
Victoria in 1981.

  

   49. The parties lived in the Gippsland area until December 1985. During
that time they built a house known
as "Heron Hill" and undertook substantial
improvements to the property, including the construction of roads, dams,
fencing and the
installation of watering systems. Again, the extent of each
party's involvement in the works was disputed. For example, the plaintiff
alleged that she constructed a two acre garden and that the house and garden
were profiled in "Home Beautiful" magazine; the defendant
says the garden was
only half an acre and was constructed almost entirely by him.

  

   50. The plaintiff continued to teach. The
defendant was also in receipt of
income. During this period he commenced tertiary study. These studies were
subsequently completed
after the parties move to Armidale, New South Wales in
1986.

  

   51. In Armidale, again, a number of properties were purchased,
renovated or
refurbished and sold for a capital gain. The parties disputed each other's
roles in those activities.

  

   52. After
moving to Armidale the plaintiff commenced full time employment
as a teacher at the University of New England.

  

   53. In 1988
the parties purchased the "hobby farm" known as "Tywardreath"
for $175,000. For the next few years the parties continued to purchase
and
renovate or improve by construction properties in the Armidale region while
living at "Tywardreath". They also commenced a partnership
business of primary
production at "Tywardreath".

  

   54. In 1990 the plaintiff studied full time to upgrade her Bachelor degree
to an Honours degree. The defendant commenced work on a PhD at the University
of New England in 1991 as a scholarship holder from
the Australian Wool
Corporation.

  

   55. In 1993 the parties moved to Canberra. In Canberra the plaintiff
obtained employment
as a teacher and the defendant obtained employment with
the Australian Public Service on 1 December 1993.

  

   56. In September
1994 the parties purchased the property at 50 Curlewis
Crescent, Garran in the ACT for $215,000. The purchase price comprised
$150,000
from Advance Bank secured by first registered mortgage and $65,000
from the sale of a property at Napier Court, Armidale. The stamp
duty and
other costs of purchase totalling approximately $6,500 also came from the
proceeds of the Napier Court sale.

  

   57.
Work was carried out on the Garran property, costing approximately
$16,400. This work included construction of a pergola, design
and construction
of a single brick garage and modification to the bathroom and laundry.

  

   58. When the parties separated in
November 1995 they were the registered
proprietors as joint tenants of the property "Tywardreath" at Armidale and the
house property
at 50 Curlewis Crescent, Garran, Canberra. Their joint equity
in those properties represented the culmination of a joint enterprise
carried
on by them since 1975 when they first undertook the renovation of the property
at Best Street, Fitzroy. Whether the property
which they set about to improve
and sell was the house in which they were residing, or a property purchased as
a speculative venture,
the creation of wealth in this manner was carried on
jointly by the parties. The expectations of both parties, I find, was that
they
would benefit equally from the gains made from the various ventures.

  

   59. Throughout the whole of the domestic relationship
the parties operated
a joint bank account. They undertook joint liabilities in their borrowings
from banks. Their earnings and other
sources of income were paid into the
joint bank account. Their domestic and business outgoings were paid out of
that account.

 


   The property of the parties

   60. In addition to the two pieces of real property, each of the parties
ended up with some of
the house contents and a motor vehicle. The evidence as
to the value of these items is unsatisfactory. It was agreed during the trial
to value the house contents each received at $6,000. The motor vehicles do not
form part of the household contents. The defendant
contends that the
plaintiff's motor vehicle (a 1985 Holden Camira) should be valued at $6,000
and that the value of his 1978 Datsun
be taken as $500. The plaintiff places a
value of $1,200 on the Camira. There is no evidence as to the condition of
these vehicles
and no valuation material has been tendered in evidence which
fixes the value or enables some reasoned basis of valuation to be undertaken,
eg Glasses' Guide to used car values. Without proper valuation evidence, the
values claimed may indeed be arbitrary. I propose therefore
to make an
allowance of $500 for a motor vehicle as part of the defendant's resources and
$1,200 in respect of the plaintiff's resources,
there being no basis to depart
from what each admits is available to him or her.

  

   61. At the time of separation the parties
jointly owned livestock on the
Armidale property of an agreed value of $2,450.

  

   62. The defendant alleges that he was left
with "matrimonial debts" of
$5,000. However, the only debt which has been identified is a Bankcard debt of
$3,000. He also alleges
that the plaintiff took $1,400 from their joint
account. Although the plaintiff admitted that she took some money from the
account
to live on, she said she could not recall the exact sum. There is no
clear evidence of what joint debts were paid by the defendant
or what the
overall effect of the dealings on the joint account was after the parties
separated.

  

   63. The parties had originally
agreed that the value of Tywardreath was
$257,500. At trial, the plaintiff alleged that there were buyers available to
purchase the
property at or about $300,000 and that the defendant was denying
access to the property in order to prevent an inspection and sale
at that
price. On the trial I heard valuation evidence and at the conclusion of the
evidence the defendant gave an undertaking to
allow access to prospective
purchasers to attempt to procure a sale at the higher figure. No sale resulted
and the evidence of the
valuer, Mr Martyn, supports the originally agreed
value.

  

   64. The Garran property had, at trial, an agreed value of $190,000
and it
was subject to a mortgage in favour of Advance Bank at that time of $149,000.

  

   65. In summary the parties' property
at trial was as follows :-

  

   Plaintiff Amount

   Half interest in Armidale $128,750

   Half interest in Garran $95,000


  (less half mortgage) ($74,500) $ 20,500

   Household goods $ 6,000

   Half interest in stock $ 1,225

   Total $156,475

  

   Defendant

  

   Half interest in Armidale $128,750

   Half interest in Garran $95,000

   (less half mortgage) ($74,500) $
20,500

   Household Goods $ 6,000

   Half interest in stock $ 1,225

   Total $156,475

  

   The contributions made for the purposes
of s 15(1)(b) and s 15(1)(c) of the
Act

   66. The evidence as to financial contributions did not support the
contentions made by
the parties as to their respective contributions.

  

   67. In paragraph 26 of his defence, the defendant alleged :-

  

  


  "26. During the relationship the defendant earned substantially more than
the plaintiff for 16 of the 20 years of the relationship
and contributed in
excess of 70% of wages and earnings by the parties during the relationship as
well as being responsible for the
profits obtained as a result of property
development, building and renovation work."

   68. In paragraph 13 of his affidavit filed
15 July 1997, the defendant said
:-

  

  

   "13. From the records kept during the period of cohabitation, the total
income earned
by myself was two hundred and fifty nine thousand one hundred
and forty one dollars ($259,141.00) whilst that of the Plaintiff was
two
hundred and seven thousand four hundred and seventy eight dollars
($207,478.00)."

   69. During submissions, the following exchange
took place in relation to
these global figures :-

  

  

   "HIS HONOUR: Well, where do you say I should get the evidence - - -
MS
HANNA: Your Honour will see in the defendant's affidavit he in fact sets out -
if my memory serves me correctly - - - MR BREWSTER:
Paragraph 13 on page 15, I
think. MS HANNA: Yes, thank you to my friend, your Honour. That seems to be
correct. HIS HONOUR: There
is no break up in relation to that: is that right?
MS HANNA: No, there is no break up, your Honour, but I think all of the
financial
documents have in fact been tendered in relation to the respective
incomes. HIS HONOUR: So, just so I understand it, if I go and
open up that box
that was tendered I will find documents that I can sort of ascertain the
incomes for the period of the relationship
and that will come to 259,141? MS
HANNA: That is as I understand it, your Honour. HIS HONOUR: All right. Thank
you. MS HANNA: And,
your Honour, I think there are tax returns which were a
separate exhibit and then the box of documents. It may well be, your Honour,
that they are in the one box. HIS HONOUR: Thank you."

   70. The evidence contained in the taxation records tendered by the parties
as exhibit 2 and exhibit 16 is incomplete as to the plaintiff's income in the
years 1978 - 1979, 1979 - 1980, 1980 - 1981, 1988 -
1989. There is no taxation
record of the defendant for the years 1974 - 1975 or for the years 1989 - 1990
and 1994 - 1995.

  


  71. Upon analysis, the evidence reveals the following as to the receipt of
income by each of the parties :-

  
TABLE

  

   Plaintiff
  

   Defendant
  

   Year Ended

   30 June
   Gross Income

   $
   Taxable Income

   $
   Gross Income

   $
   Taxable Income

   $
   1975
   5,458
   3,611
   No record
   No record
   1976
   11,041
   9,847
   2,043
   2,030
   1977
   13,057
   12,606
   4,293
   4,293
   1978
   9,338
   9,000
   5,427
   5,418
   1979
   3,477
   3,423
   5,221
   5,221
   1980
   No record
 
 No record
   3,162
   3,162
   1981
   No record
   No record
   5,862
   5,862
   1982
   No record
   No record
   5,083
   5,083
   1983
   11,888
   11,320
   17,143
   11,220
   1984
   7,397
   6,801
   21,502
   13,718
   1985
   14,115
   13,521
   12,840
   10,005
   1986
   6,182
   4,955
   2,265
   2,265
   1987
   17,192
   15,218
   3,243
   2,923
   1988
   6,029
   3,803
  
2,772
   2,472
   1989
   No record
   No record
   0
   -300 [loss]
   1990
   No record
   3,464
   No record
   No record
   1991
   13,607
   0
   13,637
   5,250
   1992
   25,979
   0
   4,403
   3,288
   1993
   17,834
   0
   3,315
   2,193
   1994
   17,267
   16,227
   20,905
   12,070
   1995
   21,911
   19,684
   No record
   No record
  

   TOTAL
  

   $201,772
  

   $133,480
  

   $133,116
  

   $96,473
  

   72. The figures in the documents tendered do not add up to the amounts
alleged by the defendant.
It is apparent that in 1990 or 1991 the defendant
received a bursary from the Australian Wool Corporation worth approximately
$23,000
per year. This does not appear in the financial records tendered. A
large component of the 1991 taxable income is the payment of
approximately
$10,000 under the Prescribed Payments Scheme. The documentation does not
reveal the gross income or taxable income
of the defendant for the financial
year ended 30 June 1995. However the plaintiff, in a table completed by her
legal advisers and
annexed to her affidavit of 18 July 1997, concedes gross
income to the defendant for the 1995 tax year of $41,964.

  

   73. What
the material discloses is that by the time the Napier Court,
Armidale property was sold, the parties' substantial assets, "Tywardreath"
and
their equity in the proceeds of sale of Napier Court, had been acquired. As I
have already found, these sale proceeds were used
in the purchase of the
Garran property. There is no evidence of the acquisition of further
substantial property between the acquisition
of the house property in Curlewis
Street, Garran and separation in November 1995. Consequently, there is no
evidence that the respective
incomes of the parties, after 30 June 1994,
played any part in the acquisition of the property of either party. Rather,
the evidence
is that the normal periodic repayments of the mortgage to Advance
Bank came from the parties' joint bank account into which each
paid his or her
respective wage. There is no evidence as to the source of the monies spent on
the improvements of the Garran property.
As both parties were gainfully
employed, if the money came from other than their joint savings or from a
joint loan, I would infer
that it came from their joint earnings. Ultimately,
I am satisfied that the costs of the improvements to the Garran property came
from the joint financial resources of the plaintiff and the defendant.

  

   74. What is also apparent from the figures is that
the gross earnings of
the plaintiff to 30 June 1994, minus the four years where no records are
available, in the sum of $179,861
compares favourably with gross receipts of
the defendant of $133,116, or some higher figure when the Australian Wool
Corporation
bursary is taken into account. In the years 1979, 1981, 1982, 1987
and 1988 the defendant's sole or principal source of income was
unemployment
benefit or Austudy allowance. The only periods when he earned significant
income were in the first two years of the
relationship, later in 1983 to 1985
when employed by Siemans Ltd, next in 1991 to 1993 when in receipt of the
bursary and finally
in the period from 1 December 1993 when he became a
Commonwealth public servant. From the tax year 1983 until 1988 the defendant
carried on the business of primary production in a way that generated tax
losses but no taxable income.

  

   75. The records also
show that in 1991 the parties carried on in
partnership a business of primary production and a further property business.
The first
business was a sheep and wool business which made an operating loss
in 1991 of $1,505, which loss was borne equally. The property
business was the
construction of a rental property at 3 Napier Court, Armidale. That property
was acquired and constructed with borrowed
funds. With substantial interest
payments being incurred, the business sustained a loss of $27,118. That loss
was borne as to $21,438
by the plaintiff and as to $6,694 by the defendant.
Similarly, in 1992 the primary production business incurred a loss of $5,740
which was borne by the plaintiff as to $5,683 and the defendant as to $57 and
the loss on the property business of $11,840 was as
to $11,722 borne by the
plaintiff and $118 by the defendant. In the 1993 tax year the loss in the
primary production business of
$11,996 was borne as to $11,876 by the
plaintiff and as to $120 by the defendant with the real property losses of
$6,207 being borne
as to $6,145 by the plaintiff and as to $68 by the
defendant.

  

   76. The property at Napier Court was declared in the 1994 partnership
tax
return to have been disposed of on 1 January 1994, with a nil capital gains
tax result, for $185,000. The loss on the rental
business of that property for
1994 was shown as $4,928, which was borne as to $783 by the plaintiff and as
to $4,145 by the defendant.
Similarly, the loss on the primary production
business of $5,332 in the 1994 financial year was borne as to $853 by the
plaintiff
and as to $4,479 by the defendant.

  

   77. The income of the plaintiff for the years 1991, 1992 and 1993 has
substantially borne
the cost of maintaining and servicing the debt of the
parties on the acquisition of Napier Court and the cash flows from the rental
of that property and the wool and sheep partnership carried on at
"Tywardreath". The interest paid on the loan alone was $24,969
in 1991,
$13,968 in 1992 and $10,429 in 1993. The losses have resulted in substantial
tax deductions which in turn have seen prepaid
tax credits return to the
family funds as tax refunds. I infer that the income of the defendant in the
relevant years and the bursary
payments were the source for the family's
ordinary living expenses. Although the plaintiff's income was used to make the
payments
of interest and other outgoings, it was not the intention of the
parties that the underlying assets of "Tywardreath" and Napier Court
were to
be held other than in equal shares.

  

   78. There is little contemporaneous documentation to determine the source
of
the funds used to acquire and renovate or to build the various properties
bought and sold by the parties. I am satisfied that the
purchases were not all
made from capital gains on sale nor were the renovations all carried out from
capital gains or from cash flow.
In the material tendered there is an offer
from the ANZ Bank on 24 November 1980 for a bridging loan of $15,000 to be
repaid in full
by 14 January 1981. That offer was to the parties jointly to be
secured by a second registered mortgage over the property at 139
Prospect Hill
Road, Box Hill, Victoria. Similarly, there is a notification to the parties by
the ANZ Bank dated 19 May 1981 of a
joint personal loan of $6,300 which was
repayable by monthly instalments of principal and interest from 19 June 1981
until 19 May
1986. There is also a notification dated 30 June 1981 of a
further joint personal loan of $6,000 which was repayable by monthly
instalments
of principal and interest from 30 July 1981 until 30 June 1986.

  

   79. I am satisfied that the parties used borrowed funds and
available
capital profits to purchase, renovate or build the various house properties
they owned from time to time and made repayments
of principal and interest
where necessary from the joint cash resources of the parties or upon resale of
the properties. I am also
satisfied that some of the costs of works carried
out by them were paid directly from their joint sources of income from time to
time. I am satisfied that periodic payments were made from the joint bank
account of the parties and that no particular source of
funds from either
party was appropriated to the payment. I therefore treat those contributions
as equal contributions to the acquisition
of the property.

  

   80. The parties cannot agree whether the equity of the plaintiff in the
Best Street house which she brought
to the relationship was $5,000 or $6,000.
At this distance in time it is impossible to rationally accept one rather than
the other.
Each is an estimate of the parties because the house was not
realised in the same condition as it was when the relationship began
in 1975.
For present purposes, it is sufficient to hold that the plaintiff brought into
the relationship the house property which
over time has become part of the
mass of joint property they have acquired. Likewise, the significance of the
original contribution
of the house property is diminished by the substantial
activities of the parties over not less than eighteen years. Those activities
have brought in substantial sums from other sources to ultimately produce the
joint assets which were held on the termination of
the domestic relationship.

  

   81. The plaintiff originally swore that she brought to the relationship a
property settlement
from a previous marriage and $28,000 worth of shares in
Broken Hill Proprietary Ltd ("BHP"). The defendant denies that this occurred
and stated in evidence that had such been the case he would have the documents
evidencing the receipt of the money and the sale of
the shares. In her
evidence, the plaintiff subsequently swore that she had purchased the BHP
shares with her property settlement.
That property settlement, she claimed,
was received by her shortly after the relationship began.

  

   82. There is no documentary
material produced which supports either the
payment of money by way of property settlement in the 1970's to the plaintiff
nor the
acquisition of BHP shares by her at that time. The parties did in fact
acquire BHP shares in joint names as follows :-

  
TABLE


   D ate
   Quantity
   Price
   Brokerage
   Stamp Duty
   Total Paid
  

   5.3.82
   $

   2,500
   $

   18,750
   $

   386.25
   $

   56.40
   $

   19,192.65
   8.3.83
   500
   3,350
   88.75
   10.20
   3,448.95
   19.5.83
   300
   2,532
   68.30
  
7.80
   2,608.10
   27.3.84
   200
   2,690
   72.25
   8.10
   2,770.35
   28.3.94
   200
   2,740
   73.50
   8.40
   2,821.90
  
   $3,700
   $30,062
   $689.05
   $90.90
   $30,841.50
  

   83. The parties jointly sold BHP shares as follows :-

  
TABLE


   D ate
   Quantity
   Price
   Brokerage
   Stamp Duty
   Total Paid
  

   1.6.82
   $

   2,500
   $

   19,404
   $

   396.06
   $

   58.50
   $

   18,949.44
   12.3.85
   600
   3,300
   82.50
   9.90
   3,207.40
   12.4.85
   1,210
   7,935.80
   183.69
   24.00
   7.728.11
  
   $4,310
   $30,639.80
   $662.79
   $92.40
   29,884.95
  

   84. On 8 February 1984, AC Goode & Co,
Stockbrokers, sold on behalf of
the plaintiff alone five hundred shares in BHP, the net proceeds of which were
$6,637.80.

  

 
 85. The plaintiff disavowed these shares as being acquired with the
proceeds of her property settlement. She gave the following
evidence as to
share trading by the parties :-

  

  

   "Ms Ferris, were those shares that are evidenced in those documents between
1983 and 1985 purchased during the course of the relationship with the
defendant?---These were purchased during the time of the relationship
with the
defendant but they are nt [sic] those I refer to in the affidavit. Thank you.
Do you agree with me that they were purchased
with funds which had been from
both you and the defendant, being either income or moneys gained from sale of
properties?---I would
dispute that. I see?---It's a difficult one to - - -
Well, where do you say those moneys came from, Ms Ferris?---These? Yes?---I
haven't added up the amounts. Well, do you recall anything about those
shares?---I do recall there were a number of shares including
these BHP. There
were a number of speculative shares such as Western Mining, CSR, Hi-Tech,
various other things. I was not as interested
in these matters as the
defendant. I didn't have the records. He had all the filing cabinet records so
I didn't recall - - - So,
who purchased them?---He instructed me as to which
name they were to go in. These appear to be in my name. I accept that. But, Ms
Ferris, are you suggesting that the defendant was engaged in speculating on
the stock market in 1983 to 1985?---With money I supplied,
yes. I see, but you
haven't put this anywhere in your affidavit?---I didn't recall the details. To
me they were insignificant amounts.
I didn't recall the details. And you would
say that the defendant, would you, was the person who was equipped and you
took his advice
in relation to how you should invest moneys?---I would think
neither of us was equipped in financial terms at all. He was more interested
in this than I was and kept the records. So, can you recall, now, how much
money was in fact invested in shares during the 80s or
90s, for that
matter?---No, I can recall Hi-Tech shares reaching at one point something in
the order of $100,000 and wanting to sell
them and the defendant flatly
refusing and eventually they disappeared off the market, Hi-Tech simply
vanished. I do recall that
because that was the largest lot. The details - - -
But that was a very significant factor, wasn't it, Ms Ferris, that we had
$100,000,
what, in 1983?---Well, on paper, theoretically, at one point, I
would have had $100,000, had I sold them but because on advice I
didn't sell
them I ended up with nothing. And so you were relying on the defendant for his
advice in relation to when you should
sell shares?---I admit I was foolish
but, yes. I see. But you can't recall how much money you expended in buying
and selling shares?---In
that period of time, no. Well, in the totality of the
relationship which is some 20 years, how much had you invested, made or lost
in relation to shares?---This would be an estimate and I wouldn't like to be
held to this but something in the order of $30,000 may
have been invested in
the share market over that period of time. It didn't span the whole
relationship. There was one particular
period when the defendant showed
interest in the stock market. And so I take it that this 30,000 came directly,
you would say, from
your income?---I don't think it came as a lump sum. It
would be hard to answer that. Well, I take it that some of the shares made
money, is that correct?---Some of them would have, yes."

   86. I do not accept that the purchase of BHP shares in 1982, 1983 and
1984
in joint names was solely funded by the plaintiff. I am satisfied that the
share trading was undertaken with joint funds with
a view to enhancing the
joint wealth of the parties. The results of that trading are reflected in the
totality of the joint assets.
Having regard to the plaintiff's evidence,
nothing can be drawn from the fact that five hundred shares were sold in 1984
to her sole
account.

  

   87. Absent some corroboration as to the sum of $28,000 being brought to the
relationship and invested in BHP shares,
I am not prepared to find that such
was the case.

  

   88. Having formed the view that the substantial asset acquisitions had
occurred by September 1994, the access of the defendant to substantial income
in 1994 and 1995, a time when the plaintiff was also
in receipt of substantial
income, does not lead to the conclusion that the defendant made any greater
financial contribution to the
acquisition of the joint property than did the
plaintiff. Nor can it be said that since separation he has made any greater
contribution
to reduction of the mortgage debt to Advance Bank. The income
from the rental of "Tywardreath" to which they were jointly entitled
has been
used for this purpose.

  

   89. The evidence supports the conclusion that the plaintiff spent a
considerable period of
time with the upbringing and care of the daughters.
Likewise, it is clear that the defendant took a great interest in the well
being
and upbringing of the girls, including their education and artistic
interests. As between the parties during the relationship, the
additional time
spent by the plaintiff with the children freed the defendant to engage in
activities to the mutual benefit of the
parties.

  

   90. The defendant did not cavil with the fact that the plaintiff was "very
involved" with the children and the defendant
did not suggest that the
plaintiff did not "play the homemaker role". The defendant's case was that
parenting tasks often fell to
the parent who was not "away from home". It is
clear that the plaintiff did play a major role in the care for the children
and that
the defendant did, in addition, contribute to those tasks.

  

   91. The defendant alleged that since separation the plaintiff
has not
continued to provide support for the children. By the time of separation the
girls were aged 22 and 17. In my view, this
fact does not detract from the
value of her overall contributions. Her failure to contribute to the financial
maintenance of the
children since separation, I find, was caused by a lack of
funds with which to make a contribution rather than out of any desire
to
withhold financial assistance from them.

  

   92. The defendant also maintained he cared for the plaintiff during periods
of
convalescence. This allegation was not disputed.

  

   93. I find that, on balance, the plaintiff had over the entire lengthy
period
of the relationship made contributions to the welfare of the family and
as homemaker to a greater degree than the defendant. However,
the defendant's
contributions are not to be ignored. This was not a situation of one partner
assuming the homemaker role while the
other assumed that of the financial
provider. In this case, both parties made themselves available to the
children, both parties
were employed, and both parties worked on the various
properties. In addition, the defendant assumed a role as "father figure" for
Penelope, the plaintiff's child of a previous relationship.

  

   The matters referred to in s 19(2) of the Act :-

  

   The
income, property and financial resources of the plaintiff

   94. The plaintiff had, at trial, her interest in the Garran property,
the
Armidale property and the personal property she removed when the relationship
ended. Additionally, she has present entitlements
in two superannuation
schemes which were worth at trial approximately $4,400. Her current weekly
income at trial was $272 and she
estimated her weekly expenses at $377. Her
income was in the form of a Department of Social Security pension, widow's
allowance and
rent subsidy totalling $197. The balance was made up with
earnings from part time work when available. The plaintiff owed $27,500
in
legal fees to trial, $20,000 to her mother by way of repayment of a loan she
used as a deposit on the purchase of a house property
at Neerim South,
Victoria and $2,233 outstanding as HECS debt.

  

   95. Since the trial the plaintiff's father has died. She is
a beneficiary
under his Will and I allowed evidence by affidavit to be provided as to her
entitlement, if any, under the Will and
the value of the estate.

  

   96. There is a dispute as to the value of books available to be distributed
by the executor at his
discretion. There is nothing in the material to support
the assertions of the defendant that the books which are now available are
of
any great worth.

  

   97. The executor of the estate is the plaintiff's brother, Ian Ferris. He
has sworn in the Supreme Court
of Victoria that the value of the real estate
would not exceed $240,000 and the personal estate was $8,253.22. There were
liabilities
of $3,362.37.

  

   98. Under the Will of the deceased dated 24 May 1989 the deceased
bequeathed his library to Ian Ferris and
the plaintiff. The remainder of the
estate, after payment of all debts, funeral and testamentary expenses and
duties payable, is
divisible equally between the deceased's widow, his
executor Ian Ferris, and, the plaintiff.

  

   99. At this time the estate
has not been fully administrated. The plaintiff
therefore, has no right in respect of the corpus of the estate. Her only right
is
to the due administration of the estate: Official Receiver v Schultz [1990] HCA 45;  (1990)
170 CLR 306 at 313 - 314; Livingston v Commissioner for Stamp Duties [1960] HCA 94;  (1960)
107 CLR 411; (1964) 112 CLR 12 (PC).

  

   100. Since swearing the affidavit as to value in the Supreme Court of
Victoria,
one piece of real estate has been sold for $65,000. The other piece
of real estate requires work to be undertaken on it, including
the
construction of a new entrance from the roadway. It is envisaged by the
selling agent that the second property will achieve $150,000
gross. After
deducting the cost of the entrance and the agent's commission on sale,
estimated at $3,000 and $7,000 respectively,
the net proceeds of both
properties are now estimated at $205,000. To this may be added the value of
the personalty. The material
does not disclose what the funeral and
testamentary and other expenses are or will be upon due administration of the
estate.

  

   101. The defendant's solicitors in a letter to the plaintiff's solicitors
of 22 October 1997, refer to the late Mr Ferris leaving
a widow to whom he had
been married for seven to eight years before his death. That would explain the
advice of the executor to the
plaintiff that the widow is considering bringing
a testator's family maintenance ("TFM") claim against the estate. Contrary to
the
submissions of the defendant, a successful claim by the widow has the
potential to render the plaintiff's chose in action to the
administration of
the estate and any receipt from the residuary estate largely worthless,
depending upon the nature of the relief
granted and upon which part of the
estate the burden falls: Schultz at p 316.

  

   102. In the present case there must be brought
to account upon any
consideration of the plaintiff's financial resources, the receipt at a future
time of up to $65,000 as her share
of the residuary estate. However, the worth
of that prospect has to be discounted by the threat of a successful TFM claim
being advanced
by the plaintiff's stepmother and any delay in the
administration of the estate.

  

   103. The plaintiff, in my view, has a limited
financial resource in her
future earning capacity. The defendant contended that the plaintiff had ample
work in Canberra at the termination
of the relationship and that there was no
reason for her to leave the ACT and her gainful employment. He further
contends that she
is capable of being gainfully employed if she so chooses.

  

   104. The contentions of the defendant are without foundation. I
accept that
her employer, the Canberra Institute of Technology, was unable to offer her
more than six hours part-time teaching per
week. I accept that such a workload
would have provided insufficient funds for the plaintiff to support herself.
Further, the plaintiff
has applied unsuccessfully for numerous teaching
positions for which she is qualified. The rejection letters which were
tendered
in evidence indicate that there is strong competition for teaching
positions in various Victorian schools. Although the letters do
not expressly
say so, it is evident that the plaintiff's age at fifty-six/fifty-seven, is
against her gaining any permanent long-term
appointment. Her position is only
going to be exacerbated as she grows older. The letters also shows that the
plaintiff has not limited
herself to teaching positions in her quest to obtain
gainful employment.

  

   The income, property and financial resources of
the defendant

   105. In addition to the property identified earlier in these reasons, the
defendant has superannuation with the
Public Sector Superannuation Scheme. The
value of his contributions to that scheme in May 1997 was $10,163. The
employer contributions,
and productivity benefits at that date were
$26,134.40. However, the employer contributions must be preserved until at
least age
55 when access to them may be obtained on retirement from the
workforce. The information supplied by Comsuper showed that on his
then salary
of $47,168 per annum, if he retired at age fifty-five, the defendant would be
entitled to a lump sum of $249,570, assuming
no increase in salary level. If
the defendant worked until age sixty-five, the lump sum payment on his then
current salary would
be $377,344. These sums are convertible at the
defendant's option to a fully indexed pension.

  

   106. By trial, the defendant's
annual salary as a public servant was
approximately $54,964. This alters the projected superannuation to $290,820 at
an age fifty-five
retirement and $439,712 at age sixty-five. Clearly, the most
valuable financial resources available to the defendant are his earning
capacity, at age forty, and the ultimate value of his superannuation upon
retirement. As appears from exhibit 7, the defendant is
paying the maximum
contribution of ten percent allowable under the PPS Scheme.

  

   The physical and mental capacity of each party
for appropriate gainful
employment

   107. There is no impediment under this head to each party engaging in
appropriate gainful
employment.

  

   The financial needs and obligations of each party

   108. The plaintiff owes money to her mother and for her
legal expenses.
These amount to not less than $47,500. She has also contracted to buy a house
property at Neerim South to give her
a permanent home. Settlement of that
property was deferred. She is obliged to find $142,500 to complete.

  

   109. The plaintiff
is jointly liable with the defendant for the mortgage
debt secured against the Garran property. Her weekly expenses estimated at
$377 exceed her income by about $100 per week. There is nothing in the
evidence to suggest that her needs will decrease or that her
income will
increase other than by any receipt from her father's estate being engaged in a
way to produce income. Her share in the
income produced by the letting of the
Armidale property will cease upon its sale or other disposition.

  

   110. The defendant
discloses income of $1,057 and outgoings of $1,482 per
week. Included in the outgoings is $106 for his superannuation contribution,
$270 for repayment to the Advance Bank under the mortgage over the Garran
property and $80 loan repayments.

  

   111. In addition
to the mortgage debt to the Advance Bank, the defendant at
trial owed the ANZ Bank $3,000 and the Commonwealth Bank $20,000. He also
had
unpaid legal fees of $8,000 and contingent or deferred liabilities of $1,500.

  

   The responsibilities of either party to
support any other person

   112. The final area under s 19(2) that I was asked to consider related to
what the defendant saw as
his responsibility to continue to provide financial
assistance to Sarah (s 19(2)(d)). Sarah was eighteen years of age at trial and
the defendant swore that he would be providing assistance to her of at least
$50,000 over a number of years to allow her to complete
music studies in the
United States.

  

   113. The support of a child, in my view, that has attained majority does
still fall within
s 19(2)(d) where a demonstrable reason for providing support
is shown.

  

   114. The plaintiff has no objection to provision being
made for Sarah's
studies in the United States. Her problem is that she does not have the means
to pay or contribute to it.

  


  Such other matters, if any, as the Court considers relevant

   115. The defendant has had the benefit of the rental of $200 per
week from
the Armidale property. That money, the defendant swears, was used to meet the
expenses of that property, to meet the expenses
and mortgage repayments in
respect of the Garran property with the balance of the funds being used to
support Sarah. Those funds,
it was submitted by the defendant, were applied
for the joint benefit of the parties and the payments are reflected in the
value
of the properties and the parties' equity in them. It was submitted on
behalf of the plaintiff that the defendant has had the additional
benefit of
the use and occupation of the Garran premises whereas the plaintiff has been
forced to pay rent for her accommodation.
In these circumstances, it was
submitted, the defendant ought to be obliged to give credit for an occupation
rent for the plaintiff's
joint interest in the home: Bernard v Josephs [1982]
1 Ch 391 at 401, 405, 409; Calverley v Green at 253. I agree.

  

   116. There
is no evidence as to what the house at Garran would achieve by
way of rental on the open market. The plaintiff has incurred rent
of $90 per
week in rural Victoria. An occupation rent of $50 for her interest in the
Garran house seems reasonable as I am satisfied
from my general experience of
the rental market in Canberra, that houses in Garran in reasonable condition
ought to achieve a market
rental of not less than $100 per week. Accordingly,
an allowance of not less than $5,000 should be made in the plaintiff's favour
for the two years since 4 November 1995.

  

   Should any relief be granted?

   117. The plaintiff needs access to her interest
in the joint property for
her present and future financial needs. Unless the defendant buys out the
interests of the plaintiff, the
proper course is to order sale of the property
and distribution of the net proceeds between the parties.

  

   118. The chattels
taken or retained by each party are agreed at $6,000 and
each should retain that property for his or her respective benefit.

  

   119. If my consideration were limited to the matters in s 15(1)(a), s
15(1)(b) and s 15(1)(c), I would conclude that the contributions
of the
plaintiff were moderately greater than that of the defendant. She brought the
original contribution of the Best Street property
and the significant
financial resource which she had as a qualified teacher. Those contributions
were significant during the early
years of the relationship. The financial
resources also allowed the defendant to resume tertiary studies in the
mid-1980's, although
their significance diminished when he was granted the
Australian Wool Corporation bursary. Her non-financial contributions as
homemaker
were higher as I have held, but not greatly so, from those of the
defendant. These were the only factors to distinguish her financial
and
non-financial contributions from those of the defendant, which were otherwise
equal. The overall contributions of the plaintiff
justify some adjustment of
the parties' interest in the joint property being made in her favour.

  

   120. The factors of significance
in the present case are those raised by
consideration of the s 19(2) matters. This case is unusual in that the present
earning capacity
of the defendant was finally exploited over the last years of
the relationship and the grant of the bursary was the factor which
allowed it
to happen. Similarly, the realisation of the potential of that capacity and
the putting together of a substantial future
financial resource in the form of
superannuation commenced on 1 December 1993 and continued thereafter. The
defendant therefore took
from the relationship the most valuable asset which a
party can take out of a relationship, a substantial reliable income-earning
capacity: Best and Best (1993) FLC 92-418 at 80,295; Clauson and Clauson at
81,911. Because of the defendant's age, that earning
capacity has twenty to
twenty-five years to be exploited. The plaintiff, on the other hand, has
substantially used up her earning
capacity during the relationship and because
of age and economic circumstances took from the relationship little in terms
of earning
capacity.

  

   121. It is the present lack of earning capacity which establishes a real
impact upon her in respect future economic
need. Absent worthwhile employment,
her income will more likely than not be from or supplemented by social
security payments. Her
present superannuation entitlement of about $4,000 is
not going to increase substantially or having any long term effect on her
income
level. If she receives at some time in the future a one-third interest
in her father's estate, this will provide some funds to generate
an income
provided that the money is not substantially used to discharge debts and legal
fees which she has incurred in these proceedings
and borrowings from her
mother. The plaintiff's lack of any real likelihood of obtaining sustained
remunerative employment and her
future costs of living will impact seriously
on the plaintiff. It is a factor which justifies a further adjustment to the
property
interests of the parties, unless outweighed by the defendant's
relevant circumstances.

  

   122. The items which will diminish
the short term value of the defendant's
earnings are his legal fees, his personal loans and the cost of support of
Sarah during the
course of her studies. Although the impact of these matters
is not insubstantial, they are in the context of the defendant's future,
short
term rather than ongoing, substantial commitments. Their impact is further
diminished if the defendant has resort to his interests
in the joint property
to discharge them or reduces, in the short term, the level of his savings by
way of his contributions to superannuation.
That the defendant has claims in
the short term on his income and assets does not, in my view, outweigh the
adverse impact of the
relevant personal circumstances, both present and
future, of the plaintiff and of the justice and equity of making an adjustment
to the property interests to take account of them.

  

   123. The joint property is valued at :-

  

   "Tywardreath" $257,500

   The value of the livestock at Armidale $2,450

   The equity in the Garran property $41,000

   $300,950

  

   124. Taking
into account all of the factors relevant under s 15(1) which I
have discussed in these reasons and giving an allowance for occupation
rent to
date and for a reasonable period into the future pending sale of the Garran
property or the acquisition by the defendant
of the plaintiff's interest in
it, I am of the view that it is just and equitable to adjust the parties'
interest in the joint property
to return to the plaintiff the sum of $190,000,
with the balance of value of the property being retained by the defendant.

  


  125. The defendant, during the trial, expressed a desire to retain the
property "Tywardreath" and in the form of orders proposed
by his counsel he
sought also to be given the opportunity to retain the Garran property. The
plaintiff's interests are best served
in making orders which lead to her
obtaining at an early date a money sum which severs her financial relationship
with the defendant.
The defendant is better placed to best bring the
properties to his advantage having regard to his personal circumstances. As he
will
bear the risk of any actual change in the value of the properties he
should also take the benefit of such movement, if any.

  

   126. The parties are to submit written submissions on the issue of costs
within twenty-one days.

  

   127. THE COURT ORDERS
THAT:

   1. The defendant pay or cause to be paid to the plaintiff within thirty
(30) days of the entry of these orders, the sum
of $190,000.

   2. Concurrently with and consequent upon the payment of the said sum of
$190,000 the plaintiff deliver to the defendant
all such documents and do all
such things as shall be necessary to transfer her interest in the property
situate at 50 Curlewis Crescent,
Garran, Canberra in the ACT and the property
known as "Tywardreath" Kelly's Plains Road, Armidale in the State of New South
Wales
together with all plant and equipment and livestock situate at the said
property.

   3. Upon the parties complying with orders 1
and 2 hereof, the defendant
shall indemnify and keep indemnified the plaintiff in respect of all claims,
suits or actions arising
out of her ownership of the said properties referred
to in order 2 hereof. Such indemnify to include but not be limited to the
monies
owing to the Advance Bank and secured by mortgage to the said bank.

   4. In the event that the defendant fails or neglects to pay
the money in
accordance with order 1 hereof, then the parties shall do all acts and things
and sign all deeds, documents and writings
necessary to cause the said
properties identified in order 2 to be sold by way of private treaty at a
price to be agreed to by the
parties in writing or failing such agreement then
by the president for the time being of the Real Estate Institute of the ACT.
That
the proceeds of any sale shall be distributed as follows :-

  

   (a) in payment out of the mortgage debt to the Advance Bank;

   (b) in payment out of legal costs and expenses of sale;

   (c) in payment out of all taxes, council rates outstanding;

   (d)
in payment to the plaintiff of $190,000;

   (e) in payment to the defendant the balance of the monies.

   5. The parties file and
serve within twenty-one days written submissions on
the issue of costs.

   6. Liberty to apply to each party on seven days notice
for the purpose of
working out and giving effect to these orders.

  

   AND THE COURT DECLARES THAT:

   7. At law and equity and
as between themselves, each party is the sole and
absolute owner of all items of personalty currently in his or her respective
possession,
such items being formerly joint personal property of the parties.