ODL v PRY[2011] QDC 127

DISTRICT COURT OF QUEENSLAND

1. [1]
   The applicant applies for Property Adjustment Orders pursuant to Part 19 of the Property Law Act 1974 (Qld).  She was born on 27 July 1959 so is now 51 and the respondent was born on 20 February 1962 so is now 49.  Both have significant health problems to which later reference is made.  There is some minor dispute about when they actually commenced living together “on a genuine domestic basis”, but on either case it was in the latter half of 2000.  The de facto relationship had concluded by October 2008 although the parties continued to reside under the one roof (‘the Bollier property’) (although at times the respondent lived elsewhere or was in hospital), until the applicant moved out in January 2010.  It is common ground that the parties ceased to live together on a genuine domestic basis in October 2008, so the de facto relationship was of approximately eight years duration. 

2. [2]
   The proper approach to such applications is well established and is set out and discussed in a number of decisions of the Court of Appeal: GAJ v RAJ [2011] QCA 65 per White JA at paras [8]-[10] of her Honour’s judgment; FO v HAF [2006] QCA 555 per Keane JA (as the Chief Justice of the Federal Court then was) at paras [46]-[52].  In that judgment his Honour referred to the utility and value of applying to these applications of the four step approach undertaken by the Full Court of the Family Court in Hickey v Hickey [2003] FLC 93-143 at 78, 386.

3. [3]
   In this case there is very little dispute between the parties and they have helpfully agreed to the “pool” to be considered in making the adjustment subject to one minor dispute.

4. [4]
   There is no real dispute that the respondent made by far the most substantial contribution initially to the pool of assets. At the time of the commencement of the relationship he owned a property in Victoria.  He said in his affidavit filed 23 December 2009 that he still owned the property with his former wife and yet the Order made by the Family Court to adjust property between them was in 1997.  He was not cross-examined about this and it is probably irrelevant, however he says by reference to a withdrawal of $100,805.72 recorded in his Bendigo Bank statement on 13 December 2001, that that sum represents the payout to his wife pursuant to those Orders after he had refinanced the property.  Again he was not challenged in relation to this evidence.

5. [5]
   He says that the property was sold in early 2003 for $243,000. The extracts from his bank statements do support his evidence that from the time he commenced the relationship with the applicant until the sale of the Victorian property he also received monies by way of rental from the property. I accept that after discharge of the mortgage and sale costs, he received a sum of $72,679.25. He also had an old car and a motorbike and (as at 1 July 2002) $80,128.01 in superannuation.

6. [6]
   The applicant brought very little to the relationship by way of assets. On her evidence she had net assets at that time of $11,500.

7. [7]
   It is common ground that by using the proceeds of the sale of the Victorian property, the respondent was able to purchase the property in which he presently resides at the Bollier property. The property is, and always has been, registered in his name solely.

8. [8]
   It is also common ground that during the course of the relationship, in March 2002, the respondent purchased an investment property in his name in Childers. He paid the deposit from his own funds and financed the purchase with a loan of $61,000 from the Bendigo Bank.

9. [9]
   The property at Bollier was purchased in March 2003. The respondent applied the proceeds of the sale of his property in Victoria and some accumulated savings towards the purchase price and associated costs.  The property was purchased for $182,500 and he borrowed $91,000 from Bendigo Bank.

10. [10]
    The applicant made no direct financial contribution to either the purchase of the Childers property or the purchase of the Bollier property.

11. [11]
    The Childers property was sold in 2004 for $150,000. It is common ground that the net proceeds of the sale was $80,000 approximately and the applicant accepted that these funds were paid into her account. She accepted that the funds were dispersed over the following year and it seems to be common ground that some monies (approximately $9,900) went towards the mortgage and other monies went towards the purchase of farm machinery such as a tractor.

12. [12]
    The applicant also accepted that she had the respondent’s pin number and internet banking details and that from September 2004 to June 2009 she transferred over $34,000 from his account in to her own account. Although she was not re-examined on Exhibit 5 (the summary undertaken by the respondent’s solicitors of financial records of the applicant), it appears from that document that over $9,000 went from her account to his in that same period.

13. [13]
    Essentially she claims that because she earned more during the relationship I should accept that both her financial contribution to the relationship and non financial (in the sense of performing domestic tasks etc) was greater than his. There is no doubt that she earned more than him as both parties accept the accuracy of the table (taken from tax returns) set out in paragraph 17 of her affidavit filed on 6 April 2011 which shows the difference in earnings of $55,912 in her favour over the financial years 2005 to 2008. As against that it must be set off the money she transferred from his account to hers which I infer came primarily from the sale of the Childers property.

14. [14]
    I am prepared to accept that marginally she contributed more to the financial upkeep of the parties during the relationship because of her higher income, however I’m not satisfied on the balance of probabilities that she contributed approximately $8,000 towards mortgage repayments from her own monies as she asserts. The respondent’s claims of financial contributions and payments of all costs related to the mortgage are supported by documentation. Mr Wildie was not able to point to any documentary proof to support his client’s alleged contribution nor was she so I do not accept it.

15. [15]
    The respondent was far more ready to make concessions when he was cross-examined than was the applicant who I do appreciate is under considerable strain because of her concerns about her health and her future. He agreed that she did work around the Bollier property by way of labouring in assisting him to improve it. He also agreed that during the currency of the relationship, she contributed more than he did to the purchase of food and household goods although I accept his evidence that he also contributed to these various items. I think it is highly improbable that once the parties separated, but remained living under the same roof, the applicant contributed towards the cost of all their food. I think it is more probable that each contributed to their own maintenance and upkeep from the point that the relationship ended.

The health of the parties

16. [16]
    Sections 297 and 298 of the Property Law Act 1974 (Qld) come into play in this case.  Both parties are still quite young but both have very significant health problems.

17. [17]
    The applicant was diagnosed with ovarian cancer in November 2007 from which she initially recovered and she was able to return to work as a nurse carer. The respondent had emergency open heart surgery in February 2006 and he was advised then to avoid work involving strenuous labour. He then enrolled in a biomedical science degree at the University of the Sunshine Coast with a view to becoming a paramedic, however he was re-admitted to hospital in October 2008 with re-infection of his heart valve and septicaemia.  He was unable to continue with his studies and was rejected by the Queensland Ambulance Service on medical grounds.  His complex medical history is the subject of a report dated 20 April 2011 which is not challenged.  The respondent’s health is such that his employment opportunities in the future are limited and he lives constantly with the threat of life threatening illness.

18. [18]
    The applicant’s more recent distressing medical history is covered by a discharge summary from the Royal Brisbane Women’s Hospital dated 31 March 2011 which is Exhibit 1 in the proceedings. She has suffered a recurrence of her ovarian cancer which appears to have metastasised to her ileum, sigmoid colon and liver. Surgery undertaken prior to that time is described as palliative not curative. It is most unfortunate that no report was obtained as the summary gives no prognosis and the applicant says she hopes to return to work in July or August. Thus, on the evidence, I find myself in the same position as Applegarth J in TJ v SB & Ors [2010] QSC 403, in that it is impossible for the court to determine her life expectancy.  The situation here is a little different to the factual scenario facing his Honour in that the summary does describe the surgical intervention as palliative and not curative, nevertheless it remains the case that there is no basis on which I can make findings as to her life expectancy.

19. [19]
    On the evidence, it appears to me that both parties are severely compromised with their health and both will suffer in their ability and capacity to undertake gainful employment in the future.

20. [20]
    As I noted earlier the parties have helpfully agreed to the pool to be considered with one exception and that is that the respondent contends that the eight cattle purchased by the parties during the relationship and sold by the applicant after its end should be brought in to the pool. She says she sold all the cattle for $500 and spent more than this on their upkeep. There is no other evidence to contradict this evidence so I do not see any point in bringing it in to the pool. The agreed schedule of assets and liabilities is as follows:

APPLICANT & RESPONDENT- SCHEDULE OF ASSETS AND LIABILITIES

Assets -

Liabilities-

Financial Resources-

21. [21]
    Applying the four step approach mandated by the Court of Appeal, I hold that a just and equitable division of the net assets would be a 75/25 split in favour of the respondent. I invite the parties to submit appropriate Orders to give effect to this finding.