Byrne v Opuls [2002] ACTSC 78 (16 August 2002)

Last Updated: 20 August 2002

NATALIE-ANN BYRNE v BRONIE OPULS

[2002] ACTSC 78 (16 August 2002)

CATCHWORDS

DOMESTIC RELATIONSHIPS - application by female partner against male partner for adjustment of property rights - nature of relationship - whether necessary to prove a de facto marriage - contributions by each party to assets of parties - whether either party under obligation to contribute to maintenance of the other.

Domestic Relationships Act 1994

Ferraro v Ferraro (1993) FLC 92-335

Ferris v Winslade (1998) 22 Fam LR 725

Waters v Jurek (1995) FLC 82, 370

No. SC 585 of 2000

Judge: Miles CJ

Supreme Court of the ACT

Date: 16 August 2002

IN THE SUPREME COURT OF THE )

) No. SC 585 of 2000

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: NATALIE-ANN BYRNE

Plaintiff

AND: BRONIE OPULS

Defendant

ORDER

Judge: Miles CJ

Date: 16 August 2002

Place: Canberra

THE COURT ORDERS THAT:

1. The defendant's net monetary liability to the plaintiff be $78,901.

2. If necessary, there be written submissions within seven days on how that liability might be discharged.

3. The parties may file consent orders in the Registry.

4. Liberty to relist if consent orders not filed.

1. This is an application commenced by originating application filed on 7 September 2000 for an order for adjustment of property rights of the plaintiff and defendant under s 15 of the Domestic Relationships Act 1994 (the Act). There is no application for maintenance under s 19 of the Act.

2. A statement of claim was filed on 20 November 2000 and a defence filed on 13 December 2000. Evidence was given by way of affidavit by both parties and each was cross-examined.

3. The plaintiff alleges, not very helpfully, that they lived in a "de facto relationship" in the Australian Capital Territory from 1987 to 1999. The defendant says that they lived in a "de facto relationship" over a period commencing September 1989 until June 1999, with periods of separation from time to time.

4. The term "de facto relationship" does not appear in the Act. I think that it was used in the pleadings to mean something like "de facto marriage". Unfortunately, the Act does not define "de facto marriage" either, but fortunately it is not necessary to apply that widely abused term to the present case, since what the Act is about is the adjustment of property rights of parties to a domestic relationship. That term is defined in s 3 as follows:

"(1) ...

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

Other definitions within s 3 include the following:

"(2) For subsection (1), definition of domestic relationship -

(a) a personal relationship may exist between persons although they are not members of the same household; and

(b) a personal relationship shall not be taken to exist between persons only because one of them provides a service for the other -

(i) for fee or reward; or

(ii) on behalf of another person (including a government or body corporate); or

(iii) on behalf of an organisation the principal objects or purposes of which are charitable or benevolent.

(2) A reference in this Act to a party to a domestic relationship includes a reference to a person who has been a party to a domestic relationship that has ended.

(3) A reference in this Act to a child of the parties to a domestic relationship is as a reference to each of the following children:

(a) a child of whom the parties are the parents;

(b) a child of whom the parties are presumed, under the Artificial Conception Act 1985, to be the father and mother;

(c) a child adopted by both parties;

(d) a child for whom both parties accept responsibility for his or her long-term welfare."

5. Clearly, there was a relationship between the two parties in which each provided some personal and financial support of the other as well as support of a domestic nature. It was therefore a domestic relationship within the meaning of the Act. The precise quality of the support and its extent remains to be determined. It is not necessarily an easy task, although the facts are not very complicated.

FACTS

6. The plaintiff was born on 12 October 1968 and is now aged 33. The defendant was born on 23 November 1960 and is now aged 41. Neither has been married. The plaintiff came to live in Canberra for the first time in 1986 but stayed only six weeks and returned to Sydney. While in Canberra she became acquainted with the defendant and his family, but which came first is not clear. The acquaintance was renewed the following year and after that the couple met from time to time in Sydney or Canberra. The defendant's father invited the plaintiff to come to live in a house which he owned at Rodway Street, Yarralumla. She lived there rent free for six months and after that lived elsewhere with a friend for another six months. By that time the father had given the property to his three sons, including the defendant, as tenants in common. The interests were converted later to a joint tenancy. It appears that the father still had effective control despite the gift.

7. During 1988 the father also transferred to the sons a property at Weld Street, Yarralumla owned since 1959. The house, which he had built, is now the principal place of residence of the defendant's mother, Enid Opuls, and the defendant's brother, Peter.

8. The plaintiff said that she moved in with the defendant and his parents at Weld Street in September 1987. According to the defendant it was in early 1989. I think that the defendant's recollection is more likely to be correct, since it has been refreshed by his reference to documents such as the Certificate of Title for Weld Street and another property at Hampton Circuit, Yarralumla which was acquired by the defendant's father for the purpose of giving it to his sons. The transfer to the sons of Hampton Circuit was registered on 1 November 1989. At first the father let the property to third parties.

9. During the time they lived at Weld Street the plaintiff prepared meals for the defendant, and on about two occasions for the whole family. It does not appear that the household operated as a single entity, nor that the couple paid or were expected to pay the parents for board or lodging. Nevertheless, there appears to have been a cordial if not close relationship between the plaintiff and the defendant's parents.

10. Until August 1989 the relationship between the plaintiff and defendant had not, in my view, become a domestic relationship within the Act. After that it changed in its nature. The defendant and the plaintiff moved into the premises at Hampton Circuit and the relationship became a domestic relationship under the Act from that time onward. They lived in those premises until finally separating in 1999, according to the plaintiff in August, according to the defendant in September. Very little turns on the date of final separation.

11. It is common ground that the nature of the relationship by the time of the separation in late 1999 was a domestic one. However, the parties did not cohabit, or live together, continuously during the whole of the relationship. Without discussing the evidence I find that, despite the several breaks in cohabitation, there was a domestic relationship between the plaintiff and the defendant from a date between September 1987 and September 1989 until a date between August and September 1999. During that time there was a pattern of conduct in which each party provided personal and financial commitment and support of a domestic nature for the benefit of the other. For what it is worth, I do not find that the relationship amounted to a de facto marriage, since the commitment of each party to the other was not sufficiently dedicated or intended to be sufficiently long term.

12. An indication of the nature of the relationship may emerge from the chronology of cohabitation and living arrangements. The defendant was clearly close to his parents and two brothers. He was at all times in full time career employment as a gardener with that branch of the ACT Government responsible for parks and gardens and which was or is known as Cityscape. He appears to have led a settled lifestyle. The plaintiff, several years his junior, had no family in Canberra and became heavily dependant on friends for emotional and material support. She did not commence work after arriving in Canberra until 31 October 1988. That was with Telecom as a telephonist. The work did not suit her and she left a few months later. She took up studies in social welfare and teaching. She had casual work in the social welfare area from time to time. In 1990 she did casual work for the ACT Health Authority. She was a full-time student in October 1991 when she was the victim of a serious assault. That delayed the completion of her course of studies. In December 1993, when she appears to have been unemployed, she was injured in a motor vehicle collision. In June 1994 she was awarded criminal injuries compensation and after payment of legal fees and outstanding medical accounts received $14,204. In August 1996 she received damages of $32,796 for the injury in the motor vehicle collision, apparently after deduction of costs and outstanding or repayable medical and like expenses.

13. Until about May 1997 the plaintiff had done very little in the way of paid employment. By that time it appears that she had gained the qualifications and she began working as a casual nurse's assistant and nurse's aide. That continued until July 1998. In the meantime she gained a permanent position as a part-time nurse's assistant. That commenced on 16 July 1998 and continued until 22 June 1999.

14. The plaintiff gave birth to a child on 16 October 1999 and has not worked since then. The father pays maintenance for the child and the plaintiff receives a single mother's support benefit. The defendant, whilst interested in the welfare of the child, does not make any material contribution to her maintenance and welfare. There is no evidence that the consequence of any of this aspect of the case had any effect on the emotional or physical side of the relationship.

15. At various times during the relationship the plaintiff received unemployment benefits. Whether, in view of the relationship, she was entitled to such benefits is not for me to say. On any view, her financial contributions to the relationship were modest, although it is not suggested that in view of her equally modest income those contributions were unreasonable.

16. Little needs to be said about how the plaintiff disbursed the total sum of about $47,000 received between 1994 and 1996. Some of it went into furniture and household items. That does not appear to be of great significance for present purposes since the plaintiff has retained those items. She undoubtedly spent part of the proceeds on consumable items. She was a regular user of marijuana.

17. The living arrangements also say something about the nature of the relationship. When the plaintiff first moved into the Opuls house in Weld Street, she had her own room and brought her own furniture to put in it. Some months later, she moved the mattress from that room into the defendant's bedroom and slept on it, next to the defendant's single bed, until they moved to Hampton Circuit.

18. From time to time, there were intervals, ranging from two or three weeks to about two months duration, when the plaintiff did not stay with the defendant. The plaintiff said that they were "engaged twice". However, the evidence establishes only that they went once to the office of the Registrar of Births Deaths and Marriages in about 1994 and lodged a notice of intended marriage to take place four or five months later. There was no real explanation of why they did this or why they did not get married. The plaintiff said that she regarded herself as the defendant's fiancée. The plaintiff said that she wore an engagement ring from about 1997 onward. No engagement was advertised.

19. During one period of absence in late July - early August 1993 the plaintiff went to stay in Brisbane with the family of a man whom I will call AB. She stayed there for two weeks. On the day after the second night, she went with AB to the airport prior to his departure. A stranger was engaged in order to photograph them together. The photograph shows them kissing. After her return to Canberra, the defendant suspected her of having an affair or relationship with AB. She denied it then and denies it still. AB went to live overseas and she used to ring him from time to time. The defendant still suspects her of having had an affair with the man.

20. The home in which the parties lived at Hampton Circuit has been the subject of some restoration and renovation work on the part of both. The defendant carried out renovation work to several of the rooms. The plaintiff painted the laundry and paid for the paint. She also established some garden beds at the front of the house. She put in some few plants and tended them. The defendant did not relish gardening in his spare time. He planted roses which he obtained from his work. He mowed and trimmed the grass and assisted the plaintiff to establish a vegetable garden at the back.

21. Whilst they were living at Hampton Circuit the plaintiff prepared breakfast and evening meals. When the defendant's work had him nearby she also prepared the midday meal. The parties shared the shopping. As to the financial outgoings of the household, counsel seemed to agree that the plaintiff paid out about 20% and the defendant 80%, from each according to his or her ability. In view of this approach on the part of counsel there seems little point in trying to divide up the proportion paid by the plaintiff when she was unemployed and the proportion she paid when she was in employment. The defendant paid for holidays which they had together from time to time.

22. Because the plaintiff was chronically short of money the defendant made advances of money to her from time to time which he says were by way of loan. The plaintiff also conceded that the defendant lent her about $10,000 in total in small amounts from time to time. The defendant claims that the total was about $2,000 more than that. The plaintiff said that when she bought some furniture with part of the proceeds of her compensation and damages the defendant said something about never getting his money back and not to worry about it. In her affidavit sworn 9 May 2001 she deposed that he said it jokingly. In her evidence in court she seemed to suggest that he was indicating that he forgave the debt. The defendant in his evidence said that he was being sarcastic and still expected the money lent to be repaid. It is hardly necessary to add that neither party kept any records.

23. It is common ground that when the plaintiff first came to Canberra the defendant lent her $2,000 for the cost of removal.

24. This is perhaps a small issue but also perhaps significant. Partners in a long lasting and intimate and committed personal relationship like a marriage may of course enter into contracts with each other but in the ordinary give and take of domestic finances, loans that are legally enforceable, let alone legally enforced, between the parties are surely rare. The fact that both parties in the present case regarded the transactions in question as a loan or loans, but neither sought to enforce or honour the loans, in itself appears to me to be a measure of the lack of depth and commitment in the relationship.

25. I should make it clear that the order of adjustment of property rights between these parties assumes that there will be no legal proceedings between them in respect of the debts alleged to be by way of loan. To the extent that there is a moral obligation on the part of the plaintiff to repay the moneys advanced that will be reflected in the exercise of discretion as to the extent of any property adjustment between the parties.

26. It is not intended to be any reflection on either party to say that the plaintiff impressed as a vivacious, sociable and independent young woman, the defendant as a serious and family orientated young man but somewhat older than his years. There was support, perhaps even pressure, on the part of his family to get and keep them together. The wonder was they stayed together so long. Contrary to the situation described in some of the cases, for example Ferraro v Ferraro (1993) FLC 92-335, this was not the example of a homemaker whose domestic efforts and commitment enabled a working spouse or partner to further a career or build up a business or raise a family. Rather the support of the working partner eased the way for the partner at home (for a substantial period suffering the consequences of two serious injuries) to gain educational qualifications which she was eventually able to put to good use in the last couple of years of the relationship. She would have continued to be able to do so, had it not been for the birth of her child.

27. In the landmark decision of Cooper J in Ferris v Winslade (1998) 22 Fam LR 725, his Honour adopted the course of taking the following steps, a course which has been followed since in other decisions of this Court. The Court is to:

* identify the property of the parties.

* evaluate their contributions under s 15(1).

* evaluate the matters referred to in s 19(2).

His Honour's approach has been followed in subsequent cases. Counsel for the parties in the present case invited me to do likewise and I shall do so.

PROPERTY

28. Mr Farrar, for the plaintiff, reminded me that the term "property" used in describing the first step should not be regarded too narrowly, since s 15 encompasses both "property or financial resources", indicating the intention of the legislature that there be a wide scope for the power of the Court to adjust the interests of the parties.

29. For evidentiary purposes the property and financial resources were set out essentially in financial statements completed by the parties using form 17 prescribed by the rules of the Family Court of Australia. That was a convenient course. The plaintiff's updated statement was filed on 19 March 2002 and the defendant's on 13 December 2000.

30. The plaintiff's financial statement disclosed an average total weekly income of $396, made up of a sole parent pension of $266, family allowance of $85 and $45 maintenance from the father of the plaintiff's child. Her average weekly expenditure was shown as totalling $176 including rent of $61, loan repayments of $60 and direct bank debits to ACTEW and Telstra of $55. Her assets were shown as antiques, white goods and jewellery of a value estimated at $2,000. Her liabilities were shown as legal fees $14,000 and principal owing on loan $1,000, total $15,000.

31. The defendant's financial statement showed average weekly earnings of a gross salary of $596 and rental incomes from the properties at Fyshwick $278 per week, totalled $874 per week. Average weekly expenditure was shown as income tax deductions of $238, superannuation deductions $58, totalling $296.

32. The defendant's assets were shown as follows (set out in revised Exhibit A):

(i) One third interest in 9 Weld Street, Yarralumla $163,333

(ii) One third interest in 13 Rodway Street, Yarralumla $146,667

(iii) One third interest in 6 Hampton Circuit, Yarralumla $133,333

(iv) Two seventh interest in 14-16 Wollongong Street,

Fyshwick $114,285

(v) Assets per Financial Statement $16,441

(vi) Cash in bank $15,494

(vii) Legal fees paid (added back in accordance with

Farnell's case) $8,350 $597,903

Less mortgage over 9 Weld Street for improvements

to 13 Rodway Street $13,333

Net balance: $584,570

33. Apart from the amount in the bank, the accrual of entitlements to superannuation and long service leave, the defendant's assets were much the same at the date of hearing as they were at the date of the separation. I have already indicated that the defendant acquired his interests in the real estate through his family.

CONTRIBUTIONS UNDER s 15(1)

34. Section 15(1) provides as follows:

"(1) On application by a party to a domestic relationship, a court may make an order adjusting the interests in the property of either or both of the parties that seems just and equitable to it having regard to-

(e) the nature and duration of the relationship; and

(f) 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; and

(g) the contributions (including any in the capacity of homemaker or parent) made by either of the parties to the welfare of the other or any child of the parties; and

(d) the matters referred to in section 19 (2), as far as they are relevant; and

(e) such other matters (if any) as the court considers relevant."

35. When the property and financial resources of parties are examined in order to ascertain the contributions financial or non-financial made directly or indirectly by or on behalf of either or both of the parties to the acquisition of such property, it appears that the respective contributions are relatively modest. The acquisition by the defendant of his interests is not so much the result of his own efforts as of the generosity of his father. I do not think that the interests were acquired by his father acting on his behalf. The fact that there was a gift to him of an interest of only one third in each of the properties, with each of his brothers sharing the other two thirds, I think shows an intention that the gift was intended to benefit him personally and not to be a contribution to the property of the relationship. There is no evidence that the brothers who own the other interests in the property at Hampton Circuit have any intention of depriving the defendant of the opportunity to continue to occupy it as his home.

36. Against the general background and nature of the relationship, it is difficult to decide whether the fact that the plaintiff purchased furniture and other items from her compensation and damages should impress those items as hers personally rather than as a contribution to the relationship. In any event she has retained possession of them to the exclusion of the defendant. I am satisfied that the plaintiff expended some of the damages and compensation for the benefit of the relationship, some in a tangible form such as the purchase of furniture (which she retains), some in less tangible form such as for the purpose of their social life, a higher standard of domestic consumption and so on. Some of it she spent for her own legitimate use such as jewellery and clothing.

37. To the extent that the parties contributed to the conservation and improvement of the property at Hampton Circuit and thus to the defendant's interest in it, I think that each party should be regarded as having contributed equally.

38. As to s 15(1)(c) there must be some allowance in favour of the plaintiff as homemaker, most particularly for the preparation of meals. The defendant does not claim to have made any contribution to the welfare of the plaintiff's child. The child was never a member of the household established by the parties. She was born after the relationship terminated. The contributions made by the plaintiff to the welfare of her own child seem to me to be irrelevant to this particular aspect of the statutory criteria, but may be relevant to the following. The Court is to have regard under s 15(1)(d) to the matters referred to in s 19(2) as far as they are relevant. Does relevance in this respect mean relevance only to the issue of whether it is just and equitable to make an order adjusting the interests of the parties or does it extend to the manner in which the adjustment is to take place? Or is s 15(1)(d) restricted to cases in which there is an application for maintenance under s 19 itself as well as an application for adjustment of property interests under s 15(1)? The cases seem to assume that for s 15(1)(d) to apply it is not necessary for there to be also an application for maintenance under s 19(1): see Ferris v Winslade; Waters v Jurek (1995) FLC 82, 370. On the other hand, s 15(1)(d) is specifically directed to matters that are relevant, whereas s 15(1)(e) extends to matters that the Court considers relevant. Is there a difference?

39. It may be sufficient answer to these questions to say that in the present case I consider that the matters referred to in s 19(2)(a) to (f) inclusive are relevant.

40. Section 19(2) provides as follows:

"(2) In exercising a power under subsection (1), a court shall have regard to -

(a) the income, property and financial resources of each party; and

(b) the physical and mental capacity of each party for appropriate gainful employment; and

(c) the financial needs and obligations of each party; and

(d) the responsibilities of either party to support any other person; and

(e) the terms of any order made or proposed to be made under section 15 with respect to the property of either or both of the parties; and

(f) any payments made to the applicant, under an order of a court or otherwise, in respect of the maintenance of a child or children."

41. I have already dealt with s 19(2)(a).

42. As far as s 19(2)(b) is concerned, clearly the defendant has a continuing mental and physical capacity to work as a gardener or in some less skilled capacity. The plaintiff's income is very modest and barely enough to support her and her child. The defendant's income is moderate but in the absence of heavy financial commitments should enable him to live in a comfortable lifestyle which is likely to continue.

43. The plaintiff's capacity to work as a nurse's aide or nursing assistant or in some less skilled capacity is severely curtailed by her obligation and wish to look after her young child. For the purposes of s 19(2)(c) and s 19(2)(d) that obligation gives rise to a financial need greater than that of maintaining herself alone. If her income is taken into account her financial needs are obviously greater than those of the defendant. Those needs are ameliorated somewhat by the provision of public housing and the payment of maintenance of the child by the father, to which regard has to be had under s 19(2)(d).

44. The defendant has substantial property interests which he shares with his brothers. The background to his acquisition of those interests is already the subject of discussion and findings. In my view, his interest in the Fyshwick property (and his financial commitment in that regard) should not be regarded as property in which the plaintiff has an interest or to which she should have recourse for that purpose.

45. The interests in the property at Weld Street and Rodway Street are more difficult to characterise. The defendant has a real interest in them. Technically he might be able to force a partition and sale and convert his interests into monetary form. But the evidence suggests that he is on cordial terms with his brothers and there is no reason why at the present time they would support a partition or a sale of the joint assets. I think the extent to which the plaintiff should be entitled to a share of the defendant's interest in these properties is much less than in relation to the other property of the defendant. I think that only half of the defendant's interest (after allowing for the mortgage debt of $13,330) in the Weld Street and Rodway Street properties should be brought into account for the purposes of being treated as part of the joint asset pool. There may be various arithmetical ways of giving effect to that view which would end in much the same result. My approach is set out below.

The plaintiff and defendant should be regard as each entitled to 25 per cent and 75 per cent respectively of the value of the following assets:

Plaintiff's assets $2,000

Defendant's assets:

Assets as per financial statement $16,441

Cash in bank $15,494

Hampton Circuit - one third $133,333

Rodway Street - one sixth $73,334

Weld Street - one sixth $81,666

Total $320,268

Less half mortgage liability: $6,665 $313,603

Total asset pool $315,603

Plaintiff 25% thereof: $78,901

Defendant 75% thereof: $236,702

46. As to the amount of $15,404.93 standing to the credit of the defendant in his bank account at the date of hearing, I am inclined to accept the submission that generally speaking it is not appropriate to require a party to a domestic relationship to forego an interest or part of an interest acquired after the termination of the relationship. However, that should not be an inflexible rule. If it can be shown that somehow the acquisition is related to a contribution by the other party during the relationship or in circumstances that are at least associated with the relationship some adjustment may be called for. But nothing of that nature can be shown in the present case. Moreover, the onus should be on the party whose property is the subject of the claim to show the extent to which the value of a property has increased since the date of hearing. That was also not done in the present case. The Court is in no position to know the difference between what was in the defendant's bank account at the date of the termination of the relationship. Accordingly, what was shown as the amount at the date of the hearing should be accepted prima facie as part of the pool.

47. As to the liability of costs for the parties in respect of this litigation the plaintiff claims to be liable for $14,000. The defendant has already paid the sum of $8,350. This aspect depends upon and affects any final costs order.

48. I think it appropriate despite the attitude taken by the Family Court in particular circumstances to have regard to the following. The plaintiff's liability for costs is on the figures in evidence much greater than that of the defendant, but this is explicable in part by her evidence being about what she expects to be her liability. The defendant's evidence about what he has actually paid. He makes no prediction as to his liability. I think it likely (despite the lack of evidence on the point) that he has been putting money aside against his exposure to costs. That explains in part the $15,494 standing to his credit in his bank account. He is clearly not trying to hide or dissipate assets so that she cannot get at them. I think that the fairest way to regard this aspect is to treat the bank credit as part of the asset pool and ignore the payment already made on account of costs and the allocation of liability for costs.

49. In accordance with the above findings I assess the defendant's net monetary liability to the plaintiff to be $78,901. I will accept submissions, if necessary, on how that liability might be discharged. Otherwise I propose that the plaintiff should have judgment for that amount. Consistently, with this approach, I would regard the parties as responsible for their own costs. The parties are at liberty to bring in short minutes to give effect to this decision, and to any suggested arithmetical error.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Miles.

Associate:

Date: 16 August 2002

Counsel for the plaintiff: Mr D Farrar

Solicitor for the plaintiff: Farrar Gesini & Dunn

Counsel for the defendant: Mr G Brzostowski

Solicitor for the defendant: Chris Crowley & Associates

Dates of hearing: 17 and 18 April 2002

Date of judgment: 16 August 2002