S v B[2004] QSC 80

SUPREME COURT OF QUEENSLAND

PHILIPPIDES J:

The Plaintiff’s Claim

1. The plaintiff brings these proceedings against the defendant pursuant to Part 19 of the Property Law Act 1974 (“the Act”) seeking a property adjustment order pursuant to s 286 of the Act.   

2. The plaintiff claims that she and the defendant lived together in a de facto relationship within the meaning of s 260 and s 261 of the Act from February 1993 to January 2000. It is alleged that in respect of the period from February 1993 to February 1996, the plaintiff lived at the defendant’s unit at B, and at the defendant’s house at C. From February 1996 to late January 2000, it is said that she lived at W., in a house built and financed by the defendant. It is alleged that the parties were de facto partners, who lived together as a couple on a genuine domestic basis in a relationship based on intimacy, trust and personal commitment to each other. It is alleged that the plaintiff made financial and non financial contributions to the acquisition, conservation or improvement of the property of the parties or of the defendant and to the financial resources of the parties for the purposes of s 291 of the Act. It is further alleged that the plaintiff made homemaking contributions and other contributions to the welfare of the defendant for the purposes of s 292 of the Act. The plaintiff also relies on sections of Division 4 subdivision 4 of Part 19 of the Act.

3. The defendant denies that there was a de facto relationship with the plaintiff, but alternatively, contends that any such relationship ended before 21 December 1999, so that the court has no jurisdiction under Part 19 of the Act.

The Application of Part 19 of the Property Law Act

4. The facilitation of the resolution of financial matters at the end of a de facto relationship is one of the purposes of Part 19 of the Act, Division 4 making provision for the resolution of such matters by the courts. Subdivision 2 of Division 4 of the Act provides for the adjustment of property interests and allows for applications to be made to a court for such orders. Its purpose is to ensure a just and equitable property distribution at the end of a de facto relationship (s 282). Section 286(1) allows a court to “make any order it considers just and equitable about the property of either or both of the de facto partners adjusting the interest of the de facto partners in the property.”

5. Part 19 also has as one of its purposes the provision of declaratory relief as to the existence or non existence of a de facto relationship (See Division 5, s 316, s 319,   s 320, s 321).  In this case, the parties seek that a determination of that issue be made.  In this regard, I note that s 321 of the Act requires the period for which the de facto relationship existed to be stated.

6. It is not disputed that Part 19 of the Act does not apply to de facto relationships which came to an end prior to 21 December, 1999, the date on which the provisions of Part 19 were assented to (s 257). Thus, the threshold issues which arise for determination are whether the parties were in a de facto relationship as defined by the Act and if so, whether it continued as at 21 December 1999.

7. Section 261 of the Act defines a “de facto relationship” as the “relationship between de facto partners”. Section 260 of the Act provides for an extended meaning of "de facto partner" for the purposes of Part 19.^[1]  A “de facto partner” is defined in s 260 of the Act, inter alia, as either one of two persons who are, under s 32DA of the Acts Interpretation Act 1954, de facto partners of each other. 

8. Section 32DA of the Acts Interpretation Act 1954, relevantly provides the following meaning of “de facto partner”:

“(1)In an Act, a reference to a "de facto partner" is a reference to either 1 of 2 persons who are living together as a couple on a genuine domestic basis but who are not married to each other or related by family.

  (2)In deciding whether 2 persons are living together as a couple on a genuine domestic basis, any of their circumstances may be taken into account, including, for example, any of the following circumstances:

1. the nature and extent of their common residence; 

2. the length of their relationship; 

3. whether or not a sexual relationship exists or existed;

4. the degree of financial dependence or interdependence, and any arrangement for financial support;

5. their ownership, use and acquisition of property; 

6. the degree of mutual commitment to a shared life, including the care and support of each other; 

7. the care and support of children; 

8. the performance of household tasks; 

1. the reputation and public aspects of their relationship.

3. No particular finding in relation to any circumstances is to be regarded as necessary in deciding whether 2 persons are living together as a couple on a genuine domestic basis. 

4. Two persons are not to be regarded as living together as a couple on a genuine domestic basis only because they have a common residence.

…”

Jurisdictional issue:  Were the parties in a de facto relationship and, if so, what was the duration of the relationship?

Background

9. The plaintiff was born in April 1948. She married in 1970, divorcing some 10 years later. In 1981, she commenced a relationship with F, which resulted in the birth in 1983 of a son. In 1991/1992, the plaintiff and F separated, with the plaintiff receiving $120,000 by way of a property settlement.

10. The defendant was born in 1926. He was married in 1950. He divorced in the 1960s and has two adult children from that marriage. In 1963, he purchased a house in N, where his former wife and two sons still reside. He retired in 1987 to C, in a house which he purchased in 1986, thus becoming neighbours with the plaintiff. He is now 77 years of age and experiencing some health problems.

11. During the years the plaintiff and F lived together, they became friendly with the defendant and frequently socialised. The plaintiff maintained her friendship with the defendant after the deterioration of the relationship with F.

12. The plaintiff went on holidays overseas for 2 months at the end of 1991 and beginning of 1992. The plaintiff claimed that the defendant rang her frequently during this period professing his love. On the plaintiff’s return to Australia, she continued to reside at C. It is accepted by the defendant that a close relationship developed between the parties by late 1992, which involved sexual contact and that they cared greatly for each other.

13. In September 1992, the parties travelled together overseas.

14. Thereafter the plaintiff claimed the defendant asked her to move in with him, but that is denied by the defendant. The plaintiff’s evidence was that she was unwilling to commit to moving into the defendant’s residence, which was next door to her former de facto’s house, because of sensitivities relating to her son. However, she maintained that she was willing to commit to a permanent and exclusive relationship. She said that the defendant offered her the means to achieve that without living under the one roof at the house at C, by offering his unit at B rent free, it having been, until then, rented out.

The period from 1993 to 1996

15. In February 1993, the plaintiff and her son, who was then aged about 10, moved into the defendant’s unit at B. The plaintiff and her son resided at the unit rent free until February 1996, during which period the defendant paid all Body Corporate and insurance expenses, although the plaintiff paid for her own electricity and telephone, and made some minor improvements to the unit. During 1993 the parties met up, while on separate trips, to see their respective families overseas. They also travelled overseas together earlier in the year.

16. It was the plaintiff’s contention that, notwithstanding that she and the defendant did not reside together in the one residence, the de facto relationship commenced at the beginning of 1993 when she moved into the unit with her son. The plaintiff contended that during this period she visited the defendant’s house virtually everyday, performed the tasks of a partner, including the cleaning, laundry and cooking, provided the defendant with companionship and that they shared an active sexual relationship. Her evidence was that she would go to the defendant’s house almost every day after dropping her son off at school and stay until it was time to pick him up, a contention which was not corroborated by the defendant’s neighbour, nor any other witness. The plaintiff claimed she spent the school holidays at the unit, but this was also denied by the defendant and not supported by independent evidence.

17. Whilst the defendant conceded that a relationship of intimacy and love existed during this period, he argued that they were not in a de facto relationship during this period. The defendant placed particular emphasis on a combination of contentions, including that the parties resided at different premises and led separate and distinct existences, had separate bank accounts, did not share domestic duties and did not hold themselves out as being in a de facto relationship. It was argued that although the parties saw each other frequently, it was not a daily event and much of the interaction was brief. The defendant accepted that the plaintiff usually stayed at his place when she had occasion to return to the house at C in order to provide her son to his father for the purpose of access. Apparently, this occurred every second weekend. The defendant thus conceded that they socialised, were intimate and had a sexual relationship during that period, but maintained that they only stayed overnight at each other’s place on an infrequent basis. The defendant disputed the plaintiff’s claim that during this period she did the defendant's washing and cooking and other household chores on a daily basis, but accepted that the plaintiff cleaned and cooked from time to time.

18. The plaintiff maintained that in February 1994 a joint venture company was entered into for the purpose of property development. It appears that the company was registered in February 1994, and that the plaintiff paid $790 towards the setting up of the company. It also appears that the company acquired two parcels of land; one in 1994 at S, which the plaintiff was instrumental in finding, and the other in 1995, being vacant land at W. The defendant claimed that he advanced all the funds for the properties. However, the plaintiff maintained that she contributed $10,000 to the joint venture. (The defendant contended that the $10,000 was in repayment of the debts of the plaintiff which had been paid by the defendant, the repayment being made on the recovery of some monies from F)

19. The plaintiff claimed that throughout this period the defendant still wanted the plaintiff to live with him in the same house. As part of that proposal, the plaintiff claimed it was agreed that the defendant would buy a block of land on which a house was to be built. The plaintiff stated that she agreed to move into such a house, but that she insisted upon the house being designed so as to take into account sensitivities relating to her son, requiring that the house be divided into two self contained parts. In late 1994, the defendant purchased a property at W, for the purpose of building the new house. A draftsperson was engaged to design the house, his fee being paid by the defendant. However, it appears that the plaintiff was also involved in the design of the property. The house was constructed during 1995.

The period from 1996 to 2000

20. The evidence indicates that in February 1996, the plaintiff and her son commenced to reside in the house at W, with the defendant moving in in March. The house was large and designed so that there were two self contained parts, the plaintiff occupying one part with her son and the defendant the other. The plaintiff’s side included a separate study and office and kitchen facilities. The house was also designed so that there was a common central living area and laundry. There were separate letterboxes numbered 26 and 28 and the parties adopted a practice of sometimes leaving messages in each other’s box. On documents tendered, the plaintiff appears to have given her address as No 26, with the defendant’s as No 28. There were also separate telephone accounts.

21. Whilst the plaintiff acknowledged that she and the defendant primarily lived in their separate self contained divisions of the house, she maintained that for all intents and purposes they conducted themselves as a de facto couple, who were in a committed, exclusive and loving relationship and presented themselves as such.

22. It is not disputed by the defendant that during this period there continued to be a close relationship between the plaintiff and the defendant, that the defendant was extremely supportive of the plaintiff, that they treated each other in a romantic manner. Nor is it disputed that they maintained a mutually exclusive sexual relationship, although it appears that they did not, as a matter of course, sleep in the same bed. It is accepted that the defendant assisted with the care of the plaintiff’s son, in that he assisted with the payment of school fees and would sometimes pick him up from school, take him shopping for mother’s day presents and that the defendant and the son had a close and affectionate relationship. It is accepted that at times the parties went on holidays together, with the defendant paying for such trips. During this period, there was no acquisition of property in a joint capacity, nor were any bank accounts held in joint names.

23. There were differences in the evidence as to the extent of household chores performed by the plaintiff for the defendant. The defendant’s evidence was that while they sometimes shared meals, they often ate at separate times in their own areas and that the occasions on which he ate with the plaintiff were recorded in his diary. The plaintiff’s evidence was that although the defendant did not always eat meals with her and her son, this was because he preferred to eat later and that she would nevertheless generally prepare meals for him and take them to him after she and her son had eaten, during which time the defendant often socialised, drinking with his friends in his side of the house. The plaintiff maintained that they entertained people at the house together and that she principally did the cooking on such occasions. The cleaning of the house was largely done by a cleaner who came to the house.

24. During this period the plaintiff undertook further studies. She had obtained further qualifications in 1994, and proceeded to obtain further qualifications during 1995. In January 1995, the plaintiff attended a post graduate course and thereafter began teaching. In 1998, her position was made redundant and the plaintiff was asked to reapply for her position. The plaintiff claimed that the defendant discouraged her from reapplying for her job and that he wanted her to stay home full time so as to keep him company and that he promised her that he would support her instead. The defendant disputed this and maintained that the plaintiff did not reapply for work for her own reasons.

25. Evidence was given that in August 1998, the plaintiff made a claim to Centrelink for a parenting payment in which she stated her address as 26 at W. The plaintiff omitted to make any mention on the relevant form when making the claim that she was in a de facto relationship with the defendant in accordance with her current assertions. Rather, the plaintiff claimed on the form that she paid rent to the defendant who was her landlord. The plaintiff was also in receipt of a sole parent pension. Again no mention was made on the relevant documentation to Centrelink that the plaintiff was in a de facto relationship with the defendant.

26. In late 1999, the plaintiff resumed employment in the form of part-time teaching at GU. It seems that her wages went towards the buying of groceries for her side of the house, although on occasion she would also buy groceries for the defendant.

27. According to the plaintiff, in around 1998 the relationship started to encounter difficulties, primarily because the parties’ sex life was being affected by erectile dysfunction problems experienced by the defendant. The plaintiff’s evidence was that in late 1998 she travelled overseas to visit her sick mother and that, on her return in early 1999, the defendant informed her that during her absence he had sought treatment that would assist with their sex life. It appears that the treatment was administered by penile injection. The plaintiff’s evidence was that she administered that treatment. There was no evidence to contradict the plaintiff’s evidence in this regard.

28. In October 1999, the plaintiff claimed that some of her jewellery had gone missing and advised the defendant. The defendant subsequently made a claim on the household contents insurance policy for $15,600 in respect of the jewellery. The claim was rejected because the policy had only been taken out in the defendant’s name and the plaintiff was not recorded as either a spouse or a de facto spouse on the policy.

29. The defendant maintained that relations had steadily deteriorated during 1999 and became worse after the incident concerning the claimed jewellery theft, about which he had reservations. The defendant contended that whatever relationship had existed between the parties came to an end soon after October 1999 and that by 5 December 1999 the parties were not even on talking terms. The plaintiff’s evidence was that while the relationship had deteriorated during 1999, she was still seeking to salvage it by attending counselling in November 1999, but that the defendant refused to participate. It does appear that by December 1999 the parties were reduced to communicating by notes that they left for each other. On 5 December 1999, the defendant left a note for the plaintiff complaining that the plaintiff owed him $1,500, apparently for University fees. In response, the plaintiff wrote a note to the defendant suggesting that he deduct the amount from her jewellery claim as she did not have any funds.

30. On 7 December 1999 the defendant wrote to the insurer as follows:

“I do agree that the plaintiff is neither my wife or what is called “my defacto” but is as a matter of fact a very close friend of mine for years and years.

The plaintiff can be called instead my “Jack-of-all-Trades, my factotum, my chief cook, my personal nurse, etc. etc.

Although she does not receive a salary from me for her activities I do take care of the financial side for living such as food, council rates, insurance etc. etc.

She is working 3 days a week as a teacher enabling her to pay for the education of her son.

Without her help I would be lost as I can not cook or do the ironing etc. etc.

It is indeed a most unfortunate fact that her inherited jewellery was stolen without me having the slightest idea that I should have insured her belongings separately.

The house is built in such a way that she can invite her friends or guests without bothering me.  The same can be applied to me, my visitors or friends are not bothering her.

I have my own kitchen as well but I seldom use it since I can’t cook and she is taking care of me.

I would really appreciate if you could judge this case from another point of view as I absolutely did not know that her belongings were not insured under the policy.  She is as a matter of fact a domestic staff without a salary for her service, but enjoys the separate living accommodation, likes to cook and does other domestic daily pursuits.”

31. It appears that, whilst the defendant had reservations about the theft claim as I have mentioned, he saw the claim as a means of recovering monies which he then considered the plaintiff owed him. The defendant left a copy of the letter of 7 November 1999 with a covering note dated 24 December 1999 stating: “In case you want to follow up the “jewellery affair” here is my letter and a response from the chartered loss adjuster. The ball is now in your court.”

32. The plaintiff’s evidence was that she spent Christmas Eve with the defendant, but not Christmas Day, which the defendant appears to have spent with a neighbour. The plaintiff’s evidence was that on New Year’s Eve the defendant told her that he was invited to a party and that he was going without her, which he did. The following day, 1 January 2000, the defendant indicated to the plaintiff that he had “found someone new”. The plaintiff said that sometime two weeks later, there was an altercation during which the defendant told her to “piss off”. The plaintiff said that after that, at the end of January 2000, she kept her door closed and changed the lock to her side of the house.

33. On 17 February 2000, the defendant gave the plaintiff a letter dated that day stating that “for the time being” the plaintiff could “stay put in the part of my house that you are occupying now, however, you have to contribute to meet the various expenses of this house”. The defendant proposed that the plaintiff pay a weekly rent of $150, one half of the electricity bill and two thirds of the water excess. The defendant stated:

“As soon as unit at [B] will become available, probably by the end of May or June, you will have to move to this unit.

A very reasonable rent will be charged … Might the unit be sold, you will receive an amount of $50,000 … for moving out to another location….” 

34. The plaintiff ignored the defendant’s offer. The defendant subsequently served the plaintiff with a notice to quit dated 28 March 2000. It was the plaintiff’s case that that letter marked the termination of the relationship. The plaintiff maintained that until then she had been endeavouring to save the relationship and that that letter marked the first occasion where it was clearly conveyed to her that the relationship was over.

35. On 20 April 2001, the defendant paid for removalists to remove the plaintiff’s belongings from the house and place them in storage.

36. In about June 2000, the plaintiff left Australia to seek employment abroad. She pursued employment overseas.

37. There is a conflict in the evidence as to whether and when an incident occurred between the parties involving a physical altercation. The defendant claimed that such an incident took place in the latter part of 1999, and involved the plaintiff striking the defendant who sustained scratches and bruising on his face. However, the plaintiff denied that claim and maintained that an incident occurred on 18 February 2000, when she was attempting to speak to the defendant about the letter of 17 February 2000, which resulted in her being struck by the defendant. Her evidence was that the defendant sustained some injuries when he fell over as a result of the plaintiff defending herself from his physical violence towards her. She said that she had only mentioned the matter for the first time to her legal representatives shortly before trial because she had been embarrassed about the incident. I should indicate that I am unable to reach any conclusion on the evidence presented as to the details of the incident and as to which party instigated aggression. However, it is clear that some episode occurred towards the end of the relationship involving some act of aggression and that it was a symptom of the difficulties which the relationship was going through.

Whether a de facto relationship existed

38. The evidence of both the parties ought to be approached with caution. I consider that the plaintiff overstated the position as to various aspects of the relationship between the parties. The defendant likewise tended to underplay the nature, extent and circumstances of the relationship. Although the plaintiff failed to indicate to Centrelink that she was in a de facto relationship when claiming parenting payments and the sole parent pension, and thus made statements inconsistent with her evidence in this action, the plaintiff readily admitted that aspects of those claims contained false statements and explained her actions, accepting that her conduct had been wrong. In the circumstances, I am not prepared to make the conclusion urged by counsel for the defendant that as a result of the prior inconsistent statements, the plaintiff’s credit is generally affected and her evidence should not be accepted, unless corroborated. Nor do I consider that s 101 of the Evidence Act 1977 affects the situation so as to require that result.

39. In respect of the period during which the plaintiff resided at the unit at B, that is, from February 1993 to early 1996, I am not satisfied on the evidence that a de facto relationship existed between the parties.

40. I accept that during this period the parties shared a close and supportive relationship, which extended to one of a sexual nature and which appears to have been a mutually exclusive one. It was also apparent that the defendant assisted in the support of the plaintiff’s child and that the plaintiff assisted with the performance of household tasks for the defendant. However, I am not satisfied that the nature and extent of their common residence during this period was as claimed by the plaintiff. The parties’ relationship during this period was marked by their maintaining separate residences and whilst it is clear that the plaintiff saw the defendant very regularly, I find that the contact was often of short duration and only extended to common habitation in one residence on an infrequent basis. I am thus unable to accept the plaintiff’s evidence as to the extent to which she frequented the defendant’s residence at C. Nor am I satisfied that the plaintiff assisted the defendant with household tasks to the extent to which she claimed. Her claims on these matters were overstated and were not supported by entries made by the defendant in his diary, nor by any other witness who gave evidence on behalf of the defendant. Nor did the plaintiff call any witnesses to substantiate her claims. There was limited financial dependence and interdependence. The parties did not for example share bank accounts, although they embarked upon one joint financial venture of a limited nature through the joint venture company, which the defendant primarily funded. In the circumstances, I am unable to accept that the parties could be said to have been living together as a couple on a genuine domestic basis during this period.

41. However, I am satisfied that a de facto relationship commenced in February 1996 when the plaintiff moved into the house at W. Importantly, the actions of the plaintiff in moving into the residence and of the defendant in providing the residence are significant indicators that the parties had undertaken a mutual commitment to a shared life on the basis of a shared common residence. Even though the relationship was an unusual one, in that the parties continued to reside primarily in their own part of the house, I am satisfied that they interacted on a frequent basis in a number of important respects, which demonstrated that they did indeed live together as a couple on a genuine domestic basis, whilst accommodating a degree of independence in their lifestyle. I am satisfied that the parties continued to enjoy an intimate relationship, which included a mutually exclusive sexual relationship. I accept that the plaintiff routinely performed household duties for the defendant, including preparing meals and cleaning. As regards the letter of 7 December 1999, it appears that the defendant was endeavouring to find a way around the dilemma created by the omission of the plaintiff as a de facto in the household insurance policy, by instead claiming that she was “a domestic staff without a salary for her service”. However, the letter does confirm the extent to which the plaintiff did assist the defendant in his day to day life. The defendant in turn also assisted with the care and support and welfare of the plaintiff’s son. There was also a significant degree of financial dependence by the plaintiff on the defendant during this period, which I am satisfied the defendant encouraged and willingly undertook on the basis that he would provide for her as his partner. Their financial arrangements indicated features of trust, generosity and intermingling. Notwithstanding the reticence of some witnesses called by the defendant, I consider that the evidence indicates that the parties presented themselves to the outside world as a couple.

42. As regards the termination of the relationship, I find that the relationship did not cease prior to 21 December 1999. Whilst the relationship had clearly deteriorated by late 1999, the defendant nevertheless continued to permit the plaintiff to remain in the house as before. However, I consider that the relationship effectively ceased in late January 2000 when the plaintiff changed the locks of the door to her side of the house. I therefore find that the de facto relationship commenced in February 1996 and ceased in late January 2000.

43. Accordingly, in respect of the threshold issues, I find that the parties were in a de facto relationship as defined by the Act and that it continued as at 21 December 1999 so that the provisions of the Act apply.

Requirement for Property Adjustment Order

44. Section 287 of the Act provides:

"A Court may make a property adjustment order only if it is satisfied:

1. the de facto partners have lived together in a de facto relationship for at least 2 years; or

2. there is a child of the de facto partners who is under 18 years; or

3. the de facto partner who applied for the order has made substantial contributions of the kind mentioned in section 291 or 292 and failure to make the order would result in serious injustice to the de facto partner."

45. On the basis of the finding I have made concerning the duration of the de facto relationship, the present case falls within s 287(a) of the Act.

The property adjustment order - relevant considerations

46. Section 286 provides that a court may make any order it considers just and equitable about the property of either or both of the de facto partners adjusting the interest of the de facto partners or a child of the de facto partners in the property. The matters which must be considered in deciding what property adjustment order would be just and equitable are set out in s 291 to s 296 of the Act. In addition, the court must consider the matters mentioned in s 297 to s 309 of the Act to the extent they are relevant in deciding what property adjustment order would be just and equitable.

47. An important consideration in this case is the contributions to property or financial resources. Section 291 provides:

"(1)The Court must consider the financial and non-financial contributions made directly or indirectly by or for the de facto partners or a child of the de facto partners to:

(a)the acquisition, conservation or improvement of any of the property of either or both of the de facto partners; and

(b) the financial resources of either or both of the de facto partners.

(2)…

3. It does not matter whether the property or financial resources mentioned in subsection (1) still belong to either or both of the de facto partners when the Court is considering the contributions made.”

48. A further matter of importance is dealt with in s 292(1) of the Act which provides for the consideration of contributions to family welfare as follows:

"(1)The Court must consider the contributions, including any home making or parenting contributions, made by either of the de facto partners or a child of the de facto partners to the welfare of:

(a)the de facto partners;

(b)or the family constituted by the de facto partners and one or more of the following: 

(i)a child of the de facto partners;

(ii)a person who is:

(A)accepted by either of the de facto partners into the household of the de facto partners; and

(B)dependent on either of the de facto partners."

49. Regard must also be had to the effect any proposed order has on the earning capacity of the de facto partners (s 293) and the other matters referred to in s 296, to the extent they are relevant in deciding what order adjusting interests in the property is just and equitable. For present purposes the relevant additional matters to be considered are:

1. the age and state of health of each of the de facto partners (s 297);   the income property and financial resources of each of the de facto partners (s 298(a); 

2. the physical and mental capacity of each of them for appropriate gainful employment (s 298(b);

3. the commitments of each of the de facto partners necessary to enable the de facto partner to support himself or herself or another child (s 300); 

4. the standard of living that is reasonable for each of the de facto partners in all the circumstances (s 303);

5. the contributions made by either of the de facto partners to the income and earning capacity of the other de facto partner (s 304);

6. the length of the de facto relationship (s 305);

7. the extent to which the de facto relationship has effected the earning capacity of each of the de facto partners (s 306);

8. whether they are now cohabitating with another person and the financial circumstances (s 307);

1. any fact or circumstance the Court considers the justice of the case requires to be taken into account (s 309).

50. Part 19 of the Act is based on the report of the Queensland Law Reform Commission published in June 1993: De Facto Relationships QLRCR 44.  Indeed Part 19 of the Act largely mirrors the De Facto Relationships Bill included in that report.  The provisions in that proposed legislation dealing with the circumstances  when the court can alter interests in property on the breakdown of a de facto relationship were modelled closely on the equivalent provisions in the Family Law Act 1975 (Cth), as are the provisions in Part 19 of the Act.  It is therefore appropriate when considering s 291 of the Act to have regard to the authorities that have considered the equivalent provisions in the Family Law Act (Cth) such as Mallet v Mallet (1984) 156 CLR 605.   In that case, the High Court endorsed the interpretation of s 79 of the Family Law Act 1975 (Cth) that it was intended that a spouse’s contribution as homemaker should be recognised in a substantial way and that the policy behind the legislation was that the contribution of a homemaker or parent was to free the other party to the marriage to devote time and energy to the pursuit of financial gain, so that the contribution as homemaker and parent must be seen as an indirect contribution to the acquisition, conservation or improvement of the property of the parties.  However, as counsel for the plaintiff correctly pointed out regard must also be had to the fact that s 79(4) of the Family Law Act 1975 has been amended since Mallet v Mallet so that the contribution made by a party to the welfare of the family, including any contribution made as homemaker, may be considered irrespective of whether it is linked with and dependant on acquisition, conservation or improvement of property. A like approach is reflected in s 292 of the Act.

Global approach versus the asset-by-asset approach

51. There are two possible judicial approaches to the assessment of the entitlement of the parties to property; the global approach and the asset-by-asset approach. The global approach involves the division of the parties’ assets on an overall proportion of the global view of the total assets. The asset-by-asset approach involves a determination of the parties’ interests in individual items of property. There is no binding principle of law controlling the exercise of discretion in the division of property: Norbis v Norbis (1986) 161 CLR 513.  The global approach is often regarded as a more convenient method than an asset-by-asset approach and counsel for the plaintiff urged that that approach be adopted here.  In doing so, counsel for the plaintiff conceded that the assets in the pool were effectively all sourced from the funds which the defendant had at the commencement of the relationship.

52. However, counsel for the defendant submitted that the adoption of the global approach of a percentage of apportionment of the total assets would produce an unfair result in this case. Relying on decisions such as McMahon v McMahon (1995) FLC 92-606 and Bonnici v Bonnici (1992) FLC 92-272, it was contended that an asset by asset approach should be adopted, particularly since it was argued that the majority of assets were derived prior to the commencement of the relationship, which it was argued was of relatively short duration.   It was contended that it was inequitable for the plaintiff to now assert a percentage of the total value of property when she had little, if any, involvement in respect of its initial acquisition and maintenance.   It was thus submitted that the adoption of a global approach would result in undue weight being given to substantial assets of the defendant to which the plaintiff made little or no contribution.   Further, it was said that the only asset which could be broadly described as joint, the shareholding in the E company, already conferred a substantial financial benefit on the plaintiff.

53. Although the submissions of the defendant are not without some merit, I nevertheless consider that a just and equitable result can be achieved by utilizing a global approach. I therefore proceed to adopt that approach and to determine the asset pool available on such an approach.

The asset pool available

54. It is not disputed that the defendant’s asset position comprises the following:

1. a house in H in which the defendant's ex-wife and adult sons reside (purchased in 1963 apparently for the defendant’s wife to reside in); 

2. moneys in various bank accounts; 

3. a unit at B;

4. the property at W;

5. the shareholding in the joint venture company;

6. moneys owing by the joint venture company;

7. a motor vehicle.

55. The parties have agreed on a valuation of the defendant’s asset pool as follows:

56. In addition the parties are agreed on the valuation of the joint venture company’s assets as follows:

57. Some question arose as to the accuracy of the joint venture company’s taxation returns, but no evidence was called to challenge their veracity and therefore I proceed on the basis of those documents. As regards the joint venture company, its net asset position can be ascertained by deducting from the sum of $308,395 a liability of $174,875, which I accept on the evidence is owed to the defendant. That yields a net value for the company of $133,520 with the net value of each share held by the parties being $66,760. However, such an approach would require the sum of $174,875 to be included as an asset of the defendant, bringing the defendant’s asset position to $1,636,112 ($1,394,477 plus $174,875 together with the shareholding in the joint venture company of $66,760). The plaintiff’s net asset position is her shareholding of $66,760 in the joint venture company. However, the plaintiff does not wish to retain any legal interest in the joint venture company and submitted that the net value for the company of $133,520 should be added to the asset pool of the defendant for present purposes. If the net value of the joint venture company is added to the defendant’s asset pool, the net pool is $1,702,872.

The plaintiff’s submissions as to the appropriate order

58. Counsel on behalf of the plaintiff submitted that in approaching the matter on a global basis, the appropriate percentage to be attributed for the contributions of the plaintiff on a just and equitable basis would be in the order of 15 to 20 % of the total pool. Counsel submitted that an additional adjustment of 5 to 10% ought to be made in the plaintiff’s favour in respect of the s 296 matters, primarily because of the disparity in the property that the parties would have on a notional distribution of assets on the basis of the contributions division.

The defendant’s submissions as to the appropriate order

59. The defendant submitted that it is not just and equitable for an adjustment order to be made. It was contended that, irrespective of the minor financial and any homemaking contributions made by the plaintiff, she had received substantial benefits relating to the education of her child, the improvement of her lifestyle, the payment of her education fees and the consequent expansion of her qualifications. It was argued by the defendant that the appropriate approach to bring finality to the relationship was to transfer the plaintiff’s interest in the joint venture company property to the defendant matched by the corresponding value of the shareholding.  Alternatively, it was submitted that, if it was considered just and equitable to provide some compensation to the plaintiff on a property adjustment order, it should be minimal and in the vicinity of $20,000.

Contributions to property or financial resources

60. The defendant made virtually all financial contributions to property and financial resources. The defendant lists these as:

1. Free rental at the premises at B for the period from February 1993 to March 1996;

2. Free accommodation at the premises at W;

3. Payment of school fees on behalf of the son;

4. Payment for holidays in Australia and overseas;

5. Payment for food utilised in the house;

6. Payment for all insurance, rates, etc associated with all properties at which the plaintiff resided;

7. Supplementing the plaintiff with moneys from time to time.

61. The defendant alleged that over the period from 1992 to 1999 he made payments totalling $76,763 for the benefit of the plaintiff and her son. The breakdown of the sum of $76,763 includes loans, payment of legal fees, medical expenses, school fees for the plaintiff’s son, and university fees for the plaintiff, amongst other matters. Of that figure the plaintiff only disputed an amount of $790. I accept that the balance was paid by the defendant. Some of these payments may more appropriately be considered as contributions to the plaintiff’s welfare. While some of these contributions took place before the commencement of the de facto relationship, I consider that they may nevertheless be taken into account for present purposes. Indeed, counsel for the plaintiff accepted as much, referring to Jones v Grech  [2001] 27 Fam LR 711, Del Gallo v Frederiksen [2000] 27 Fam LR 162,  McDonald v Stelzer [2000] 27 Fam LR 304.  This approach applies of course to contributions made by both parties before the actual commencement of the de facto relationship.

62. As regards the property in H, it was acquired long before the relationship between the parties and the plaintiff has not had any involvement with it. As regards the defendant’s cash reserves, I accept the submissions of the defendant’s counsel that these are the result of moneys which the defendant already possessed prior to the relationship or otherwise from the derivation of income from the B residence. As regards the unit at B, there is no dispute that this property was acquired by the defendant before the commencement of the relationship. Whilst I accept that the plaintiff made minor improvements to it, for example in the form of painting a bedroom, it is also relevant that the defendant forewent income he otherwise would have derived from the premises by providing it rent free to the plaintiff. I accept that, although these actions on both sides took place before the commencement of the de facto relationship, they should not be disregarded. With respect to the property at W, I accept that the defendant paid the purchase price entirely and that the proceeds of sale from the property at C were ultimately used to discharge the mortgage. The plaintiff claimed contributions in the form of assisting in design of the premises ($2,000) and saving on costs of construction ($30,000) and in assisting in the weekly payments of $30 for a cleaner and some other relatively minor matters. I accept these matters are to be taken into account.

63. Counsel for the defendant also argued that by reason of the defendant’s financial support, the plaintiff was able to improve her personal circumstances in that she was able to pursue further qualifications and that her capabilities for deriving an income have therefore been improved. I accept that submission.

64. The plaintiff contributed $790 towards the set up costs of the joint venture company. Other than that, all expenses relating to the acquisition of property and the payment of expenses associated therewith were met by the defendant. The plaintiff did not inject any capital, other than the disputed sum of $10,000, which I accept was made by the plaintiff. The defendant's affidavit indicated that on 20th May, 1994 he withdrew $130,819 from his Westpac Bank Account, to lend to the joint venture company for the purchase of the property. The land at W was purchased in 1995 for $5,000 which was paid by the defendant, although the plaintiff claimed that due to her intervention, the purchase price was reduced by some $10,000 resulting in a saving to the defendant. The property does not derive any income and it is hoped to be sold for $30,000. The plaintiff also claimed that she saved the defendant design fees of $2,000 in respect of the land at S. I am prepared to accept the plaintiff’s evidence on these issues.

65. A schedule of the non-financial contributions made by the plaintiff was tendered. It listed the painting of kitchen cupboards and a bedroom in respect of the unit at B. I accept that that occurred. It also listed in respect of the house at W, choosing the actual block, assisting in planning and designing the premises, attendance at the site during construction and assisting in the garden. As to the joint venture company, the plaintiff listed assisting as secretary in joint discussions with the defendant about investments. In addition, the plaintiff referred to discussions as to the land at W, and assisting in the design of the sub-division of the land at S and in the letting of that property. I accept that these contributions took place and ought to be taken into account.

Contributions to family welfare

66. I accept that contributions to family welfare were made by both parties. The plaintiff’s claims were set out in a schedule tendered at trial. The plaintiff claimed that she assisted in the care of the defendant while he was at the house at C. As I have indicated I consider that that claim of assistance is overstated. I accept that the plaintiff assisted in setting up house at W and that she frequently assisted with cooking meals and other domestic duties. However, I am unable to accept that even during that period the plaintiff’s contribution was as extensive as she claimed in her evidence.

67. The defendant disputed that the plaintiff forewent employment opportunities in order to be a "homemaker" or that she gave up her work at the instigation of the defendant in order to look after her son or the plaintiff, arguing that the plaintiff chose cease employment or to resume studies and employment as she wished. I accept that the plaintiff did curtail some of her recreational activities, studies and employment to be with the defendant, but I do not accept that this was done to the extent claimed by the plaintiff in her evidence. I also find that the defendant was supportive of the plaintiff pursuing further studies and employment when she desired to do so.

68. The defendant also argued, distinguishing Mallet v Mallet, that any alleged "homemaker" or non-financial contributions did not, in any event, fall for consideration because the role of "homemaker" was not undertaken to allow the defendant to utilise his skills to generate income and build towards the acquisition of assets.  However, the submission was misconceived, since s 292 of the Act permits home-making contributions to be taken into account, irrespective of whether they were linked with and dependant on acquisition, conservation or improvement of property.  That was the basis on which the claim was made by the plaintiff.  I accept that those contributions are to be taken into account.

69. It is also the case that the defendant also made contributions relevant for consideration under s 292 of the Act. For example, the defendant provided accommodation for the plaintiff for seven years. The plaintiff enjoyed overseas holidays paid by the defendant and the defendant assisted in paying for the plaintiff’s son’s education at a private school and otherwise assisted in the care and support of her son.

Adjustment considerations

70. The length of the de facto relationship was some 4 years. However, counsel submitted that regard should be had to the evidence of the relationship between the parties before they were in a de facto relationship. I accept that submission.

71. As regards the age and state of health of each of the de facto spouses, the plaintiff is 55 years of age, being born on 14 April 1948 and it was submitted has a life expectancy of some 20 to 30 years. She is in good health. The defendant was born on 5 September 1926 and is 77 years of age. It was submitted that he has a life expectancy of 8 to 9 years. His affairs are now conducted under an enduring power of attorney. The evidence of the defendant’s general practitioner, was that the defendant was exhibiting signs of changes in memory and probable early dementia. I accept that evidence. The evidence indicated that he may require care in the future. It was not in dispute that full time care by a live-in carer (the defendant’s preferred option for the future) would cost $3,500 per week. There is no evidence however that the defendant requires such care now, nor as to when such care might be required. Of course, there are other less expensive care options available.

72. Counsel for the plaintiff urged that consideration be given at the adjustment stage to the evidence that the plaintiff brought some $120,000 into the relationship from the property settlement with F. It was submitted that that money had been spent by the plaintiff in the expectation that the defendant would be supporting her.

73. As regards the extent to which the de facto relationship has affected the earning capacity of each of the de facto spouses, it was submitted on behalf of the defendant that the plaintiff has emerged from the relationship with better qualifications and experience in the work force and that while the plaintiff’s age limits her earning capacity, she is capable of obtaining employment on an international basis.

74. The plaintiff’s financial circumstances are set out in the disclosure made pursuant to s 289 of the Act. She now has a full time position teaching English overseas, where she can obtain more lucrative employment than in Australia. She earns £21,000 per year (together with holiday pay and superannuation) which amounts to £2,300 per month net earnings. There is no suggestion she will cease employment. There is no evidence that the plaintiff is required to financially assist her adult son. I have taken into account the necessity for the plaintiff to support herself and to have a reasonable standard of living, and the other matters referred to by counsel in submissions.

75. The defendant’s financial circumstances are good, although he has no income deriving ability other than earnings derived from investments, and will have to live off his assets for the remainder of his days. He also receives a pension.

Adjustment order

76. In having regard to the relevant contributions of the parties, I consider that a 12% adjustment of the total asset pool (incorporating the net value of the joint venture company assets) is appropriate. In addition, a further adjustment ought to be made to take into account the s 296 considerations. In considering the s 296 matters, it is relevant to note that the de facto relationship was of 4 years duration, although it was preceded by a period of support and commitment of some years. While the defendant has some health issues, the plaintiff is in good health. The plaintiff has been able to pursue employment, but will need to provide for herself for a potentially long period. In the circumstances, I consider that a modest additional adjustment of 3% is warranted.

77. I therefore consider that an adjustment order that apportions 15% of the total pool of $1,702,872 achieves a just and equitable result. This yields a figure of $255,431.

78. I shall hear submissions as to costs, bearing in mind the provisions of s 341 of the Act.