RD v DB[2011] QSC 83

SUPREME COURT OF QUEENSLAND

Introduction

1. The parties were in a de facto relationship for more than 13 years between early 1994 and late 2007. The plaintiff seeks a property adjustment order under Part 19 of the Property Law Act 1974 (Qld) (“the Act”).

2. The parties are agreed, and I accept, that the four step approach discussed in FO v HAF is appropriate.^[1]  This approach involves:

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

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

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

4. 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.

3. There is no dispute about the assets that the parties now own, their current liabilities, or their assets and liabilities at the start of their relationship. The significant issues requiring resolution are:

• The evaluation of their financial contributions to household and other shared living expenses and to their respective individual expenses;

• The evaluation of their respective contributions to the acquisition, maintenance and improvement of three properties;

• Whether two of those properties, which are owned by the defendant, should remain owned by her, either on an asset-by-asset approach or because they should be “quarantined” on a global approach;

• The appropriate adjustment, if any, of their half-interests in the remaining property.

A summary of the history of the relationship

4. The plaintiff was born in 1961. The defendant was born in 1955. They were in a x de facto relationship between 1981 and 1983.  They lived in New South Wales at the time.  They resolved matters in relation to the property in which they resided (“Croydon Park”), and in 1986 the defendant purchased the plaintiff’s interest in that property.

5. The parties commenced a second de facto relationship in February 1994, and this is the relationship with which I am concerned. It ended on or about 25 October 2007. At the time the relationship commenced the plaintiff owned a property at Stafford which she had purchased in March 1991.  By 1994 it was worth approximately $103,000 and was mortgaged to an amount of about $57,000.  Its equity was around $46,000 before account is taken of sale costs.  She owned furniture worth about $10,000, a car worth about $10,000 and a small amount invested in superannuation.

6. At the start of their relationship in 1994, the defendant owned the Croydon Park property, which had a value of about $180,000, and was subject to a mortgage of $3,800.  She owned a car worth $18,000, and had savings in the bank of $8,000.  She owned a few shares.  Her personal property was worth about $10,000.

7. If the Stafford property and the Croydon Park property are treated as contributions to the assets of the relationship, then the defendant’s initial financial contribution to the relationship was approximately $217,000,^[2] whereas the plaintiff’s initial financial contribution was about $66,000.^[3]  The difference is due principally to the Croydon Park property being worth about $80,000 more than the Stafford property and having a much smaller mortgage.

8. When the parties began their relationship in February 1994 the defendant moved into the plaintiff’s Stafford property.  In April 1994 they jointly purchased a property which I shall refer to as Campbell Terrace.  After they moved into Campbell Terrace the plaintiff’s property at Stafford was tenanted.

9. Campbell Terrace was purchased for $155,000. The defendant paid the deposit of $7,000 and loaned the plaintiff her half share of the deposit. The mortgage over the property was in joint names.

10. Between February 1995 and June 1995 the plaintiff suffered acute chronic fatigue syndrome. She ceased full time employment in February 1995 and after June 1995 worked part-time.

11. The defendant’s parents came to reside with the parties at the Campbell Terrace property for about nine months in 1995.

12. In 1996 the Campbell Terrace property was subdivided to create a separate lot which I will refer to as Raymont Road.  The parcel of land created at Raymont Road was valued at about $56,000.  In March 1996 the plaintiff transferred her half interest in Raymont Road to the defendant for $28,000.

13. In 1996 the plaintiff sold her car and paid the proceeds of sale of $7,800 into a joint mortgage account. In February 1997 the plaintiff sold her property at Stafford and the sale settled in April 1997.  The net proceeds were $57,261.22, from which $40,000 was paid into the joint loan account as a “prepayment” of the loan secured against Campbell Terrace.  The balance was deposited into the parties’ joint account, which was a “loan offset” account.  In late April 1997 $14,000 was withdrawn from this account to assist in the purchase of a car.

14. The plaintiff’s chronic fatigue syndrome slowly improved, and she obtained part-time employment.  She also studied part-time for a Masters degree, which she completed in 2000.

15. During these years in the late 1990s the defendant was in full-time employment and earned substantially more than the plaintiff.

16. In October 1998 the defendant sold the property at Croydon Park, and in February 1999 she purchased a property (“Fletcher Parade”) for $270,000.  The property was unencumbered.  The plaintiff and the defendant moved into Fletcher Parade in April 1999, and Campbell Terrace was rented.  A swimming pool was constructed at Fletcher Parade in December 1999.

17. The defendant became ill in 1999 and could not work between September 1999 and February 2000. This reduced her income, although she received payments of about $7,000 from income protection insurance.

18. From 2001 to 2004 the plaintiff undertook a doctorate. She received an annual tax free scholarship of $17,000 in 2001, 2002 and 2003 and earned a relatively small income from other sources such as teaching and consulting. During these years the defendant remained the principal income earner in the relationship. However, in 2004 she resigned from her full time employment due to the accumulated stress of her demanding job and other stresses. She undertook a course in massage therapy, with a view to working in this field.

19. The year 2005 marked a significant transition in the parties’ relationship and their employment. The defendant was looking to change her work and lifestyle. The plaintiff completed her doctorate in April 2004, and was seeking a full-time academic position. In the meantime she undertook consultancy work and part-time teaching at university. The plaintiff obtained an offer of employment in the United Kingdom as a lecturer.  In August 2005 the parties moved to the United Kingdom.  The home in which they had lived at Fletcher Parade was tenanted.

20. By August 2005 when the parties relocated to the United Kingdom they had limited cash resources to meet ordinary living expenses and the costs of relocating to another country.  The defendant had not been in full-time employment since April 2004 and her personal savings of about $20,000 had diminished substantially.  The parties were financially reliant upon the plaintiff commencing employment in September 2005.  The defendant obtained a loan from her sister to assist with expenses.  The parties found the cost of living in the United Kingdom more than they had anticipated.  Initially they were dependent upon the plaintiff’s academic salary and credit card facilities.  The defendant began to work as a massage therapist in association with a therapy centre.  She was invited into this business collective and rented a room.  The plaintiff assisted her with some establishment costs.  The defendant’s massage business became established.

21. The relationship ended in October 2007. As a result, the defendant abruptly ended her business in the United Kingdom and returned to Australia, via New Zealand.  She regained employment, and in recent times has been promoted such that her current gross income is approximately $125,000. 

22. The plaintiff continues to reside in the United Kingdom where she is employed as a Senior Lecturer.  Her current salary is the equivalent of approximately $62,000.  She rents her accommodation.  The only real property that she owns is her half interest as a tenant in common with the defendant in the Campbell Terrace property.  It is valued at $510,000 and the mortgage secures a loan balance of $127,580.

23. The defendant resides at the Fletcher Parade property that was purchased by her in February 1999. It is unencumbered and has a value of $640,000. The defendant is also the registered owner of Raymont Road which is valued at $430,000 and is encumbered by a mortgage which secures a loan balance of $164,000.

Summary of property, resources and liabilities of the parties

24. The parties agree about the extent of their current assets and liabilities. A revised and agreed schedule of assets and liabilities was submitted on 29 March 2011 after the conclusion of the hearing, and I will make the documents so submitted Exhibit 14. The major assets are those previously noted, being the real estate at Campbell Terrace, Raymont Road and Fletcher Parade. The schedule includes relatively small amounts of shares and managed funds along with furniture, furnishings and personal possessions. The parties undertook an informal division of chattels that were stored in Brisbane and no issue is taken in relation to any disparity in the value of their personal possessions, furniture and furnishings.  The value of the plaintiff’s shares and managed funds is approximately $40,000.  The defendant’s shares, managed funds and savings are of a similar order.  The defendant owns a car valued at $12,000.  Each party has credit card debts.

25. Each party has superannuation. Due to her age and work history, the defendant’s superannuation resources are higher than the plaintiff’s. Neither party contended that it was appropriate to adjust their superannuation entitlements. Their financial resources in the form of superannuation and the plaintiff’s teacher’s pension fund from the United Kingdom are about equal. Each has resources in this regard of about $90,000. 

26. The agreed schedule of assets and liabilities summarises the position as follows:

27. The parties adopted the sensible course of submitting that the Court should not disturb their informal division of chattels or take any particular account of their respective savings, shareholdings, personal assets or superannuation and pension entitlements. Accordingly, the principal focus of attention is upon their real property.

Identification and assessment of contributions – general principles

28. In EB v CT, I stated:

“The purpose of Subdivision 2 (Adjustment of property interests) of Part 19 of the Act is “to ensure a just and equitable property distribution at the end of a de facto relationship”.  The court may make any order it considers just and equitable about “the property of either or both of the de facto partners” adjusting their interests. Property that is made the subject of a property adjustment order may include property that was owned by one of the parties prior to the relationship.  For instance, where it is just and equitable to order that an interest in property be transferred to a de facto partner who provided a substantial welfare contribution, the court may order that property that was owned by the other de facto partner and never used in the relationship be transferred.  A gold bullion bar that was held in a safety deposit box by one of the parties before and throughout the relationship is an example.  There is an important distinction between the property that may be subject to a property adjustment order and the property that was contributed to the relationship.  Accordingly, care is required in treating all the property of one of the de facto partners at the start of the de facto relationship as an “initial contribution.”...

The Act contemplates that the property of either or both of the de facto parties may be the subject of a property adjustment order, including property that was owned by one of the parties at the start of the relationship. However, this possibility does not support the conclusion that their separately owned assets are all “initial contributions” or contributions “to the relationship” that are pooled.”^[4]

29. The defendant relies upon this passage, and the plaintiff does not dispute the principles stated in it. A question arises as to whether all of the assets that were owned by the parties at the commencement of the relationship should be treated as contributions to it. For example, an issue is whether the defendant’s Croydon Park property should be treated as an “initial contribution” to the parties’ collective assets at the time the relationship commenced in February 1994, or at least when the proceeds of its sale were used to purchase the Fletcher Parade property, which was registered in the defendant’s name in April 1999.  I consider that if Croydon Park is not treated as an initial contribution as at February 1994, the contribution of its net proceeds of sale of $258,303.39 should be treated as a contribution by the defendant to the assets of the parties.  Fletcher Parade was purchased with these proceeds and other amounts saved by the defendant.  It became the parties’ home after April 1999.  It was improved by the addition of a swimming pool that was paid for with funds drawn from the parties’ joint account.  The fact that Fletcher Parade forms part of the parties’ assets does not compel the inclusion of its present value for the purpose of a property adjustment order.  The adoption of an asset-by-asset approach might exclude it from the property that is to be subject to a property adjustment order.  The essential point is that the defendant owned a virtually unencumbered home at the start of the relationship and used the proceeds of the sale of her home to acquire Fletcher Parade.  Subject to adjustments for any sums that were sourced from joint assets or from the plaintiff for the maintenance or improvement of the property, the defendant should retain that home.  This result might be achieved by adopting an asset-by-asset approach or by largely quarantining Fletcher Parade from the process of adjustment under a global approach.  If it is not quarantined from the process of adjustment, the adjustment should take account of the defendant’s overwhelming financial contribution to its acquisition, maintenance and improvement.

30. As to the evaluation of both financial and non-financial contributions, in WB v GSH^[5], I stated:

“It has been said that in evaluating contributions under provisions analogous to ss 291 and 292 the task “is not akin to an accounting exercise.”  The court is required to make “a holistic value judgment” in the exercise of a discretionary power of a very general kind.  The court is not required to undertake “a reductionist process analogous to the taking of partnership accounts” by examining every contribution of the kinds described in ss 291 and 292 with a view to putting a monetary value on each in order to reach an accounting balance one way or the other, then to be eliminated by the requisite financial adjustment.  However, before the “holistic value judgment” is made the court is required, so far as possible, to evaluate the contributions that are being taken into account.  In doing so “the origin and nature of the different assets ought to be considered.”

The parties accept that these principles should be applied.  In that case I reviewed authorities in relation to the so-called erosion principle.  I concluded that the Court of Appeal’s decision in BLM v RWS^[6] supported the following propositions:

(1)an initial substantial contribution by one party may be “eroded” to an extent by the later contributions of the other party;

(2)in a long relationship, and depending upon the circumstances, some “erosion” may be presumed;

(3)later contributions, also described as “offsetting contributions”, may be apt to erode the initial contribution of the other party;

(4)whether an initial contribution has been “eroded” and the extent of such erosion depends upon the circumstances of the case.

In BLM v RWS the Court of Appeal approved the approach adopted by the Full Court of the Family Court in relation to the provisions of the Family Law Act that are analogous to Pt 19 of the Property Law Act.  In In the Marriage of Pierce^[7] the Full Court of the Family Court stated that:

“it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution.  It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife.”

31. As to whether I should adopt a global or asset-by-asset approach, the plaintiff notes that either approach is open, and submits that an asset-by-asset approach is more common in the case of a short relationship where the parties have kept their assets separate, or where assets may have been divided informally at separation and there is a long delay between separation and the proceedings. The plaintiff submits that the asset-by-asset approach is not as common in the case of a longer relationship. The defendant submits that given the relative equality of the parties at the commencement of the relationship and their comparable earning capacities during it, an asset-by-asset approach is to be preferred, especially when regard is had to the manner by which assets were acquired during the course of the relationship. In broad outline, the defendant submits that the properties at Fletcher Parade and Raymont Road should be treated as the defendant’s property and that the only asset which might be the subject of adjustment is their co-owned property at Campbell Terrace.  Alternatively, the defendant submits that if the global approach was adopted it would not affect the outcome of the proceedings.  She submits that on either basis there is no need for any adjustment order to be made.

32. I do not consider that the adoption of either a global or an asset-by-asset approach will result in a significantly different outcome. If a global approach is taken one must heed the warning made by Nygh J in In the Marriage of Gill and cited with approval by Mason and Deane JJ in Norbis v Norbis that “the origin and nature of the different assets ought to be considered”.^[8]  This would require account to be taken of the fact that Fletcher Parade was purchased with the proceeds of the sale of Croydon Park which the defendant owned, practically unencumbered, at the start of the parties’ relationship in February 1994.  If Fletcher Parade was to be “quarantined” out of the adjustment process then it would be necessary to take account of certain contributions made to its maintenance or improvement.  Account would need to be taken of the cost of installing a pool there.  Those costs total $14,475.90.^[9]  If Fletcher Parade is quarantined from the pool of assets for the purposes of a property adjustment order then sums that would otherwise be treated as contributions by the defendant towards its acquisition, maintenance and improvement could not be treated as contributions towards the pooled assets.

33. If, however, Fletcher Parade is included in the parties’ assets then account will need to be made of the parties’ individual and joint contributions towards its acquisition, maintenance and improvement.

34. Account also will need to be taken of the fact that the defendant’s significant contribution towards its acquisition and maintenance permitted the plaintiff to reside in that home “rent free” between April 1999 and August 2005 when the parties moved to the United Kingdom. The expression “rent free” is something of a misnomer. Parties in a committed relationship who live in a home that is owned by one of them generally do not tend to treat their relationship as one of landlord and tenant. However, there can be a rough financial reckoning of the benefit of the contribution of one party’s property to accommodate the couple. Account must be taken of the benefit that one party enjoys because the other provides a roof over their head. In addition to the benefit of what may loosely be called “free accommodation” because one party contributes their property as the shared residence, the party who lives in the other’s house has the opportunity to tenant their own house. For example, when the defendant moved into the plaintiff’s home at Stafford she was able to rent her home at Croydon Park.  The plaintiff was able to rent her Stafford property after the parties acquired and moved into the Campbell Terrace property.  There was an accounting of $60 rent per week between February and April 1994 which was offset against the cost of a ring.^[10]  However, in general, the parties did not pay rent to the other and after April 1999 the plaintiff obtained the benefit of accommodation in the Fletcher Parade property that was owned by the defendant.

Campbell Terrace

35. Campbell Terrace was purchased in joint names in April 1994. The deposit of $7,000 was paid by the defendant from her bank account. The plaintiff says that the defendant loaned her one half of the deposit, and there is some evidence of this in an entry on Exhibit 5 where an amount of $3,500 is noted. The plaintiff says that she repaid this one half share. Precisely how and when the amount was paid is not clear. It seems that from time to time the defendant would record amounts that were owed by the plaintiff to her. Documents recording a reduction in the debt of $3,500 are not in evidence. My impression from the evidence of the parties is that the defendant from time to time wrote handwritten reconciliations of amounts that were owed, but there was little formality in how debts were discharged.

36. I do not accept the plaintiff’s evidence that she contributed equally to the mortgage, rates, household expenses and insurance for Campbell Terrace while the parties resided there. The plaintiff’s assertion to this effect in her affidavit was not supported by documents. During the relevant period the defendant tended to have a higher income than the plaintiff. The defendant has attempted to reconstruct from her accounts amounts that she contributed towards Campbell Terrace, including food and other expenses. Some expenses for Campbell Terrace were funded from a joint account. It is impossible to perform any kind of audit. However, the defendant’s greater financial capacity to meet expenses associated with Campbell Terrace and joint living expenses, the evidence produced by the defendant and the absence of reliable countervailing evidence from the plaintiff leads me to conclude that the defendant contributed substantially more than the plaintiff towards the acquisition of Campbell Terrace, its maintenance, and outgoings such as rates. The contributions of the parties towards mortgage repayments in respect of Campbell Terrace after June 1994 appear in Exhibit 8. The defendant tended to make regular deposits. The plaintiff initially made regular deposits but after April 1995 tended to make irregular contributions. Movements in this loan account are a matter of some complexity and it will be necessary to address some significant transactions on that account. In addition to their individual and joint financial contributions towards Campbell Terrace and the loan secured against it, each party contributed to its upkeep. The plaintiff’s father performed jobs around the property and her brother in law repaired the floor in the kitchen.

37. The plaintiff used the Campbell Terrace property as a home office. She was able to rent her property at Stafford and obtain taxation benefits.

Raymont Road 

38. The defendant’s elderly parents came to live with the parties at Campbell Terrace for about nine months in 1995. The parties recognised the potential to subdivide Campbell Terrace and build a home on the small lot that was created on the corner. The defendant was motivated to build a small home upon this lot where her parents could live. The plaintiff supported the defendant in this endeavour, however, the defendant assumed the financial responsibility for it, along with the risks and rewards associated with this development. She engaged an architect to advise in relation to the subdivision. He supervised the required survey. The lot that was subdivided and which I have earlier referred to as Raymont Road had a land value of about $56,000.  The defendant agreed to pay the plaintiff $28,000 for her share of this lot.  The sum was paid in increments and I will later address the use to which the $28,000 was put.  The defendant met the costs associated with the subdivision and the construction of a home on it.  She took out a loan that was secured by a mortgage over Raymont Road.  Understandably, Raymont Road was registered in the defendant’s name. 

39. The plaintiff, having been paid for her interest in the lot and not having assumed any financial obligation in respect of its development, has no real claim to having financially contributed towards its acquisition. The plaintiff had some minor involvement in the development. She spoke with the architect on one or two occasions. She contributed to discussions about the removal of trees from the lot. However, I consider that she has overstated the extent of her involvement with the architect and the surveyor. Her involvement was minor. She may have assisted the plaintiff in the selection of tiles and other household appliances. She may have provided some assistance after the defendant’s parents vacated the property in 1996.

40. Overall, the plaintiff made no significant contribution to the acquisition, maintenance or improvement of the Raymont Road property.  Subject to some account being taken for her minor non-financial contributions, I consider that the Raymont Road property should largely be quarantined from the process of adjustment on a global approach.  If one was to adopt an asset-by-asset approach, then, subject to certain minor adjustments on account of the plaintiff’s contributions, the Raymont Road property should be treated as the defendant’s property because of her financial and non-financial contribution to its development and retention. 

41. Account must be taken of the $28,000 that the plaintiff received for her half share in the lot. The plaintiff submits that she contributed that money to the relationship. The defendant submits that the contention that the sum of $28,000 was returned to the pool of funds is a fallacy, since the money went to the plaintiff and the defendant borrowed $28,000 more than she otherwise would have in order to acquire the plaintiff’s half share in the lot. The use to which the sum of $28,000 was put is not clear. It does not appear that it was retained by the plaintiff in a separate account. It appears that the defendant drew cheques in favour of the plaintiff in November 1995, March 1996 and January 1997. These cheques were in the amount of $1,670.40, $14,042.14 and $1,400 respectively. The total is approximately $17,000. The defendant says that she paid the balance of $11,000 to the plaintiff in cash. How and when these payments were made is in dispute, or at least not clear.

42. Because of her reduced income during many years due to her poor health and studies, the plaintiff was dependant to a significant extent upon the defendant to meet joint expenses and to assist in the plaintiff’s own expenses. Each party used credit cards for individual and joint expenses. The defendant reconciled amounts and seemingly there were adjustments from time to time with the defendant working out what was owed to her by the plaintiff. It seems likely that through this process the defendant either paid for some of the plaintiff’s personal expenses, such as items purchased on a credit card, or paid for the whole of certain joint expenses. It is likely that on occasions she gave the plaintiff amounts of cash to enable the plaintiff to meet individual and joint expenses. Given the informality of the accounting between them I accept that the defendant paid a substantial amount by way of cash payments either to the plaintiff directly or in payment of the plaintiff’s expenses. However, it is also probable that a substantial part of the $28,000 that was paid to the plaintiff in cheques or in cash for her share in the lot that became Raymont Road was used to meet mortgage payments over her Stafford property or was contributed towards joint expenses such as occasional deposits into the “loan leveller account” that was operated in relation to the Campbell Terrace property. The defendant acknowledged that $6,800 of the $14,042.14 was paid to the loan leveller account.

Fletcher Parade

43. This property was purchased by the defendant in February 1999 with the proceeds of the sale of Croydon Park and from her savings.  The parties moved there in about April 1999. 

44. The plaintiff says that she contributed $25,000 to the construction of a swimming pool at this property. She says that this money came from the funds generated by the subdivision that created Raymont Road.  She also says that she and the defendant “contributed equally to the rates, insurance and household expenses.”  I do not accept this evidence.  The pool construction cost approximately $15,600.  A part deposit of $1,550 and pool insurance of $48 was paid for in January 1999 by a cheque drawn on the defendant’s cheque account.  An instalment of $9,360 was paid by bank cheque on 24 November 1999 following a withdrawal from the joint loan account.  A final payment of $4,750 from the same source was made on 30 December 1999.  The plaintiff may apprehend that she largely financed the construction of the pool out of the proceeds of the sale of her interest in Raymont Road.  However, this is not the case in terms of timing or when regard is had to the source of funds.  The pool construction was not financed, at least directly, from the $28,000 that the plaintiff was paid in respect of her half share in the lot that became Raymont Road.  As previously noted, some parts of this payment were in the form of payments into the plaintiff’s personal account.  Some parts were paid into the loan account that was operated in respect of Campbell Terrace.^[11]  Approximately $1,600 was paid for from the defendant’s account whilst $14,110 came from the parties’ joint account.

45. I do not accept that the plaintiff contributed equally to the rates, insurance and household expenses in respect of Fletcher Parade during the first five years that the parties resided at that home.

46. The defendant’s Westpac bank statements indicate that most payments for rates, insurance and household maintenance for the Fletcher Parade property were paid for by the defendant.

The income of the parties and its use

47. Conflict between the parties’ evidence concerning the extent of contributions to household expenses, living expenses and mortgage repayments raises the complicated issue of their respective financial contributions to recurrent expenses and the acquisition of property such as motor vehicles. Viewed broadly, the respective contributions of the parties from time to time reflected their relative incomes and other sources of funds from the occasional sale of assets, such as motor vehicles. In the first year or two of the relationship their incomes were comparable. After that, the plaintiff’s income tended to be substantially less than the defendant’s because the plaintiff was either suffering from chronic fatigue syndrome or engaged in part-time or full-time study. An exception is 2000 when the defendant was ill and away from work for a substantial period. Following the defendant’s resignation from full-time employment in April 2004 the plaintiff became the primary “breadwinner”. Their respective incomes are reflected in the following table:

# Based on defendant’s Tax Returns

* Based on affidavit of plaintiff & Tax Returns of plaintiff

Translates to:

Approximately 52.36% of the total income from defendant

Approximately 47.64% of the total income from plaintiff

Note:  financial year of United Kingdom taxation purposes ends 5 April annually

48. It should be noted that the figure for the financial year ended 30 June 2008 represents the whole of that financial year whereas the relationship ended in late October 2007. Making a pro-rata adjustment for this year (eight months or two-thirds of annual income) one would arrive at the following respective incomes:

These figures are necessarily approximate.  They include the whole of the 1994 financial year, whereas the relationship commenced in February 1994. The figures are based on taxable income which takes into account rental income and the advantages of negative gearing.  The annual scholarship that the plaintiff received was not taxable.  Nevertheless, these figures provide a useful guide about the sources of income that were available from time to time to meet joint and individual expenses.  They translate to approximately 54 per cent of the total income from the defendant and 46 per cent from the plaintiff.

49. The parties established a household financial system. Purchases were made, if possible, by credit card, with credit card bills being paid at the end of each month. There was a Westpac Visa Card and a Diners Card. The parties would go through the monthly credit card statements and work out individual and joint expenditure. Joint expenses and the plaintiff’s portion would usually be transferred from the loan account, as the plaintiff tended to use this as her personal account. The defendant would pay for her portion from her personal account and her portion of the joint expenses by transferring money to the joint account. Notations would be made on statements. Exhibit 12 is an example of a reckoning of accounts. However, these kinds of informal documents are not generally accessible to perform any kind of audit or reconstruction, if that was thought appropriate.

50. The defendant created a spreadsheet for the purpose of these proceedings concerning transactions on the joint account which commenced on 11 June 1994. It records deposits from each of the parties, regular payments of interest and other transactions on the loan account in respect of Campbell Terrace and other withdrawals. The summaries of deposits made by the parties indicates an imbalance in contributions after 1995. In early 1995 the plaintiff ceased to make regular payments. She made a payment of $4,400 in April 1995 possibly from funds sourced from the sale of a car. However, the total deposits for 1995 were $12,369 from the defendant and $6,600 from the plaintiff. In the 1996 calendar year the defendant made regular deposits of $400 into this account and a few other larger payments which totalled $11,178. The plaintiff deposited one payment of $6,800 in that calendar year, apparently sourced from the $28,000 she was owed on account of the sale of her interest in Raymont Road.  In the 1997 year there was a similar pattern of regular payments by the defendant that totalled $14,400.  However, in this year the plaintiff made a major contribution of $17,281 on 22 April 1997.  This was sourced from the proceeds of the sale of her Stafford property.  The net proceeds of sale were approximately $57,000, with $40,000 of it used as a “prepayment” of the loan in respect of Campbell Terrace.  The balance of $17,281 was paid into the joint account.  Shortly afterwards $14,000 was withdrawn from the account and used towards the purchase of a Nissan Pulsar motor vehicle.

51. In the calendar year 1998 the plaintiff and the defendant contributed $1,860 and $10,400 respectively to the joint account. In the calendar year 1999 their contributions were $1,300 and $3,600 respectively. After April 1999 they did not need to deposit as much since deposits were made into the account from rent obtained in respect of the Campbell Terrace property. In May 1999 the Campbell Terrace loan account was drawn down by $45,162. This presumably was to permit some gearing. The defendant was paid $10,938 in April 1999. The plaintiff received two payments totalling $14,700 in May 1999.

52. For the calendar year 2000 the plaintiff and the defendant contributed $6,778 and $17,350 respectively towards the joint account. In 2001 and in following years each contributed smaller and roughly comparable amounts towards the joint account. I have had regard to this spreadsheet, appreciating its limitations. I have also had regard to the defendant’s analysis of transactions on her cheque account. From these sources, bank statements and other exhibits, and the parties’ affidavit and oral evidence it is possible to gain a general impression concerning the availability of funds for joint and individual expenses.

53. Leaving aside unusual transactions such as capital expenditure for the installation of the pool at Fletcher Parade, the purchase of motor vehicles and other one-off items, and having regard to the parties’ available income, I conclude that the defendant made a substantially greater contribution to rates, insurance and household expenses up until the time that she ceased work in April 2004.

54. The defendant was able to save certain amounts from her income. At the commencement of the relationship she had a term deposit of $8,000. On 29 November 1997 there was a payment of $10,539 in reduction of the parties’ loan balance, apparently sourced from the defendant’s savings.  On 27 April 1999 the defendant withdrew $10,938 from the joint “Loan Leveller” account, apparently to assist in settlement of the Fletcher Parade purchase.  The defendant may have regarded this amount as having come out of her “savings”.  It is unnecessary to strictly characterise this payment.  It might be characterised as a repayment of the one-off deposit made a few years earlier.  It might be treated as a payment on account of the differential contributions made by the defendant in the preceding years towards the joint loan and the parties’ joint expenses.

55. In summary, during the years in which the real property in issue was acquired, the defendant, on average, had a higher level of income and made a more substantial contribution towards capital costs, loan repayments and joint household expenditure. This has an obvious relevance to the respective contributions of the parties towards the acquisition, maintenance and improvement of properties, but it is only part of the picture. The defendant’s counsel suggests that particular attention should be paid to the total incomes of the parties at different points. For example, he invites attention to the position at the end of the 1999 financial year. By that time the parties had been in their relationship for five years and Fletcher Parade had been acquired. If one was to bring into account the almost equal income of the parties in the 1994 financial year (noting that their relationship commenced in February 1994) the total taxable income of the plaintiff up to 30 June 1999 was $245,704, whereas the plaintiff’s total taxable income during the same period was $109,303. If account is taken as at the end of the 2005 financial year, then, according to the above table, the defendant’s total income was $399,416 whereas the plaintiff’s total income was $232,977. I take account of the disproportionate income and accordingly greater contribution which the defendant was able to make towards the acquisition and maintenance of properties prior to June 1999. I also take account of the respective income positions prior to the move to the United Kingdom.  

56. It is necessary, however, to have regard to the respective incomes and financial contributions of the parties during their entire relationship. In that regard in the 2005 financial year (the year prior to their departure to the United Kingdom) the plaintiff earned $26,717 whereas the defendant earned only $7,518.  The table of income shows that during the years they were in the United Kingdom the plaintiff was the dominant income earner and, accordingly, made a disproportionate contribution towards household and other joint expenses, and otherwise financially supported the defendant.

Contribution of the sale proceeds of the Stafford property

57. The plaintiff’s property at Stafford was sold in late February 1997 for $115,350.  The defendant contends, and the plaintiff does not contest, that the plaintiff needed to sell the property as the rent that she was receiving from it did not cover her expenses.  After the payment of sale costs and discharging the mortgage, the net sale proceeds of $57,281.22 were received by the plaintiff on 21 April 1997.  Apart from a small amount that was transferred to the joint bank account for living expenses, the net sale proceeds were used by the parties principally to reduce the joint loan in respect of Campbell Terrace from approximately $137,000 to $97,000.  The remaining $17,281 from the proceeds was deposited to the parties’ joint loan account.  The amount of $14,000 was transferred from this joint account on 30 April 1997 to fund the acquisition of a Nissan motor vehicle. 

58. The “prepayment” of $40,000 in respect of the loan for Campbell Terrace amounted to a significant contribution to the parties’ joint assets. It appears that the reduction of approximately 30 per cent in the loan balance was not reflected in a reduction in monthly payments. The parties continued to make payments on account of interest at about the rate that they previously had.^[12]  However, the reduction in the loan balance by $40,000 had a financial benefit in terms of reduced interest liability.  Before April 1997 monthly interest payments were in the vicinity of $1,000.  After the payment of the $40,000 they reduced to approximately $600 in May and June 1997, and reduced further over time, presumably through a continuing reduction of principal or a reduction in interest rates or both.  The bank statements record substantial “prepayments” after April 1997.  By April 1999 the loan balance had reduced to approximately $77,000.  The redraw of $45,162 on 20 April 1999 increased the loan balance of $122,214.  The draw-down of $45,162 was disbursed as to $10,938 to the defendant and sums totalling $14,700 to the plaintiff.  The precise uses to which the redraw of $45,162 were applied is not clear. 

The plaintiff’s submissions in relation to financial contributions

59. The plaintiff’s submissions analyse the parties’ “initial financial contributions”. As to the plaintiff’s initial financial contributions, there is a minor difference between the parties. The defendant says that the plaintiff owed her father $6,000. The plaintiff denies that she owed her father this amount. It is unnecessary to resolve this issue. I infer that the alleged “debt” was an informal arrangement between the plaintiff and her father and if there was in fact a debt, there is no evidence that it was repaid.

60. The plaintiff’s approach to the quantification of initial financial contributions is to bring them into account at the value they were realised, rather than the value of these assets in February 1994. As a result, the plaintiff’s contribution of the Stafford property is valued at $57,616.22, being the net proceeds upon its sale, and the defendant’s Croydon Park property is valued at $258,303.39, being the net proceeds of its sale in October 1998.  Taking account of the value of motor vehicles and savings, the plaintiff submits that the plaintiff’s initial contribution was $62,016.22 (18.38 per cent) and the defendant’s contribution was $275,303.39 (81.62 per cent).  If, instead, the Fletcher Parade property is to be “quarantined” then it would be necessary to adjust the initial contribution figures by reducing the defendant’s contribution by $258,303.39.  On this basis her initial contribution would be $17,000.

61. As to financial contributions during the relationship, the plaintiff relies upon the table of income derived from personal exertion and rental property that became Exhibit 1 in the trial.^[13]  In her submissions she included the total earnings of the parties to 30 June 2008, without adjustment for the tax free component of the plaintiff’s scholarship or other tax benefits.  On this basis the parties’ financial contributions were submitted to be:

This table needs to be adjusted to take account of the fact that it includes income earned between November 2007 and June 2008 after the relationship ended.  With those adjustments, and taking account of the revised table of incomes, the following result would be reached:

62. The plaintiff makes a number of submissions concerning necessary adjustments if the Raymont Road and/or Fletcher Parade properties are considered to be part of the property pool or quarantined.  I shall not set out each of the calculations.  According to the plaintiff’s approach, if both Raymont Road and Fletcher Parade are excluded, then the adjusted financial contributions of the parties would be:

The defendant’s submissions in relation to financial contributions

63. The defendant submits that the plaintiff’s approach is artificial for a number of reasons. The first is its reliance upon income that was earned after October 2007, being a matter that I have already addressed. Next the defendant submits that it is artificial to apply an exchange rate which has the effect of converting income earned in the United Kingdom into Australian dollars as though it was on an equal “dollar for dollar” basis to the income derived by the defendant.  The defence says this fails to take account of the higher living expenses in the United Kingdom compared to Australia.  However, I do not regard this as artificial.  The income earned principally by the plaintiff during the time that the parties lived in the United Kingdom had the dollar value contended for by the plaintiff.  If for some reason the plaintiff had banked her United Kingdom income and drawn on savings or credit facilities from Australia she would have been required to use the same number of Australian dollars to support herself and the defendant.  The parties chose to live in the United Kingdom and were required to meet the living expenses that they in fact incurred.  An assessment of the contributions of the parties from their respective incomes from time to time and throughout the course of the relationship makes it appropriate to convert the parties’ incomes when they lived in the United Kingdom into Australian dollars.

64. The defendant next submits that the plaintiff’s reliance upon the table of incomes “completely disregards the fact that the last of the real property was purchased in 1999 and had been maintained through til 2005 when the parties departed for Wales”.  I do not consider that the plaintiff’s submissions or the table disregards this fact.  In any event, I take account of the nature of the contributions.  The defendant’s greater financial contribution between 1995 and April 2004 (when she ceased full-time employment) should be taken into account in respect of contributions towards the acquisition, maintenance and improvement of properties and contributions towards living expenses during the same period.  However, the incomes of the parties after April 2004, as recorded in the table, are also important in evaluating the respective contributions of the parties.  During the period that the parties lived in the United Kingdom the plaintiff was the primary “breadwinner”.  Although there was some reliance upon credit card facilities and rental income, it was principally the income that the plaintiff earned from personal exertion that paid the parties’ ordinary living expenses and literally put a roof over their heads.  The parties continued to receive rental income and any capital growth from the Campbell Terrace property.  The defendant derived the benefit of rental income from the Fletcher Parade property, being income that she would not have derived had the parties continued to reside there. 

65. In summary, I accept the defendant’s submission that she contributed significantly more than the plaintiff to the couple’s income at the time of the completion of the acquisition of properties and prior to their departure to the United Kingdom.

66. The defendant’s principal submission is that upon an asset-by-asset approach the Fletcher Parade and Raymont Road properties should be treated as the defendant’s properties because, subject to minor adjustments, they were acquired by the defendant with her own resources and maintained and improved by her financial contributions.  The Campbell Terrace property should be treated as equally owned by the parties although, strictly speaking, the defendant made greater contributions than the plaintiff to its acquisition, maintenance and improvement.  If, however, a global approach is adopted then essentially the same result is reached.  The defendant submits that Fletcher Parade and Raymont Road should be quarantined from the adjustment process and each party left with their half share in Campbell Terrace. 

Evaluation of the parties’ financial contributions

67. One approach would be largely to quarantine the Fletcher Parade and Raymont Road properties from the property adjustment process in arriving at an evaluation of the parties’ financial contributions to the assets of the relationship.  This would require adjustments on account of financial contributions made by the plaintiff to the acquisition, maintenance and improvement of those properties.  Under such an approach, the defendant’s financial contributions to the Fletcher Parade and Raymont Road properties would not be taken into account as contributions to the relationship.  The plaintiff’s non-financial contributions to those properties will also need to be later evaluated.

68. The adjustments required if Fletcher Parade and Raymont Road are “quarantined” include:

(a)the defendant’s initial contributions to the acquisition of those properties and payments made by her for rates (totalling $1,926), insurance and maintenance of those properties from her personal account or from the joint account;

(b)the contributions of the parties towards the cost of installing the swimming pool at Fletcher Parade of approximately $15,000.

In essence, if these properties are “quarantined”, the defendant should not be able to claim her contributions or her share of joint contributions to these properties as contributions to the parties’ asset pool and the plaintiff should be given credit for her contributions to those properties.

69. Account is required of the use made by the plaintiff of the $28,000 proceeds from the sale of her share in the lot that became Raymont Road.  However, these funds were used for various purposes.  They seem to have been used for living expenses and also to have funded certain irregular deposits to the joint account, for example the $6,800 paid on 20 March 1996.  There is no evidence that part of the $28,000 was retained by the plaintiff in a separate savings account or fund.  It is possible that it was converted into shares or savings, but I infer that it was probably expended on her own personal expenses and joint household and other joint expenses, and that a substantial part of it was informally accounted for in the manner previously described.  In short, the $28,000 was contributed to joint expenses or the plaintiff’s cost of living.

70. I have regard to sources of income and other sources of funds, such as the sale of items and the use of term deposits. I take account of the deposit of $10,539 by the defendant in November 1997 in reduction of the loan balance and her withdrawal of $10,938 in April 1999 from the “Loan Leveller” account.

71. Although it is open to adopt an asset-by-asset approach, or largely to quarantine both the Fletcher Parade and the Raymont Road properties from the process of adjustment under a global approach, I am not inclined to do so.  I am, however, prepared to quarantine the Raymond Road property, subject to the adjustments that I have discussed, since it was acquired, improved and maintained as the defendant’s own property.  She assumed all of the risk associated with its development and was solely responsible for the mortgage over it.  The parties treated it as the defendant’s property, and it should be treated as the defendant’s property for the purposes of these proceedings.

72. The Fletcher Parade property is of a different character. It was the property that the parties used as their home, and was property of the relationship, despite it being registered solely in the defendant’s name. My inclusion of it in the property pool for the purposes of the process of adjustment, rather than quarantining it, is one thing. I still must have regard to the nature, form and characteristics of the property, and the parties’ contributions to it.

73. On the basis of the parties’ agreement that I should be concerned with an adjustment of the real properties owned by the parties, I treat the Raymond Road property as a property that should remain owned by the defendant.  In other words, I “quarantine” it, subject to taking account of the very minor financial and non-financial contributions made by the plaintiff to it, and not treating the defendant’s contributions to it as contributions to the property of the relationship or the relationship.  I then proceed to evaluate the parties’ respective contributions to the Campbell Terrace and Fletcher Parade properties. 

74. In doing so, I apply the principles that I have earlier discussed, including the need to take account of the origin and nature of the different assets. In making a value judgment of the parties’ contribution-based entitlements to the “pool of assets” I take account of the fact that I am not evaluating contributions to a business partnership. I am evaluating contributions to a personal relationship in which each party had a commitment to the other, and an expectation that they would continue to share resources and support each other. The material benefits which one provided to the other, such as the roof that was over their heads when they lived together at Fletcher Parade, was something of real value, but it was not something which was entered on a running account of the kind that might apply with drawings in a business partnership.

75. Still, the process of evaluation requires consideration of the origin and nature of the different assets. Account must be taken of the very different initial contributions of the parties. Account must be taken of the different incomes of the parties during the period when Campbell Terrace and Fletcher Parade were acquired, and that it was the generally higher income of the defendant during these years and her use of the proceeds of Croydon Park that permitted these properties to be acquired and retained.  Without her financial contribution the parties would not have been able to acquire these properties and move into Fletcher Parade, thus allowing Campbell Terrace to be rented.  None of this would have been possible without the defendant’s contribution of her capital from the proceeds of the sale of Croydon Park, and her preparedness to permit the property that she acquired with those proceeds to be used as the parties’ home. 

76. I take account of the parties’ respective financial contributions to the acquisition, maintenance and improvement of Campbell Terrace and Fletcher Parade. I also take account of their financial contributions to their shared and individual expenses, and how this changed over time. I take account of the fact that reduced incomes were, in part, due to periods of illness, and also to choices that were made about careers and employment.

Non-financial contributions

77. In oral submissions Mr McGregor of Counsel commenced with the general submission that during the course of the parties’ thirteen and a half year relationship their “respective financial and non-financial contributions ebbed and flowed” and that “their respective needs also ebbed and flowed”. He characterised the defendant’s submissions as placing excessive reliance upon financial contributions towards the acquisition of property whereas, in truth, this was a long-term relationship in which the parties had individual and shared aspirations for their future.

78. Whether or not the defendant intended to semi-retire after 2004 and be largely dependent upon the plaintiff’s income from paid academic employment, or to re-enter the workforce in business or employment that would result in each of the parties having a similar income is a vexed question.  Perhaps if the relationship had continued and the parties had continued to live in the United Kingdom together, then the defendant would have developed her business further or pursued, in time, some other form of employment.  As matters have transpired, she has re-entered the workforce in Australia and in recent years has gained secure employment and promotion.  For present purposes, the relevant point is that the defendant was prepared to support the plaintiff prior to 2004 in the plaintiff’s acquisition of post-graduate academic qualifications and an enhanced earning capacity because she loved the plaintiff and, to some extent, because such a course was likely to enhance their future financial security. 

79. The defendant made a significant welfare contribution to the plaintiff during the plaintiff’s recovery from chronic fatigue syndrome and supported the plaintiff gaining her academic qualifications. By the same token, the plaintiff supported the defendant financially and otherwise during the defendant’s illness in 2000, and supported the defendant in her choice of gaining qualifications as a massage therapist before they departed to the United Kingdom.

80. I have had regard to the affidavit and oral evidence concerning the non-financial contributions of the parties to each other’s welfare and to their joint welfare. This includes the division of household chores and to the parties’ contributions to the maintenance and improvement of properties. Although there were some factual disputes—for example, in respect of the extent of the plaintiff’s non-financial contribution to the subdivision and development of Raymont Road—those disputes do not significantly affect an evaluation of the parties’ respective non-financial contributions.  Each contributed to household tasks.  At times when one was ill the other would assume additional burdens.  During times when one of the parties was busy with work or studies they would have had less time to contribute to household tasks.  The defendant brought to the domestic relationship organisational and other skills, and seemed to take the lead in respect of financial management.  I apprehend that the plaintiff did not have the same interest in financial matters and was often preoccupied with her studies and enhancing her creative talents.  The defendant was supportive of the plaintiff in her creative and academic pursuits.  The plaintiff’s preoccupation with such pursuits came at a cost in terms of income and in terms of available time to contribute to household chores and emotional support for the defendant.  However, I do not consider that the plaintiff’s pursuit of these creative and academic interests should result in a differential evaluation of the parties’ non-financial contributions. 

81. Each of the parties supported the other during their long relationship. Each brought different strengths to the relationship. The plaintiff was entitled to pursue higher academic qualifications, creative writing and other creative interests, and did so with the defendant’s encouragement. It would be inappropriate to devalue the plaintiff’s non-financial contributions to the relationship because in pursuing these interests she was not available to contribute to additional household chores or to provide additional emotional support to the defendant.

82. The defendant made a significant contribution to the plaintiff’s welfare during the period that the plaintiff suffered from acute chronic fatigue syndrome and over the substantial period that followed when she re-entered the workforce and pursued her postgraduate qualifications. The defendant was very ill for a shorter period and the defendant’s evidence suggests that the plaintiff was not as supportive as she might have been in caring for the defendant during her recovery. It seems that the plaintiff was busy with work and study and some of the defendant’s needs were met by neighbours. After she recovered, the defendant provided emotional and other support for the plaintiff and continued to do so whilst working in a demanding full-time job.  After she ceased full-time employment the plaintiff supported her aspirations in gaining qualifications as a massage therapist. 

83. The parties attempted to become parents and the plaintiff underwent artificial insemination treatment and then IVF treatment. Participation in those programs would have been emotionally demanding for both parties, particularly for the plaintiff who underwent the procedures.

84. Neither party invites me to perform any kind of accounting exercise in evaluating the benefits which were derived by each of the parties from the non-financial contributions made by the other. The Act does not require me to perform such an exercise nor to make adjustments on account of matters such as the number of meals that one party cooked for the other. The parties’ relationship was not one of domestic service, but a mutually-supportive relationship in which both parties made significant contributions to their mutual welfare, supported their partner’s aspirations, and shared aspirations for a happy and financially-secure future. Each supported the other during periods of misfortune. I do not consider that their respective non-financial contributions should be evaluated differently.

Sections 293-295

85. Section 293 requires me to consider the effect of any proposed order on the earning capacity of the parties. I do not consider that any order will affect the earning capacity of the parties in respect of income from personal exertion. No issue of child support arises (s 294). Section 295 does not apply.

Conclusion based on contribution-based entitlements in accordance with ss 291-295

86. Having regard to their respective contributions, including the circumstances in which they were made, and the form they took, I consider that the parties’ contributions to the pool of assets constituted by Campbell Terrace and Fletcher Parade should be evaluated at 30% to the plaintiff and 70% to the defendant.

Identification and assessment of matters in ss 297-309

87. The third step in the process discussed by the authorities is the identification and assessment of the factors in ss 297-309 of the Act to determine an adjustment to the parties’ contribution-based entitlements.

Age, health, resources and employment capacity (ss 297 and 298)

88. The plaintiff is aged 49 and the defendant is aged 55. The plaintiff’s income equates to approximately $62,000. Given the cost of living in the United Kingdom this is not a grand salary.  However, the plaintiff has chosen to pursue an academic career in her chosen field, and chosen to live in the United Kingdom.  She is likely to live and work there for the foreseeable future.  The defendant recently achieved a promotion so that she currently earns a gross salary of $125,000.

89. The parties currently share the income derived from the rental of the Campbell Terrace property. The defendant has rental income from Raymont Road which is used to pay mortgage repayments and other costs associated with maintaining that property.  She has the use of the Fletcher Parade property as her residence.  The plaintiff rents her accommodation in the United Kingdom.

Sections 299-302

90. Neither party has the care of a child. Each is responsible for their own support and neither apparently has a responsibility to support any other person. Government assistance is not relevant.

Appropriate standard of living

91. Section 303 requires me to consider what standard of living is reasonable for each of the parties in all the circumstances. Neither party has a low standard of living. Neither contends that s 303 is particularly relevant. I have already considered their respective living arrangements. Whilst the defendant has the benefit of living in her own unencumbered property and the plaintiff is in rental accommodation, this is largely the result of the defendant having owned a practically unencumbered property in Sydney prior to the commencement of the relationship and the parties’ different choices about pursuing full-time employment at different stages of their relationship.  The property in which the defendant now resides was purchased with the proceeds of the Sydney property. 

Contributions to income and earning capacity

92. The defendant made a significant contribution to the plaintiff’s capacity to earn income in her present form of employment. She supported the plaintiff during periods of part-time and full-time study. The defendant studied for a Masters degree between 1997 and 2000. She remained in full-time employment. The plaintiff supported the defendant’s acquisition of qualifications and experience as a massage therapist, and this is a field in which the defendant hopes to earn an income in the future.

Length of relationship

93. The relationship was for a period of thirteen and a half years. In the three and a half years since it ended the parties have established separate lives in different countries, save for their continuing co-ownership of Campbell Terrace.

Effect of the relationship on earning capacity

94. Neither party contends that the relationship has affected their respective earning capacities.

Financial circumstances of cohabitation

95. Neither party is cohabiting with another person.

Child maintenance

96. This issue does not arise.

Other facts and circumstances

97. Section 309 requires the Court to consider any fact or circumstance the Court considers the justice of the case requires to be taken into account.

98. The defendant submits that “the extended benefits of which [sic] the plaintiff has obtained as a result of the support of the defendant ought to be taken into account” and that it would be a denial of justice not to provide the defendant with the vast majority of the interest in the three properties that are currently owned or co-owned by her.  I have already taken account of the benefits which the plaintiff obtained from the defendant’s financial and non-financial contributions.  I have taken account of the many years during which the defendant worked hard in full-time employment so as to secure her financial future.  However, I do not consider that I need to revisit this issue.  The defendant’s hard work is reflected in the acquisition of properties in her own name and in the acquisition of Campbell Terrace.  I have taken this into account in assessing contribution-based entitlements.  It does not need to be counted again. 

99. The defendant submits that prior to 2005 the plaintiff was studying and working on a limited basis. I have already taken this into account. I also take into account that full-time study and the completion of a doctorate is time-consuming and demanding. The plaintiff undertook this study for her own personal fulfilment. It also enhanced her capacity to obtain employment in that field. I have taken into account, in arriving at contribution-based entitlements, the work and study that each party undertook, and their motivations in undertaking them. I do not consider that these matters require further adjustment.

100. I take into account that the defendant was prepared to move with the plaintiff to the United Kingdom.  Her support of the plaintiff in this regard is commendable.  However, it was part and parcel of a mutually-supportive relationship.  When they moved to the United Kingdom the parties anticipated beginning a new phase in their relationship.  The plaintiff was to be the principal breadwinner and the defendant would establish herself in her preferred career as a massage therapist.  These things came to pass.  However, life in the United Kingdom was more challenging and more expensive than they anticipated.  I do not consider that the defendant’s choice in moving to the United Kingdom warrants any adjustment pursuant to s 309.

101. Having identified and assessed the matters referred to in ss 297-309, I do not consider that they justify an adjustment to the parties’ contribution-based entitlements.

Fourth step – consideration of whether the result is just and equitable

102. The final step is to consider whether the result that I have arrived at is just and equitable. The result I have arrived at requires an adjustment to reflect a 30%:70% division of the net value of Campbell Terrace and Fletcher Parade.  The net equity (before sale costs) of Campbell Terrace is $387,842   ($510,000 plus pre-paid funds of $5442 less mortgage debt of $127,580).  Fletcher Parade is valued at $640,000.  The value of the net assets constituted by Campbell Terrace and Fletcher Parade is $1,027,842.  A 30 per cent share of this pool is $308,353.  I consider a result that leaves the plaintiff with a sum of that order is just and equitable.

103. On either an asset-by-asset approach or a global approach it is just and equitable that the defendant should retain ownership of Raymont Road and Fletcher Parade, given her financial contribution to their acquisition, maintenance and improvement and her disproportionate financial contribution to the acquisition, maintenance and improvement of Campbell Terrace, at least until 2004, by which time it was rented and the rental income from it was practically sufficient to meet mortgage repayments and other expenses. The disproportionate financial contribution that the defendant made to the acquisition of the three properties is not matched by the plaintiff’s financial contributions to those properties or to the relationship.

104. A result that leaves the defendant with the properties that she owns in her own name and the balance of the proceeds of the sale of Campbell Terrace after payment of the plaintiff’s entitlement of $308,353 is not unjust or inequitable. In part it reflects the defendant’s substantial initial financial contributions to the assets of the relationship. Viewed differently, it reflects the fact that she owned her own home at the start of the relationship, effectively unencumbered, and that it is just that she should take its replacement, namely Fletcher Parade, out of the relationship. The plaintiff had the benefit of living in that property for several years “rent free”. It is also just that the defendant should retain Raymont Road, with its mortgage, since she purchased the plaintiff’s interest in the land and assumed full financial responsibility for the mortgage and the construction of the house upon it.

105. Taking full account of the plaintiff’s financial contributions to the three properties and to the relationship, and her non-financial contributions, it might nevertheless be said on the defendant’s part that the plaintiff should not receive more than the value of her half interest in Campbell Terrace (namely $193,921), by way of property adjustment order.

106. Leaving aside chattels, savings, shares and financial resources which the parties agree should remain as they are, the result I have arrived at after the three steps leaves the plaintiff with approximately $114,000 more than the value of her half share of the Campbell Terrace property. As presently advised she does not seek a transfer of the defendant’s half interest in that property to her upon payment of an amount to the defendant. I shall assume that Campbell Terrace will be sold and that the plaintiff will derive approximately $300,000 after the payment of her share of sale costs. That result strikes me as just and equitable. It does not seem to be unjust or inequitable.

107. As a check on the result that I have reached, I have considered the likely outcome on an asset-by-asset approach. On such an approach there would be some relatively small adjustments on account of the plaintiff’s financial and non-financial contributions to the Raymont Road and Fletcher Parade properties, but each of those properties would remain with the defendant because of her overwhelming financial contribution to their acquisition, maintenance and improvement. Separate evaluation of the parties’ respective contributions to Campbell Terrace and to the relationship in general tends to support the defendant’s submission that there should be no adjustment of their half-interest in Campbell Terrace. However, taking account of the adjustments required to be made in favour of the plaintiff in respect of matters such as her contributions to the Raymont Road and Fletcher Parade properties, the use made of the proceeds of sale of her Stafford property and the other financial contributions that she made to the relationship, particularly in its final years, I consider that payment to her of the value of her half-interest in Campbell Terrace, namely $193,921 (or one half of the proceeds of its sale) would not be a just result. An asset-by-asset approach would be likely to yield a result similar to the one that I have reached.

108. The result I have reached on the basis of a 30%:70% division of Campbell Terrace and Fletcher Parade roughly equates to a 50%:50% division of Campbell Terrace ($193,921) and a 15% apportionment to the plaintiff of Fletcher Parade ($96,000). This seems a just and equitable result.

109. During many of the years of the relationship the plaintiff was unable or unwilling to exploit her earning capacity because she was sick or chose to study. During those years she enjoyed the financial and emotional support of the defendant. By the same token, the defendant enjoyed the financial support of the plaintiff, particularly after the defendant ceased full-time employment in April 2004 and during their time in the United Kingdom as the defendant sought to establish herself in a new area of work in a foreign country.  Still, if the plaintiff had not enjoyed the substantial support of the defendant between 1995 and 2004 she would not have been able to pursue her studies and further qualifications, and would have been forced to sell her Stafford home sooner than she did.

110. A result that leaves the plaintiff with approximately $300,000 from the proceeds of sale of the jointly-owned property at Campbell Terrace will leave the plaintiff with far less assets than the defendant. That result is not unjust or inequitable. It fairly reflects the parties’ contribution-based entitlements and the relevant matters under the Act that inform a just and equitable adjustment of property.

Orders

111. I will hear the parties as to the terms of an order that will end their financial relationship. I expect that the orders will provide for the sale of Campbell Terrace by an agreed process and the accounting to the plaintiff of $308,353 of the net proceeds of its sale, less her 30 per cent share of sale costs. However, the parties should be given the opportunity to avoid the costs associated with the sale of Campbell Terrace through a private sale or, failing that, the appointment of a statutory trust for sale. If one party seeks the transfer of the other’s interest in Campbell Terrace upon payment of a specified amount, then the orders should provide for this.

112. In general terms, the orders should otherwise provide for:

(a)The defendant to pay to the plaintiff the sum of $308,353 by way of property adjustment pursuant to Pt 19 of the Property Law Act 1974 (Qld) in exchange for the transfer to the defendant of the plaintiff’s interest in the Campbell Terrace property.

(b)That amount to be paid within a specified period, provisionally 90 days of the date of the orders.

(c)If the defendant fails to make in full the payment referred to in order (b), unless the parties agree otherwise in writing, the Campbell Terrace property vest in a trustee to be agreed by the parties, or, failing agreement, as ordered by the court on a statutory trust for sale.

(d)The trustee shall distribute from the net proceeds of sale the costs of the trustee, $308,353 (less 30 per cent of sale costs) to the plaintiff and the balance to the defendant.

(e)The plaintiff otherwise retain for her benefit absolutely all assets in her possession, power or control including:

(i)personal chattels;

(ii)savings;

(iii)shares;

(iv)investments.

(f)The defendant otherwise retain for her benefit absolutely all assets in her possession, power or control including:

(i)personal chattels;

(ii)savings;

(iii)shares;

4. investments;
5. the Raymont Road property;
6. the Fletcher Parade property.

113. I direct the parties to submit draft minutes of order within 14 days.