DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application under Part 19 of the Property Law Act 1974 by which the applicant seeks to have transferred to her an interest in certain land registered in the name of the respondent.  The applicant alleges that the parties were in a de facto relationship from late 2001 until December 2005. The respondent on the other hand denies that the parties were ever in a de facto relationship. There is therefore an issue as to whether there was such a relationship at all. If such a relationship existed, it is then necessary to make the ordinary determinations as to property and as to contributions, and as to what order is just and equitable in the circumstances.

Was there a de facto relationship?

2. [2]
   This is not a matter where this issue turns on any careful consideration of exactly what is required in order to constitute a de facto relationship for the purposes of Part 19.^[1] The evidence discloses a very substantial factual dispute as to what actually happened involving the parties during the relevant period. The applicant’s case was that there was a sexual relationship involving the parties from the night they first met, and fairly soon after that the respondent moved into a house tenanted by her, from which time they were sharing the same bed and bedroom and living effectively as man and wife. That continued a few months later when the parties moved into a house purchased by the respondent in his own name, where the relationship continued until it broke down in December 2005, as a result, the applicant says, of the respondent’s violence towards her, so that she left that house.

3. [3]
   The respondent’s case was that he was not initially involved in a sexual relationship with the applicant, though he concedes that ultimately there were three occasions on which sexual intercourse took place. He had been living in a rented property which he was required to vacate in December 2001, by which time he had met the applicant, and he was then planning to buy a property at Carole Park for which, however, he needed to obtain finance, and into which he could not move until the following year. He says that the applicant allowed him to store his furniture downstairs at her rented property, and allowed him and his son and stepson to stay there for a few weeks, although for part of the time while his furniture was there he and his sons were on holiday in Bali.

4. [4]
   After he and his sons moved into the new house in January 2002 the applicant also needed a place to stay because her tenancy had been terminated, and he took the applicant and her daughters on as tenants of the downstairs part of the house that he had purchased, which was effectively a separate residence.^[2] He said that the applicant and her daughters remained as tenants of the downstairs area in that house until the tenancy was terminated and they left under threat of eviction proceedings in late 2005. He said that throughout the period when the parties were both living at his house they maintained independent households in separate parts of the house.

5. [5]
   Both the applicant and the respondent gave evidence in accordance with their particular versions; two of the applicant’s daughters and two other relatives gave evidence supporting the applicant’s case. An affidavit of a friend who was not available for cross‑examination was also read. The respondent’s case was supported by his son and two friends, and affidavits by a friend and a friend of his son, and by the mother of his son who was living in Cairns, were read, although they were not available to be cross‑examined on their affidavits.

Credibility

6. [6]
   Neither of the parties struck me as a particularly convincing witness. The applicant gave her evidence in a somewhat stilted fashion and appeared to harbour a good deal of hostility towards the respondent. The respondent was more natural in much of his evidence, though at times I had the impression that he was tailoring his answers to avoid what might have been otherwise damaging admissions.

7. [7]
   Apart from any considerations of demeanour, there were objective reasons to be wary about the evidence of both of the parties. The applicant, during most of the relevant period, had been claiming benefits from Centrelink on the basis that she was not in any de facto relationship, and that she was paying rent to the respondent for the premises she and her daughters were occupying. In 2004, when there was some investigation of her position, she made a solemn declaration to the effect that she was simply a tenant of the respondent and paying him rent to occupy the premises.^[3] That declaration was inconsistent with her present evidence, and whatever the true position the fact that she has given completely inconsistent versions with some solemnity on different occasions justifies treating anything she says with caution.

8. [8]
   Her explanation was that she was making false statements in order to claim benefits to which she was not entitled,^[4] though she said that she had since that time disclosed the true situation to Centrelink,^[5] and had agreed to pay back money she had received to which she was not in fact entitled because of the true situation. She was, however, not prosecuted, which in the circumstances seems a little surprising, particularly because it is not clear that this offending was, from Centrelink’s point of view, disclosed spontaneously by her. The amount repaid was not disclosed; the applicant’s statement of financial circumstances tendered at the hearing made no mention of it.

9. [9]
   It was also notable that the applicant in the course of her oral evidence made substantial changes to the dates given initially by her in her affidavit filed 29 September 2006, which dealt with significant features of what she said was the relationship:  p 11. She initially said that she met the respondent on 27 July 2000 (para 11), but in her oral evidence corrected that to 2001. There was a corresponding correction to paragraph 15 about when the respondent moved to live in premises she was then renting, and in paragraph 19 in relation to the date when the respondent had his holiday in Bali. In paragraph 29, the date of the discussion about a new car changed from mid 2001 to mid 2002, and in paragraph 42 the date of a holiday to Hervey Bay was changed from 2004 to 2005:  p 45. In most cases the correction involved acceptance of the date put forward by the respondent in his affidavit in response.^[6] In relation to the purchase of the car in 2001, the respondent accepted that he purchased a four-wheel drive in 2001 but said that the Pajero was purchased in 2002:  para 86. In relation to the trip to Hervey Bay, the respondent in his affidavit said that the trip took place in 2003, and that he had entries on his Visa credit card account to support his presence in Hervey Bay in 2003. However, the Visa statements in evidence date only from 17 September 2004:  Exhibit 12.

10. [10]
    The applicant admitted that she had convictions for drug offences including supplying drugs, though she claimed that she was actually in possession of the respondent’s drugs and that she had agreed to accept responsibility for them in order to protect the respondent: p 28. She also claimed that she had been selling drugs for the respondent. She also admitted to convictions for dealing with stolen property. There were also a number of inconsistencies between the evidence of the applicant and the evidence of some of her witnesses, which I will deal with subsequently when dealing with the evidence on particular issues. Overall, in all the circumstances, I do not accept the applicant as a reliable witness.

11. [11]
    There were also objective difficulties with the respondent’s evidence. He admitted to having criminal convictions including for assaulting and obstructing police and for possession of drugs, in particular marijuana: p 2; Exhibit 27. There were significant changes in his case in relation to whether he had had sexual intercourse with the applicant. Initially in his affidavit he did not admit to any sexual activity, although he claimed that on one occasion, after he and the applicant had been drinking heavily, he had passed out on her bed and woke to find the applicant performing oral sex on him.^[7] He told the applicant he did not want sexual relations and said that he was gay and found sex with a woman distasteful, and the applicant agreed to leave him alone. During his oral evidence, however, he conceded that sexual intercourse had in fact occurred between them on that occasion (p 78), and on two other occasions:  p 99.

12. [12]
    When the respondent was cross‑examining the applicant, his case was that sexual intercourse had happened only on this and one other occasion:  p 47. Under cross‑examination, however, he conceded that there were three occasions when sexual intercourse between the parties was videotaped by him, although he denied that he had admitted that there were three occasions of sexual intercourse only because he had discovered that the applicant had the videotapes or a copy of them:  p 99, p 106. Also, when the point was raised during the trial of his comment that he was gay, he said that in fact he was bisexual, and he conceded that since these events he had married:  p 100. There is a big difference between being bisexual and finding sex with a woman distasteful.

13. [13]
    The position of the respondent therefore in relation to these matters at the trial was significantly different from the position disclosed in his affidavit, in relation to matters about which I would not expect error to arise. There is also the consideration that it strikes me as inherently unlikely that two people who had never had sexual intercourse could deliberately videotape the first occasion when that occurred, or indeed every one of a limited number of occasions on which it occurred. On the whole I think it unlikely that both parties would have agreed to the videotaping of sexual intercourse between them unless a sexual relationship between them was already well established.^[8] On the whole, therefore, this aspect of his evidence casts doubt on his reliability.

14. [14]
    Another matter which concerns me about the evidence of the respondent arises from some photographs which he produced. Three photographs within Exhibit 2 were said to be of the downstairs kitchen, which the respondent maintained was a functioning kitchen used by the applicant and her daughters, with the photographs showing the state of the kitchen while the applicant was still there and presumably using it: p 8. I have looked closely at what appears in the photographs and they do not appear to me to be photographs of a functioning kitchen. They appear to me to be photographs of an area which had been set up at some stage as a kitchen area but which was not being regularly used as such. There is no indication of any food or food preparation equipment other than a microwave which appears to be so new the box for it is still visible in one of the photographs, and a toaster which also seems in such good condition as to suggest that it was also new. There is no indication of a cutlery drawer, or any of the usual food items one would expect to find in a kitchen. There are a number of items scattered around, which suggest that it is merely an area where things are left for one reason or another. Overall, it just does not look to me like a functioning kitchen.^[9]

15. [15]
    There were also problems with a receipt book that the respondent produced: Exhibit 14. The respondent said that these reflected rent payments which had been made to him by the applicant for which he had at the time written out original receipts which were given to the applicant; Exhibit 14 is a book of copies completed at the same time using carbon paper. These show payments of $240 per fortnight almost always being paid a fortnight apart, although occasionally a payment is one day early or late, to 17 September 2004, then one payment of $120 on 1 October 2004, and no other payments. Up until September 2004, however, this suggests the rent was paid with considerable punctuality.^[10] Yet in paragraph 85 of his affidavit, the respondent said the applicant was always late or in arrears in paying rent and her share of electricity, gas and phone. Electricity, gas and phone are not mentioned in the receipts. On the face of Exhibit 14 she paid rent quite regularly until September 2004, then effectively stopped. He also said in evidence that when she stopped paying rent he evicted her (p 96), but he did not evict her until late in 2005.^[11]

16. [16]
    There was also the consideration that the date on p 49 was incorrect:  page 48, which was in sequence, is dated 14 November 2003, for the period 16 to 30 November 2003; page 49, 12 November 2003, for the period 30 November to 14 December 2003; and page 50, 12 December 2003, for the period 14 December 2003 to 28 December 2003. This error looks much more like an error made by somebody who was writing dates on a series of receipts so as to fabricate a book of receipts than an error when somebody was attempting to write the correct date, or possibly because a rent payment had been made early or late.

17. [17]
    On the other hand, the dates in the receipt book would be consistent with an exercise in the latter part of 2004 of generating evidence in support of what the applicant was then claiming to Centrelink, which was that she was a tenant of the respondent and paying him rent.^[12] The content of Exhibit 14 therefore actually supports the applicant’s case rather than the respondent’s case, and is I think really inconsistent with aspects of the respondent’s evidence.

18. [18]
    Another inconsistency was that the respondent said that particular circumstances gave him the money he needed for a deposit to buy the house that he purchased: para 12. Yet in his oral evidence he said that, apart from a first home owner’s grant, all the money needed to purchase the house was borrowed:  p 5. Overall, therefore, I am not prepared to regard the respondent as a reliable witness either.

The photographs

19. [19]
    The applicant’s case was that at the respondent’s house she and the respondent slept in the main bedroom, her two younger daughters slept in another bedroom upstairs, and a third bedroom upstairs was a spare room.^[13]Downstairs there were ultimately four bedrooms occupied by the respondent’s son, the respondent’s stepson and her elder two daughters respectively.^[14] The respondent produced at the hearing a number of photographs of the premises, some of which were interior photographs taken, he said, during the time the applicant and her daughters were living there. I have already referred to the three photographs said to be the downstairs kitchen, part of Exhibit 2. On the other side of Exhibit 2 there is a photograph of a hallway facing towards the kitchen area, with a door on the right said to lead to the bathroom and toilet, and two other photographs, one labelled “applicant’s room” showing a bed, and one labelled “girls’ room”, the main feature of which is a chest of drawers. Although the respondent wrote the labels on the photographs, in his evidence he said that the room labelled “applicant’s room” was actually the room occupied by his son Karl, which he said was upstairs:  p 9.

20. [20]
    The applicant said that this was the respondent’s stepson’s room (p 35), her daughter Kieran thought it was probably Karl’s room (p 61), while the applicant’s daughter Bonny did not recognise it. Karl agreed that it was a photograph taken of his room, which he said was upstairs:  p 34. The only person who claimed that it was the applicant’s room was Ms Dryden:  p 22.^[15] On the whole, I suspect that the identification of this as Karl’s room is likely to be correct; that view has the support of most of the witnesses who were prepared to identify it. However, I think it unlikely that it is upstairs.

21. [21]
    The corner of the room appears to have something built out as though a post or thicker part of the wall had been enclosed at that point. The downstairs rooms had in various places similar features: the corner of the kitchen has a similar feature, and there is as part of Exhibit 2 a photograph showing a stump in the kitchen, which looks to have been previously enclosed but is now exposed. The room seen through a doorway in part of Exhibit 3 appears to have a similar feature in the corner, and there is a brick pier in the corner of the living room, which also appears in Exhibit 3. It appears that the downstairs rooms of the house were built in around existing stumps or other supports of the upper storey.^[16] Accordingly, if that photograph is of Karl’s room, this suggests that the room was downstairs.

22. [22]
    The room labelled “girls’ room” was said by the applicant to be Karl’s room (p 35), her daughter Bonny did not recognise this room (p 54), while her daughter Kieran said that it was either the stepson’s room or her and Bonny’s room:  p 61. The respondent said it was Kieran’s room:  p 9. Apart from what looks like a window to the right, there is almost nothing identifiable in this room except for the furniture and the curtains, neither of which resemble anything shown in any of the other photographs. The times on the prints suggest it was taken in the same room as the “applicant’s room” photo, and shows a window not in the other photo, which would be consistent with these photos being both of Bedroom 2 in Exhibit 3, in view of the evidence as to window location in Exhibit 7.

23. [23]
    The applicant’s daughter Bonny maintained that her room was downstairs next to the bathroom (p 54), and Kieran that Bonny’s room had been between the bathroom and the kitchen but had had its walls removed before these photographs were taken:  p 63.^[17] The respondent denied that any walls had been taken out downstairs (p 9), but there have been two lines of tiles removed from the floor shown in one of the kitchen photographs and also visible in the hallway photograph within Exhibit 2, which line up with the line of the walls in the hall, and with the stump which is exposed behind the refrigerator, and the stump looks as though it has been exposed as a result of something being demolished. The photographs provide support for the evidence of the applicant’s daughters, which I accept, that two walls have been taken out to enlarge the kitchen by removing a room that was previously between the bathroom and the kitchen.

24. [24]
    Exhibit 3 has a photograph of the living room downstairs on one side, the only significant features of which are the windows, the brick column in the corner, and that the floor is tiled, as is the floor in the hallway, the kitchen and the small part of the bathroom visible in Exhibit 2. The photograph of the hall on the back of Exhibit 3 (looking away from the kitchen) shows similar tiles running into the room at the end labelled “Bedroom 3”, a room to the left of the hallway, something else further down this side of “Bedroom 3” in the form of an angle of the hallway rather than an entrance to a room, and two doors to the right labelled “Bedroom 1” and “Bedroom 2”. It complements the photograph of the hallway in Exhibit 2.

25. [25]
    Bedroom 1 was said by both of the applicant’s daughters to be Karl’s room, but the difficulty with that is that the photograph looking into a bedroom through an open door appears to be a photograph of “Bedroom 1”, because the door opens from right to left in the photograph, whereas the door of bedroom 2 opens from left to right, and the window shown in the photograph is inconsistent with the window in bedroom 3. If the bedroom shown through the door in Exhibit 3 is Karl’s bedroom, it follows that the photograph labelled “applicant’s room” in Exhibit 2 is not Karl’s bedroom because they are different rooms; the photograph in Exhibit 2 shows a bed with a fancy bedhead, some beading in the area behind the bedhead, and no window to the left. Accordingly, the evidence that the “applicant’s room” in Exhibit 2 was Karl’s room is inconsistent with the proposition that “Bedroom 1” in Exhibit 3 was Karl’s room. The respondent said that “Bedroom 1” was the room occupied by the applicant’s two younger daughters:  p 10. That was consistent with the evidence of Ms Dryden:  p 23. The applicant claimed not to know who occupied the other bedrooms downstairs, that is, bedrooms 1 and 2 in Exhibit 3:  p 35.^[18]

26. [26]
    Both of the applicant’s daughters maintain that the bedroom marked “Bedroom 2” was the room of the respondent’s stepson.^[19] On the other hand, the respondent (p 10) and Ms Dryden (p 23) maintained that it was the applicant’s bedroom. Somewhat curiously, both the applicant (p 35) and the respondent (p 10) identified the room at the end of the hall, “Bedroom 3”, as the room of the applicant’s daughter Bonny, whereas both Bonny (p 56) and Kieran (p 63) identified it as Kieran’s bedroom. On the whole, I thought the evidence of the applicant’s daughters in relation to the location of bedrooms, etc was the most persuasive. Logically, the only evidence that they would have been giving was evidence to support their mother, or to tell the truth (which might have been the same thing),^[20] but their evidence about the bedrooms did not support their mother’s evidence on that point. Perhaps the photographs had been provided on disclosure, so they did not come as a surprise to the daughters, though my impression during the trial was that they did, and their evidence in relation to the photographs was generally the same, though not the same as their mother’s.

27. [27]
    There is the further difficulty with the respondent’s evidence that he has a fourth bedroom downstairs at the end of the corner of the hall, shown in Exhibit 3 leading off to the left between the bathroom and bedroom 3:  p 23. But if there had been an extra bedroom down there, it would have been inconsistent with the house being a basic rectangle, since the hall is parallel to the sides of the house and the position of the outside wall relative to the hall appears from the photographs in Exhibit 2. If there were a bedroom at the end of that hall it would have been sticking out from the line of the outside wall of the house which appears in the photograph of the kitchen in Exhibit 2, but no such room appears in any of the exterior photographs of the house.^[21] Exhibit 4 shows that the corner of the hall led to a door to the outside, under the deck. Once one rejects the theory of the extra bedroom around the corner,^[22] the only other place for a fourth bedroom downstairs was in the area where the applicant’s daughters said there was a fourth bedroom, which had been then made into part of the kitchen area by removing two of its walls.

28. [28]
    Exhibit 6 shows two photographs, in one of which there are two chests of drawers, and in the other a bed and a drawer and some other items. These also produced an interesting diversion of identification. The applicant thought they were the stepson’s and Karl’s rooms downstairs:  p 37, with the top photograph being the stepson’s room, though she said that the bed in the lower photograph was the girls’ double bed. She then suggested that it might have been taken upstairs before they had wooden floors upstairs. Ultimately she was not sure where the photographs were taken, maintaining that the younger girls had a bedroom with wooden floors upstairs:  p 39. Her daughter Bonny thought that they were photographs of the spare room and her younger sisters’ room upstairs:  p 57. Kieran said that the bottom photograph showed the younger girls’ bed (p 64), and the top room showed the drawers used in the younger girls’ room, which she thought may have been another part of the same room.

29. [29]
    Certainly both photographs show the same lino on the floor, but the lino might have been in more than one room. Ms Dryden said that the lower photograph showed the bedroom of the younger daughters of the applicant, and the other photograph the applicant’s room:  p 24. The respondent said that these photographs were taken of one of the girl’s rooms downstairs, but the difficulty with that is that I can make out the flooring in all but one of the bedrooms downstairs and they have a tiled floor. It is possible that the remaining bedroom had a lino floor and that these two photographs were both taken in that room, but on the whole I think the more likely explanation is that these photographs were taken in an upstairs room, or perhaps two upstairs rooms. I accept that the bed shown in the lower photograph was the one used by the applicant’s younger daughters. The respondent said there were two rooms downstairs with lino and two with lino upstairs:  p 7. That part of his answer dealing with lino downstairs seems to me to be falsified by the photographs.

Conclusions in relation to de facto relationship

30. [30]
    Apart from the doubts that I have about the reliability of the evidence of each of the parties, most of the witnesses were friends or relations of one or other party, or in the case of one witness, openly hostile to one party. In these circumstances, there is really no independent objective evidence to demonstrate that either version is correct. On the other hand, the analysis that I have undertaken in relation to the issue of credibility provides a number of reasons for supporting the view that the applicant and respondent were, at least to some extent, living together during the period when the applicant was living at the respondent’s house at Carole Park. I think the weight of the evidence supports the view that the sleeping arrangements were essentially as the applicant said, and importantly, that she and the respondent were, at least ordinarily, sharing a bedroom and sharing a bed.

31. [31]
    I suspect that the relationship was probably fairly superficial. There is no evidence of mixing of finances, in the sense of having joint bank accounts, or jointly owned property. It also appears that, to some extent at least, the respondent continued to pursue his own friendships and interests independently of the applicant: this was the substance of the evidence of the respondent’s witness, Mr Williams, on p 38. This, however, is not inconsistent with the existence of a de facto relationship.

32. [32]
    There is some evidence in the form of photographs showing the respondent present at social occasions of the applicant’s family, though not very many and they are not particularly compelling. Exhibit 21 shows the applicant sitting on the respondent’s lap, although the respondent does not look very happy about the situation. Exhibit 22 also shows the applicant apparently sitting on the respondent’s lap; this time it is the applicant who does not look happy about the situation. Exhibit 23 merely shows the parties present at the same social function, evidently a birthday party for someone at least 34 years of age. The same applies to Exhibit 24; again, the applicant does not look at all happy about the situation. Overall, however, the photographs^[23] appear to be consistent with the notion that the respondent was to some extent actively socialising with the applicant’s family, in a way which would be consistent with his being her partner.

33. [33]
    The timing of the move of both parties to Carole Park suggests that the applicant moved in in order to live there with the respondent; it would be a remarkable coincidence if the applicant’s housing difficulty happened to arise just when the respondent had purchased the property. On the other hand, there is no reliable evidence that the property was purchased as a home for the two of them, or that the applicant was involved in the selection of the property. As to the situation prior to January 2002, the evidence supporting the existence of a de facto relationship in the latter part of 2001 is tenuous. I note that the applicant’s daughter, Bonny, in her evidence said that the respondent was living downstairs when they were living at the applicant’s rented premises in 2001, and that the applicant and the respondent shared a bedroom after they moved to Carole Park:  p 49. In all the circumstances, I am not prepared to find that a de facto relationship existed between the parties prior to the end of January 2002.^[24]

34. [34]
    There is also some difficulty about dating the termination of the relationship. The applicant said that she left the house on 22 December 2005 (para 55), though she had previously said that they fought regularly for three months before she left (para 48) and that they lived together as a family until June 2005:  para 45. None of the other evidence threw any great light on this issue, but it did appear that the relationship had broken down and the applicant had moved out of the bedroom she shared with the respondent prior to the time when she and her daughters moved out of the house. That is the effect of the evidence of Kieran, which I accept:  para 12. Unfortunately she did not give a date for the applicant’s move into the spare bedroom. In all the circumstances I am not persuaded that a de facto relationship continued beyond September 2005. Accordingly, I find that the length of the relationship was three years eight months.

Structure of analysis

35. [35]
    In FO v HAF [2006] QCA 555 the Court of Appeal at [51] endorsed as a useful discipline to ensure clarity of thought and transparency the approach adopted by the Full Court of the Family Court in Hickey v Hickey [2003] FLC 93-143 at 78,386. This involves a four-step process:

1. The identification and valuation of the property, resources and liabilities of the parties.

2. The identification and assessment of the contributions of the parties to their pool of assets and the determination of their contribution-based entitlements in accordance with ss 291-295.

3. The identification and assessment of the factors in ss 297-309 to determine the adjustment to the contribution-based entitlement.

4. A consideration of the result of these earlier steps to determine whether that result is just and equitable in accordance with s 286 of the Act.

36. [36]
    It is apparent from that decision, and in particular the way in which the Court of Appeal in differing from the trial judge analysed the relevant facts, that it is appropriate to determine the value of the contributions of the parties to the assets at the beginning of the relationship, and to determine the value of the “asset pool” at the time of trial, bearing in mind in an appropriate way the effect on such values of things that have occurred after the end of the relationship. This reflects what was described by the court as the prima facie position that the parties should participate in the capital appreciation of an asset of the relationship in accordance with their initial contributions to the relationship:  [55].^[25] In this relationship, the position essentially was that the applicant had some chattels in the form of furniture and personal affects, but otherwise had nothing by way of financial resources and brought nothing in the way of assets to the relationship. The respondent had also been living in rented accommodation prior to the commencement of the relationship, but had purchased the property at Carole Park, largely with borrowed money, though he also received a first home owner’s grant, that is a government payment made specifically to him. The respondent said that he purchased the property for $84,000 (p 5) and that evidence is supported in Exhibit 20. The house was his initial contribution to the relationship. He was solely responsible for payment of the debt secured on the property.

Property, resource and liabilities

37. [37]
    In relation to the current value of the asset pool, this includes the Carole Park property which was valued at $330,000 as at 16 March 2010 by a valuer retained jointly by the parties by agreement:  Exhibit 20. The property is not in the same state as when it was purchased; the respondent said that during the relevant period there was a rear deck built on the property and a frame was put up for an outside wall, but that was about all:  p 6. The extent of this work appears in the photographs Exhibit 4. He said that since the end of the relationship more substantial work has been done; the deck has been partly enclosed, and the roof of the premises has been rebuilt:  p 6. The appearance of the house in its renovated form is shown externally by the photographs in Exhibit 7, which do show substantial additional work compared with the photographs in Exhibit 4. There were also a number of interior photographs (Exhibits 8, 9) which suggests that the interior has been also renovated, at least upstairs.

38. [38]
    There is nothing in the valuation to indicate what effect these renovations have had on the value of the premises, and it is also apparent from the photograph in the valuation Exhibit 20 and the valuer’s description, referring to the parcel being improved with standard landscaping, that a good deal of attention has been paid to the appearance of the grounds since the time when the other photographs were taken. The valuer noted that the downstairs area did not appear to be regulation head-height, and accordingly the downstairs area had been assessed for valuation purposes as “other areas” rather than “living”. Since the house in its unrenovated state would have been the same size upstairs as downstairs, it follows from the gross building areas given that the living area was increased by 33 square metres (from 74 square metres) as a result of the renovations, which also involved the construction of a substantial rear deck. That suggests that the value of the house was substantially increased by the renovations, but unfortunately the valuer did not apportion the valuation between the land value and the improvements, nor was a valuer-general’s valuation given.

39. [39]
    An insurance assessment for the insurance replacement cost of the improvements of $250,000 was given, which was said to include professional fees, removal of debris, site clearance, holding costs and future escalation in costs; unfortunately I do not know what this evidence indicates about the market value of the improvements. All I can say is that my impression is that the value of the premises has been significantly enhanced by improvements effected after the end of the relationship. It seems however that these improvements were paid for largely with borrowed funds.

40. [40]
    The applicant claimed to have assisted in the construction of the improvements affected during the relationship. Bearing in mind my overall assessment of her reliability as a witness, on the whole I am not prepared to accept that there was anything in the way of meaningful physical contribution to the renovations during the relationship. The applicant does not allege any financial contribution to the improvements, apart from some financial contribution to the cost of an above-ground swimming pool (mentioned in the valuation Exhibit 20 which includes a photograph of the pool). Again, in the circumstances I am not prepared to find that there was any direct financial contribution to this or indeed any other improvements effected during the course of the relationship.

41. [41]
    Apart from the property at Carole Park, neither the respondent nor the applicant own any land, or at least there is no evidence that they do so.^[26] The applicant has a motor vehicle, a BF Falcon sedan, which he purchased new in 2007 for $65,000; he borrowed the cost of that and there is an amount of about $48,000 owing on it:  p 14. There is no evidence of the current value of that motor vehicle; I doubt that it would be more than the amount owing on it. Apart from that, the respondent has an amount in the bank of $70,000 (p 113) and a superannuation entitlement as of 30 June 2009 of $53,878.58:  Exhibit 19. This exhibit shows that the respondent’s superannuation has more than doubled since 30 June 2003, and that up to the middle of 2005 the respondent was making personal contributions each year which were broadly speaking of the same order as the employer’s contributions. After 1 July 2005, however, there is no record of any member contributions, and the employer contributions seem to be significantly lower. The respondent works as a licensed drainer for a particular company for whom he has worked since 1988 and for whom he still works p 6. As pointed out by Rackemann DCJ in C v S [2004] QDC 163, the effect of s 263 of the Act is that superannuation entitlements are properly seen as financial resources rather than as assets to be included in the asset pool. The respondent would also have a quantity of furniture and other contents of the premises at Carole Park, including personal effects; there is no evidence of the value of any of these.

42. [42]
    The principal liability of the respondent is the amount secured by way of mortgage on the property at Carole Park; the current amount is $240,976:  p 112. Counsel for the applicant submitted that instead of taking the current value for the liability it was appropriate to take the amount outstanding on the mortgage at the time of separation, as reflecting the liabilities attributable to the relationship. It does not seem to me that that approach is consistent with principle or with the approach adopted by the Court of Appeal in FO v HAF (supra). In my view, the appropriate approach is prima facie to adopt the values in respect of all matters, both assets and liabilities, as they exist at the date of trial, though taking into account where appropriate the way in which those have arisen.

43. [43]
    The respondent said that the principal reason for the increase in the amount secured by way of mortgage since the end of the relationship is that money was borrowed to fund the renovation works. It would be unreasonable in those circumstances to disregard this additional liability if the starting point is the current value of the premises. To some extent as well, the increase in the mortgage debt has been due to a loan which paid off some other debts which would have been otherwise taken into account as liabilities, and which funded the amount currently available as a bank balance, and from which an amount of about $20,000 has been paid by the respondent to lawyers who were previously acting for him. The respondent said that he had no other debts apart from the car loan to which I have already referred.

44. [44]
    The applicant’s financial position is essentially the same as it was at the time which she went into the relationship: she still has no land or any substantial assets, she presumably still has some furniture and personal affects, she claims to have no superannuation entitlements, she is still unemployed (as she was before and during the relationship) and is surviving on Centrelink payments of (according to her affidavit para 57, as at August 2006) $526 per week including rent assistance, together with child support for the two younger girls of $148 per week and for the two older girls $5 per week.

The respondent’s financial records

45. [45]
    The respondent put in evidence a bundle of bank statements with Suncorp-Metway from December 2001 to March 2007: Exhibit 10. This was the account to which his employer made regular payments, though the amounts varied substantially; he was obviously employed on a sub-contract basis for work actually done. In the early part of 2002 at least he was receiving in this way payments of about $30,000 per annum. This account, however, was not used for this purpose between 17 March 2005 and 28 September 2006. In the latter part of 2004 the respondent was receiving regular payments from the employer of the order of $40,000 per annum. Apart from these payments, there were shown in this account regular direct credits identified as “Fao Families”, which start at just under $200, then dropped to $133 at the end of January 2002, then slowly increased to $142 in September 2003, then declined again to $114 by December 2003, and settled at $134.68 to the last payment on 16 May 2004. However, from 27 July regular direct credits of “AusGov FTV A and AusGov FTV B” were made, also fortnightly, which totalled about $150 per fortnight, and may have replaced the earlier payment. These continued until May 2005 when the AusGov FTV B payments stopped; the A payments seem to have continued until March 2006, when they also stopped. I have no idea what any of this was for, but assume it functioned as income.

46. [46]
    No great amounts built up in this account over the years, and indeed at times it was in overdraft. From February 2002 home loan payments were made from it of $240 per fortnight; otherwise there were regular and substantial ATM withdrawals which largely covered the amount of the deposits. Sometimes payments were made from a credit card by BPay, and from 2003 there were regular direct debits to Chrisco^[27] of about $44 per fortnight. There was a further advance on the home loan of just over $25,000 on 1 April 2004, which was followed by a cash withdrawal of $1,000 and a number of BPay debits, to Target Card, Telstra, AGC Personal Finance, a bank card account (two payments in early April, each over $5,700), with the balance being used up with ATM or EFTPOS withdrawals, some of which are marked as being at Bunnings Warehouse. It appears that this further advance was used to a large extent to consolidate debts, and to some extent to fund additional expenditure which may well have included for renovations. On 1 February 2005 there was a redraw of $3,000 from the home loan, most of which seems to have been then consumed by two ATM withdrawals of $1,000 each, and a larger than usual payment off a bank card. Otherwise these accounts do not yield any useful information.

47. [47]
    Exhibit 11 is a bundle of ANZ bank account statements for the respondent from 28 December 2005 until 2 February 2007; it therefore covers the period after the parties separated. During this period payments were being deposited to this account from the respondent’s employer and occasionally by telephone transfers or ATM transactions, and various sundry bills were paid out of the account, including for utilities and rates, while there is also reference to a loan obtained from the Adelaide Bank on 17 January for $3,400, which I assume has since been repaid.

48. [48]
    Exhibit 12 comprises credit card statements from September 2004 until December 2006 on a Visa Classic card. The statements record a number of cash advances, but also typical household payments such as for petrol, at Kmart, at Bunnings or other hardware stores, and at Woolworths. The payments at Woolworths do not look enough to cover a substantial purchase of groceries for a family, but there are substantial cash advances which could easily be used for groceries. One of the entries is an amount of $449 for the PSX Warehouse on 18 December 2004, which Exhibit 18 shows was for an upgrade to an X-Box, and for three games and a steering wheel. There was an amount of $246 paid to the Forest Lake State High P & C on 19 May 2005, which would be consistent with some fees associated with the respondent’s son’s school; the applicant claimed that she had paid all levied fees for all the children:  p 44, although admittedly that was claimed to have been paid in January 2005. It may be that the payment in May 2005 was for uniform items, although the applicant also claimed to organise new uniforms where necessary and purchased all text books and stationery for them. After May 2005, however, it appears that this account was used much less for ordinary household items, and mainly used for regular payments to an internet company (presumably an ISP) and to Queensland Motorways.

49. [49]
    The explanation of this declining usage may be that greater use was being made instead of an ANZ MasterCard, copies of the accounts for which between March 2005 and December 2006 were Exhibit 13. This started with a balance transfer of over $11,000 on 7 March 2005, and in June there were some significant cash advances, but also some more conventional household items, although not very many of them. By 2006 the card was carrying a substantial debit balance of the order of $15,000 from month to month, and was being used largely as an expensive personal loan.^[28] $10,000 was paid off on 19 May 2006 and my impression is that thereafter it was used somewhat more, although still not a great deal.

50. [50]
    Exhibit 26 is a bundle of statements for the respondent’s home loan account. The initial statement is from the period commencing 7 May 2002, by which time the balance was a little over $79,000. The loan was slowly reduced by regular payments until 1 April 2004 when an amount of $32,770 was advanced, said by the respondent to have been used for paying out credit cards:  p 114.^[29] The bulk of this was paid into the Suncorp account, where a credit of just over $25,000 appears on 1 April 2004:  Exhibit 10. None of the credit card statements in evidence go back to the beginning of April 2004.

51. [51]
    The respondent was paying $240 per fortnight off the home loan in May 2002, increasing to $251.08 by January 2003 (presumably as interest rates rose) and then to $351.08 on 24 January 2003, presumably when a concession for the first year of the loan expired. Payments continued at this rate until the further advance in April 2004, when they went up to $500, and by January 2007 they were $550. In late 2003 the interest rate went up by .5%, so that payments may have increased anyway if no further advances had been made, so it appears that repayments on account of the original debt would have totalled about $32,000 by the end of the relationship in September 2005.

52. [52]
    Following this further advance the regular fortnightly payments from the home loan were increased to $500. There is unfortunately a gap in the statements between 25 January 2005 and 2 January 2007, although the opening balance then of just under $97,000 suggests that there was some other intermediate advance. From the credit card statements that I have seen, I think it likely that that was also used for paying off credit card debts.^[30] There was then a further advance on 25 May 2007 which seems to have been for about $80,000, which the respondent said was used for the home renovations:  p 114. This was too late to show up in the other financial records of the respondent. After this advance the payments increased to something over $800 per fortnight, though there were occasionally additional payments and the payments in 2009 were reduced somewhat, no doubt to reflect reducing interest rates. By October 2009 when the loan was refinanced the balance was just over $160,000 in debit.

53. [53]
    I do not have documents about this refinancing, but the evidence of the respondent under cross‑examination was to the effect that the loan balance was transferred to ANZ, and that the balance on the most recent statement was $240,976:  p 112. I am prepared to accept that figure. This was because the amount borrowed in October 2009 was more than the amount required to pay out the existing loan; the respondent said that he had $70,000 in his bank account, and that he had paid his former lawyers $20,000:  p 113.

The Asset Pool

54. [54]
    Accordingly, for all practical purposes, the asset pool can be identified as follows:

55. [55]
    In this calculation I am leaving out of account the furniture and fittings of the house and personal affects. Apart from the fact that there is simply no evidence about the value of any of these things, it was a relatively short relationship and I expect that what the parties ended up with at the end of the relationship was in this respect much the same as what they brought into the relationship at the beginning of it. The superannuation is properly treated as a financial resource rather than an asset, so I have not brought it into account.^[31] The calculation assumes that the applicant has no relevant assets or liabilities.

56. [56]
    For practical purposes, that there is an asset pool is a reflection of the increase in the value of the home at Carole Park since it was purchased in January 2002. This is no doubt due mainly to the effect of increasing house prices generally in Brisbane over that period, but to some extent it would have been attributable to the renovations undertaken by the respondent, most of which (certainly most of what would have been likely, in my view, to produce an enhancement of the value of the property) occurred after the end of the relationship. I am not persuaded that at the end of the relationship the house was significantly different from what is shown in Exhibit 4.

57. [57]
    In my opinion, this part of the enhanced value after the relationship is attributable solely to the respondent. There is the difficulty that there is no evidence to help me quantify this enhancement. The most that I can say is that the valuation suggests that the renovations produced an increase in the living area upstairs of 45%, and I expect that the value of the improvements is related to the size of the living area. I note that the valuer treated only the upstairs area as living area because of the head height issue in the downstairs area, which prevents it from being regarded as an ordinary living area. If I had to, I would attribute $80,000 of the asset pool to enhancements effected by the respondent after separation.^[32] In my view there is no justification for treating that as part of the available asset pool, although if it is omitted that part of the extra home loan advances attributable to the renovations should also not be taken into account as part of the asset pool. On the respondent’s evidence $80,000 was advanced for this purpose.   There is independent evidence in the form of the valuer’s report and the photographs to demonstrate that the house has been renovated, and obviously that would have cost some money, and in the circumstances there is no reason to doubt the respondent’s evidence that this part of the debt was applied in that way. Accordingly for practical purposes the net asset pool is the same whether or not this matter is taken into account; the important thing is that the asset and the debt are either both in or both out.

58. [58]
    I do not consider that any other part of these liabilities should be disregarded on their basis that they relate specifically to the respondent. To some extent the recent increase in the indebtedness on the mortgage is reflected in the money in the respondent’s bank, which of course is taken into account. There is really no way in which I can allocate expenditure on the part of the respondent between matters which should be treated as personal expenditure and matters which should in some notional way not be so treated in relation to expenditure after the end of the relationship. The only significant payment which is clearly identified as personal is the payment of lawyers; my impression is that most of the rest is refinanced debt run up during the relationship. There was a further advance during the relationship to pay off credit card debts, and it appears that a credit card debt of $11,500 at the end of the relationship was later added to the home loan. These were prima facie the product of the relationship, so responsibility for them should be shared, but the respondent has been left to discharge them.

59. [59]
    No doubt there are cases when it is appropriate to disregard increases in indebtedness attributable to one party after the end of the relationship, but I do not consider that it is appropriate to do so here, particularly in circumstances where the respondent is left with the responsibility for discharging all of the indebtedness himself anyway, and will lose his home if ultimately he is not able to do so.

Contributions:  ss 291-295

60. [60]
    In terms of direct financial contributions, the respondent was responsible for the acquisition of the real property; he obtained the first home owner’s grant because of his qualification for it, he incurred the debt to pay for it, and he has been making the payments in respect of that debt since and will be responsible for them in the future. In terms of indirect financial contributions, the money the applicant applied to the household can be seen as contributing to the overall financial support of the household, and in that way providing indirect assistance to the respondent in making mortgage payments; having found that there was a relationship, I am prepared to assume that some at least of her money was applied in this way. She claimed that she contributed to the petrol used in the respondent’s four-wheel drive, and that she paid half the costs of utilities such as the electricity, telephone and internet: p 26. She also claimed that she bought food, and made some other payments such as for the respondent’s son Karl’s school fees:  p 26. None of this evidence is corroborated.

61. [61]
    The applicant was not without diversions. She admitted that she had a problem with gambling (p 17), and that as a result of that problem she had banned herself from a particular hotel:  p 19. She admitted to some involvement with illegal drugs during the relationship, an involvement she said she shared with the respondent. These would have consumed some of her income. The respondent’s income during the relevant period appears to have been about $650 to $870 per week.^[33] The applicant said that in August 2006 she was receiving a total of $681 per week,^[34] but there is no evidence of what she was receiving during the relationship. Presumably it was somewhat less, but not a lot less.

62. [62]
    In terms of the income that each party was bringing into the relationship, the position of the applicant is somewhat anomalous because the income, so far as it depended on Centrelink benefits, included benefits to which she was not entitled because of the existence of the relationship. It is not entirely clear how these should be treated: I can see public policy issues in treating as contributions on behalf of the applicant payments to which she only became entitled as a result of false statements or failure to disclose on her part, and there is also the practical consideration that if overpayments were repaid by her these contributions were in a sense only temporary. There is a suggestion at one point of the applicant’s affidavit (para 51) that the end of the relationship was prompted by the discontinuance of the Centrelink payments, but there is no reliable evidence of this and the other evidence about the end of the relationship does not support this view.

63. [63]
    There is no evidence as to the amount which the applicant was required to repay to Centrelink, nor was there any evidence of what benefits if any would have been properly payable had the true position been disclosed; I suspect that the applicant would have been entitled to some payments anyway, and presumably would have received the child support payments in any event. It seems clear that the applicant did not save any money during the period she was living with the respondent.

64. [64]
    In relation to non-financial contributions, I am not persuaded that there was any significant non-financial contribution made to the acquisition, conservation or improvement of the property by the applicant or for that matter by her daughters. There is no evidence of any substantial non-financial contribution on the part of any relevant child. In relation to the indirect contributions to the financial resources of either party, it will be apparent from what I said earlier that the evidence suggests that the existence of the relationship made it possible for the respondent to make additional superannuation contributions of $7,400. It appears that during most of the relationship the respondent was at least going along with the process by which the applicant extracted Centrelink benefits to which she may well not have been entitled, but this is not a financial resource within the meaning of s 263, and in any case it seems that that advantage has proved to be a transient one. Neither party built up any other savings during the relationship; indeed, it appears that other debts of about $44,000 were built up during this period, presumably reflecting a household living beyond its means, and were ultimately included in the home loan liability which the respondent has been paying off.

65. [65]
    In relation to the contributions by way of homemaking or parenting, again the matter is complicated by the evidentiary divide presented in the material. In effect the applicant’s case is that she was solely responsible for homemaking during the whole of the period of the relationship. It followed from the respondent’s case, that there was no relationship, that there was no relevant contribution to homemaking. There is, however, some evidentiary support for an intermediate position: Kieran in her affidavit para 9 said that both the applicant and the respondent would cook dinner for everybody, and continued that there was a roster for household chores such as washing up, feeding the pets and cleaning the kitchen covering all six of the children. Jeremy Hallstead, another of the applicant’s witnesses, said in his affidavit that while he was there the applicant would usually cook, although the respondent did help from time to time:  para 4. In his oral evidence under cross‑examination when asked who cooked the meals he said:  “It was the both of youse. Youse both, kind of, chuck in and help each other.”:  p 66. He also spoke of a roster to do the chores such as loading and unloading the dishwasher, cleaning the kitchen and feeding the dogs:  p 69.

66. [66]
    This evidence gives a somewhat different picture, and on the whole I am inclined to accept it. It presents a picture of shared responsibility, based largely on the availability of willing hands. In terms of matters such as shopping, the applicant who did not work would have had more time for this, but it does not appear that she ever had access to or was able to drive a motor vehicle, whereas the respondent had and drove a vehicle. The respondent and his witnesses made a concerted attack of the quality of the applicant’s housekeeping skills, supported by the photographs put in evidence of which were said to have been taken during the period when the applicant was still living there. I cannot, however, regard this evidence as reliable, although conversely there is no reliable evidence of any particular efforts on the part of the applicant in terms of housekeeping.

67. [67]
    In terms of looking after the children, the respondent’s stepson was 18 at the time when the relationship commenced, and I doubt if he required much looking after. The respondent’s son was 13, and may well have required some looking after, though it did appear to me from his evidence, some of which I was inclined to believe, that he also largely looked after himself, and spent a lot of time when he was not at school in the company of a friend.^[35] There was some evidence that on a couple of occasions when he had been in some trouble at school, the applicant had been involved. The respondent maintained that this occurred without his knowledge and consent. There is evidence that on one occasion she was involved and was treated by the school as being in effect in a parental position,^[36] but I cannot draw any inference as to the extent to which this involved the concurrence of the respondent, and her involvement on that one occasion would not have been of any great significance in itself. I think her involvement probably sprang from the fact that she happened to be at home at the time when the school rang wanting to involve a parent,^[37] and she chose to get involved. I dare say that the applicant was principally responsible for caring for her own daughters, who nevertheless would fall within s 292(1)(b)(ii) of the Act. There were no children of this relationship.

68. [68]
    There is a tendency to assume in a relationship of this nature that the parenting and homemaking contributions of the female partner would dominate. The difficulty that I have is that there is little in the way of reliable evidence from any source before me, and such evidence as I am inclined to treat as reliable suggests that there was no great disparity in the present case in favour of the applicant. Overall and doing the best I can I assess the homemaking and parenting contributions of the applicant and respondent as being 60% and 40% respectively; the disparity is largely because I accept that the applicant was principally responsible for looking after her own daughters.

69. [69]
    As to contribution-based entitlements, therefore, it seems to me that the most that can be said in relation to the applicant’s indirect financial contributions to the acquisition, conservation or improvement of the property is that, to the extent that she was contributing to the general expenses of the household, she reduced the need for the respondent to meet these obligations, bearing in mind that the obligations were to some extent increased because of the additional members of the household. This only occurred during the period of the relationship, that is for about 44% of the time which has passed since the house was acquired, during the whole of which the respondent has been paying off the home loan. There are also the contributions to family welfare referred to in s 292; some allowance needs to be made for the relatively small disparity in these contributions in favour of the applicant, although in view of the length of the relationship, I consider that it should not be very large.

70. [70]
    In my view, in the circumstances of this case and doing the best I can with the largely unsatisfactory evidence that is before me, I attribute to the applicant 20% of the net asset pool in respect of these contributions. This comes to $32,000. By comparison, 50% of the payments during the relationship in respect of the amount borrowed to buy the house^[38] would be $16,000.

71. [71]
    There was also the applicant’s indirect financial contribution to the financial resources of the respondent, which arises because during the period of the relationship it seems the respondent was able to make additional superannuation contributions (a form of compulsory saving) totalling $7,400, which were not made after the relationship ended. That suggests that this additional saving was made possible by the financial contributions to the household of the applicant, and the applicant should be given credit for that amount. an appropriate allowance in all the circumstances is an amount of $10,000.

72. [72]
    The proposed order will not have any effect on the earning capacity of either party. The applicant is presumably continuing to receive the child support that she would otherwise have been receiving anyway after the conclusion of the relationship, until the point is reached where that drops away; there was no evidence that the respondent was paying child support. Neither is required to pay the other child support. Accordingly it does not seem to me that any adjustment is required because of s 294. There was no evidence of any orders to be taken into account under s 295. The factors in these sections therefore suggest an adjustment of $39,400 in favour of the applicant.

Considerations in ss 297-309

73. [73]
    Dealing with the matters in sub-subdivision (4), the applicant is now 39, and in good health. The respondent is 45 (Exhibit 28) and apparently in good health. The applicant is living on Centrelink benefits and child support, and has effectively no property and no financial resources. The respondent has a modest income from his work as a drainer,^[39] and has the property and financial resources to which I have already referred. There is no reason to think that the applicant lacks the capacity for gainful employment, though she says she was unskilled and unqualified and she presumably has little experience of employment.

74. [74]
    There are no children of the de facto partners for the purpose of s 299. I am not persuaded that during the relationship any of the children of either party was treated as a child of a relationship by either de facto partner, even though the applicant’s daughters and the respondent’s son (and for a time his stepson) were ordinarily members of the de facto partners’ household. In my opinion something more than just inclusion in the household is required to satisfy para (d)(i) of the definition of child of de facto partners in s 259; what is required is that at least one of the de facto partners treats the child as if the child were the child of both de facto partners, rather than just a member of the de facto partner’s household.

75. [75]
    The only decision of which I am aware which considers the true meaning of para (d) of the definition is a decision of mine, Morrison v Willats [2005] QDC 43. Since that decision is not available on the court webpage, I will repeat what I said there:

76. [76]
    “One issue which arose was whether the applicant’s two children which she had before the relationship fall within the definition of ‘child of de facto partners’ in s 259. That depends on whether, at a time during the relationship, they were ‘(i) treated by either de facto partner as a child of the relationship;  and (ii) ordinarily a member of the de facto partners’ household’:  paragraph (d) of the definition. None of the other paragraphs of the definition applies. It seems to me that subparagraph (i) must have been intended to add something to the requirement of subparagraph (ii), and hence to restrict the scope of operation of this paragraph. In addition the formulation used is different from, and must have been intended to be narrower than, the formulation used in s 292(1)(b).

77. [77]
    “Paragraph (d) of the definition in s 259 is apparently peculiar to Queensland.^[40] I have not been able to find any authority which discusses its interpretation. It seems to me however that the crucial requirement is that the child at the relevant time was treated, by a partner, as a child of the relationship. I think that that is different from treating the child as part of a family including the de facto partners;  if that were the crucial concept, it would be essentially covered by the second part of paragraph (d), in subparagraph (ii). There must be something more than that required. Nor do I think it is sufficient simply to show that the child was supported by the breadwinner. The child may have been supported by the breadwinner because it was ordinarily a member of the de facto partners’ household. There is also the consideration that, if a child of one of the partners who is living with them and is dependent on one or other of them is on that basis to be treated as falling within paragraph (d) of the definition and therefore as being a child of the de facto partners, it is difficult to see what need there is in s 292(1)(b) for the extension included in paragraph (ii) to operate beyond the concept, in paragraph (i), of ‘a child of the de facto partners’.

78. [78]
    “In my view the crucial requirement is that the child be treated as a child of the relationship, that is to say, be treated by one (at least) of the de facto partners as a child of the relationship between them. Consider a situation where the de facto wife has a child during the relationship which the de facto husband treats as his child by her. That child, assuming that it was ordinarily a member of the de facto partner’s household, would satisfy the definition of paragraph (b) even if DNA tests subsequently proved that the child was not in fact the child of the de facto husband. It seems to me that that is the sort of situation which this part of the definition was intended to cover. The child must be treated as a child of the relationship, not as if it were a child of the relationship, or in the same way as the children of the relationship are treated. The provision is not concerned, in my opinion, with the day to day behaviour of the de facto partners towards the child in question;  it is concerned with whether at least one of the partners attributed a particular status, that is, being a child of the relationship, to the child in question.”

79. [79]
    The only thing I would add to what I said there is that I note that para (d) follows para (c) which provides that the term includes a child “adopted by the de facto partners”. That would refer to legal adoption, and it may be that para (d) was intended to cover a sort of de facto adoption as well. In any case, the provision as I would interpret it is clearly not satisfied here. That in my opinion would involve at least one partner recognising in the other partner the sort of rights that would be appropriate if that partner were a parent of the child (such as the right to discipline the child) or the other partner assuming such rights, on a substantial or continuing basis. I do not consider that the evidence of the applicant (or for that matter any other evidence) went far enough to satisfy that requirement and in any case I do not regard that evidence as reliable.

80. [80]
    I take into account the commitments of each of the parties to support themselves and their respective children. As a result of his later marriage, the respondent has taken on a commitment to support his wife.^[41] There was no evidence that either party has a responsibility to support anyone else. There was no evidence as to the standard of living of the applicant after separation, but there is no reason to think that the standard of living of the applicant after separation was any different from the standard of living of the applicant before the relationship, or even significantly different from the standard of living of the applicant during the relationship. Given the size of the asset pool and the length of the relationship, in my view it would not be appropriate to make any adjustment because of the matters referred to in s 303. There is no evidence that either contributed to the income or earning capacity of the other. I have already mentioned the length of the relationship, which I regarded as a short relationship.^[42] I consider this a particularly significant factor in this case.

81. [81]
    I am not persuaded that the de facto relationship has affected the earning capacity of either party. There is no evidence about whether the applicant is cohabiting with another person. The respondent has since married, but there is no evidence about the financial circumstances of that cohabitation. In these circumstances, I really cannot attribute any significance to the factors in s 307. There is no evidence of child maintenance other than payments by way of child support. I do not consider that in the circumstances of this case there is any other fact which the justice of the case requires to be taken into account. Essentially, having considered the matters referred to sub-subdivision (4), I do not consider that any further adjustment is required to the contribution-based entitlement.

Consideration of the results

82. [82]
    In these circumstances, I consider that it is appropriate that the applicant receive the sum of $39,400 from the net asset pool. For comparison purposes, that is about 25% of the net asset pool, or 18.5% if one includes the respondent’s superannuation.^[43] This is a modest adjustment, but in all of the circumstances of this case it seems to me an appropriate allowance for the applicant. This was a short relationship into which the applicant really brought nothing except the indirect advantage of a benefit, to some at least of which she was not entitled. No doubt the fact that she was relieved from the burden of paying rent meant that she had some spare financial capacity and to some extent that capacity was contributed to the household so that the respondent benefited by some reduction of the financial burden which would otherwise have fallen on him, but otherwise my impression is that it was a fairly shallow relationship.

83. [83]
    I do not think that the respondent has benefited to any great extent from the relationship, at least in financial terms, and it appears that he has been left with the burden of additional debt; nor do I think the applicant is any worse off than would have been the case if she had never entered into the relationship. Indeed, in financial terms she is better off, in that during the period of the relationship she had the benefit of some additional disposable income. I do not consider that in the circumstances of this case it would be just and equitable to make a larger adjustment in favour of the applicant.

84. [84]
    I was referred to a number of decisions, but none of them provides for circumstances which are overall comparable with the present matter. The facts before the Court of Appeal in FO v HAF (supra) were quite different; there was a substantial asset pool, to which there had been substantial financial contributions by the plaintiff who had given up her career as a result of becoming pregnant to the defendant and moving to live with him, and who after the short relationship came to an end was continuing to care for the child of the relationship, albeit with some financial support from the defendant. The case is of importance for present purposes really only because of a number of statements of principle that it contains.

85. [85]
    In the matter of C v S [2004] QDC 163, to which I was referred, there was a substantially larger asset pool, more substantial contributions by the plaintiff and a much longer relationship, about eight years. In addition, an adjustment in favour of the plaintiff was made because of the sub-subdivision (4) factors.

86. [86]
    The matter of Smith v Ward [2000] QDC 29 to which I was referred was decided on equitable principles, and is therefore not necessarily a good guide to the approach to be adopted under Part 19 of the Act. I was referred to the decision of the Court of Appeal in PY v CY [2005] QCA 247. That was a case where the matter in dispute was whether a de facto relationship had in particular circumstances come to an end, and it seems to me that it turns very much upon its own facts.^[44] It is not helpful to note that in that case where there was a substantial divergence of evidence the trial judge preferred one version over another, and the Court of Appeal did not interfere.

87. [87]
    Bucknall v Bucknall [2009] FamCAFC 177 was relied on for the proposition that legal fees paid by one party should be added back into the asset pool. The decision in that case turned on the particular circumstances of the case, which was unusual in a number of respects, involving as it did the existence of a family trust set up during the relationship to carry on the business of providing the husband’s labour, which business was after the separation carried on by another company, and the approach of the Full Court was to some extent based on the way in which assets associated with these businesses were treated by the trial judge. If I am wrong about this, and the amount spent on legal costs should be added back into the asset pool, this would not greatly affect the final order that I would make; it would just mean that the adjustment would be a smaller share of the (larger) asset pool, since I would not regard it as just and equitable to make an adjustment greater than $40,000 in favour of the applicant.

88. [88]
    I also looked at CJR v BMS [2010] QSC 16, a recent decision of the Supreme Court in a matter with some similarities. The net asset pool was $201,070, of which only about $6,500 net was in the hands of the applicant; the relationship was longer than this, 6 years and 3 months, and a child of the parties was born during it, and was in the care of the applicant, who had 3 other children. She had ceased work after she became pregnant and was unwell, and the respondent had also stopped work to care for her. The respondent owned a home unit, which was rented out at all times, and was treated as a matter going to the financial security of the respondent, although it was included in the asset pool. The applicant’s share of contributions under s 292 was assessed at 60%. The respondent had been in employment during most of the relationship, although not all full time; at the trial he was living on benefits and rent. The applicant had a modest part time job, but was largely living on benefits. It was said that the parties had contributed about the same in asset acquisition, and the respondent was more financially secure. A lump sum payment of $60,000 was ordered in favour of that applicant; she had I consider a significantly stronger claim than does the applicant here.

89. [89]
    I also consider that it is just and equitable to deal with the application by a form of order which simply requires the respondent to pay the applicant the fixed sum rather than giving the applicant a proportion of the house property. If the latter course were followed, it would be necessary either for the respondent to buy out the applicant’s interest by making a cash payment to her, or to sell the house property in order to enable that applicant’s interests to be realised. That would produce unnecessary and undesirable complications, and provide an opportunity for further disputation. Given the evident strong feelings between the parties, I think it is desirable in principle for the final resolution of matters between them to be kept as simple as possible. Assuming the respondent has retained sufficient money in his bank account since the trial, he should be able to satisfy any order for payment of money speedily from that source. That, I think, is the form of order which is also most just and equitable in the circumstances.^[45]

90. [90]
    I therefore order pursuant to s 286 of the Property Law Act 1974 that the respondent pay to the applicant the sum of $39,400 by way of adjustment of the interests of the parties in the property of the parties. Subject to that order, I declare that each party is entitled to have and retain all of the property in that party’s name or possession. I shall hear submissions in relation to the question of costs, but note the terms of s 341 of the Act.