FF v BB & ZB [2007] QDC 29

DISTRICT COURT OF QUEENSLAND CITATION: FF v BB and Anor [2007] QDC 029 PARTIES: FF Applicant v BB First Respondent and ZB Second Respondent FILE NO/S: 569/05 PROCEEDING: Application ORIGINATING COURT: District Court Southport DELIVERED ON: 9 March 2007 DELIVERED AT: Southport HEARING DATE: 19 and 20 February 2007 JUDGE: Newton DCJ ORDER: That a property adjustment order be made in favour of the Applicant and that the First Respondent pay to the Applicant the sum of $62,500.00 within 30 days. CATCHWORDS: PROPERTY LAW – DE FACTO RELATIONSHIP – ADJUSTMENT OF PROPERTY INTEREST – Apportionment between the parties COUNSEL: Mr S Keliher – for the Applicant Mr M E Pope – for the First and Second Respondents SOLICITORS: Givens Legal Action Solicitors – for the Applicant Pilgrim Geddes – for the First and Second Respondents -- 1 of 8 -- 2 [1] FF applies for a property adjustment order under s.286 of the Property Law Act 1974 (“the Act”) so that he and BB each receive half of the assets of their de facto relationship, or the monetary equivalent of same. [2] At the commencement of the hearing of this application leave was sought to amend the originating application to add an alternative basis for relief. Thus, a declaration was sought that BB’s father (ZB) and/or both he and BB hold 25 per cent of their interest in Lot 26 Wagonwheel Road, Boyland, on constructive trust for FF, together with a consequential order that an amount equivalent to same be paid to him. [3] Leave was granted to amend the originating application accordingly. [4] FF and BB agree that their de facto relationship endured for approximately four years and five months. It commenced in November 2000 and terminated upon their separation on 9 April 2005. [5] Neither of the de facto partners brought significant assets into the relationship and both received Centrelink benefits during much of its duration. BB received a compensation payment of $28,000.00 in December 2002 as a result of injuries sustained by her in a motor vehicle accident which occurred in October 2001. This money was unwisely dissipated by BB and FF during their relationship on living expenses, luxuries, novelties, holidays, clothes, compact discs, the purchase of a 1982 Toyota Corolla motor vehicle, car expenses, furniture and the like. [6] On 30 May 2003, ZB and BB signed a contract to purchase land at Lot 26 Wagonwheel Drive, Boyland. The purchase price was $125,000.00. At that time they and FF were living in rented accommodation at Arunta Drive, Mt Nathan. [7] Neither BB or FF contributed to the purchase costs of the Boyland property. ZB paid the purchase price from funds resulting from the sale of his Perth property together with a mortgage with the Westpac Bank for approximately $70,000.00 - $80,000.00. [8] After the land had been purchased ZB had his daughter’s name included on the title so that each had a half share of the property as tenants in common. FF claims to be entitled to fifty per cent of BB’s half share. The property was sold in March 2006 -- 2 of 8 -- 3 for $525,000.00. Thus he seeks an order that he is entitled to half of $262,500.00 namely $131,250.00. [9] His claim is based largely on the physical labour he provided in assisting in the construction of a residence on Lot 26. Neither he nor BB made any financial contribution to the construction which was funded by ZB when it was necessary to engage contractors to perform tasks that could not be carried out by ZB himself. [10] The main issue, then, in the application concerns the nature, extent and value of the contribution made by FF to the construction of the residence on Lot 26. [11] FF states in his affidavit (filed on 11 October 2005) that he and ZB began work on the construction in June 2003. He claims that they worked seven days a week from 5:30am to 4:00pm. This extended over a period of some nine months until March 2004 when the parties moved in. The work was very physical and included mixing concrete by hand in a wheel barrow and land clearing. [12] ZB in his affidavit (filed on 25 November 2005) states that because FF had no qualifications in the building trade he was very limited in the things with which he could provide assistance. ZB acknowledges the assistance of FF in clearing land, the positioning of frames and trusses and the construction of the roof. However, he states that contractors were engaged for the survey footings, under slab plumbing, electrical supply, digging and pouring of footings and slab, plumbing (both rough in and fit out), bricklaying, plastering, waterproofing of bathrooms, tiling, painting, and carpentry (soffits and architraves, hanging doors). [13] Oral evidence was given by Mr Scarcella, a plumber, that FF had completed some tiling in a bathroom as well as hooking up a pump, cutting pipes, digging and carrying out some grouting. This work was carried out over some two and half days. [14] Unfortunately, it is not possible to precisely determine the extent of FF’s labouring. It is highly unlikely that he worked the hours he claims every day of the week for nine months. Indeed, ZB described this claim as absurd as he himself did not work such hours. As FF worked under the direction of ZB, it seems improbable, to say the least, that FF was occupied as claimed in ZB’s absence. -- 3 of 8 -- 4 [15] Little assistance is gained on this point from the evidence of BB. She states that FF did volunteer to assist her father but his help was limited as he had no building, trade or prior labouring skills. [16] Similarly, it is also not possible to accurately describe the nature of any work performed by FF in terms of its levels of skill. It seems that some degree of proficiency was exhibited by FF in his tiling of the bathroom. However, if he was restricted (as ZB claims) to merely holding the ladder or passing materials to ZB then this would not seem to require very much skill at all. [17] The only evidence as to the value of work such as that performed by FF is to be found in the testimony of Mr Middleton, a concretor, who recalled FF assisting him for about three days. The going rate for such work as done by FF was approximately $200.00 per day. The work included laying steel and boxing it, “prepping underneath”, tidying up where machinery had been, general work around the slab site and making sure access to the site was available. [18] If FF worked on the construction of the residence for the time he claims, that is seven days a week for nine months, and if he were to be paid at a rate of $200.00 per day, his efforts would be valued at $50,400.00. This assumes a 36 week period. I do not know, there being no evidence on this point, whether the suggested rate is a gross amount or a net amount after tax has been deducted. [19] It seems that ZB paid all the rates for Lot 26, there being no contributions from either FF or BB. Some level of maintenance was carried out on the property by the de facto partners after January 2004 when ZB returned to Perth temporarily. Some monies were paid into ZB’s Westpac account by the couple although there is no documentary evidence in this regard at all. Whether their monies were by way of rent is not entirely clear. There was no formal rental agreement in existence, although a partially completed agreement of doubtful provenance was placed into evidence. According to BB it was agreed that she and FF would pay $180 per week, but she conceded that “unfortunately, not all rent was paid to my father by [FF] or myself nor was what we paid to my father by way of rent always paid in full.” (Affidavit of BB filed on 25 November 2005, paragraph 38). -- 4 of 8 -- 5 [20] FF denied that the $180.00 a week paid by BB and himself to ZB was by way of rent. His evidence (transcript p 17, line 45) was that because ZB had run out of funds after he went to Perth once the house had been constructed, the de facto partners paid funds into a mortgage account in ZB’s name. [21] The evidence fails to disclose how much money was paid by FF and BB into ZB’s loan account and over what period. This aspect of the case has some importance, notably in respect of assessing the entitlement of FF to an order under s.286 of the Property Law Act 1974, but also in relation to that part of the application alleging a constructive trust. Any agreement requiring FF to contribute to rent paid in respect of Lot 26 would appear to be incompatible with his contention concerning the existence of a constructive trust. [22] The Court in an application by a former de facto partner for a property adjustment order must, in deciding what is just and equitable, consider a number of matters. This judgment has thus far largely focussed upon the financial and non-financial contributions made directly or indirectly by or for the de facto partners to the acquisition and improvement of Lot 26. This is required by s.291(1) of the act. The financial resources of both FF and BB must also be considered (s.291(1)(b)). At separation neither had any significant assets, largely because both were unemployed during the major part of their relationship. [23] The contributions, including any homemaking or parenting contributions, made to the welfare of the former de facto partners and their child must be considered. (s.292(1) of the Act). BB is the full time carer for KNF (the child of the relationship). In her oral testimony she stated: “We were both unemployed, we both had the time to look after him, somewhat equally. I feel that I shared more of his maternal care in some areas, but, yeah, it was relatively ample. He fathered him when he could and where he felt he needed to.” [24] In her statement BB complains that FF has not been paying the required child support. However, this aspect of the evidence was not further pursued perhaps because in her affidavit filed on 16 February 2007 BB acknowledges that FF commenced paying child support on 10 December 2005. For the period from 1 September 2006 to 30 November 2007 the monthly amount that FF should pay is $182.33. -- 5 of 8 -- 6 [25] The Court is required to consider the effect of any proposed order on the earning capacity of the de facto partners (s.293 of the Act). It was not suggested that any Order proposed in this matter would affect the earning capacity of either FF or BB. FF is currently working as a hairdresser, while BB intends to work as a spiritual healer. [26] The Court must consider any child support under the Child Support (Assessment) Act 1989 (Cth) provided, or to be provided by a de facto partner for a child of the de facto partners (s.294 of the Act). I have previously referred to this in relation to contributions to family welfare. I have no reason to find that FF is not presently meeting his obligations to pay child support in accordance with the assessment made by the Child Support Agency. [27] The Court is required to consider the age and state of health of each of the de facto partners (s.297 of the Act). FF is currently 44 years of age, his date of birth being 8 February 1963. BB is currently 31 years of age, her date of birth being 22 September 1975. Both are said to be in good health. It may be appropriate at this stage to note that the child of the de facto partners, KNF, does have a medical condition, namely Nephrotic Syndrome. KNF was born on 28 December 2003 and was aged 15½ months when FF and BB separated. According to the most recent affidavit of BB, KNF has been treated at the Gold Coast Hospital on approximately 11 occasions since 10 September 2006. He is seen frequently by his general practitioner to have his condition monitored. He is presently having a weekly blood test at the John Flynn Hospital. Eight such tests are to be performed. The condition may last for his entire life. No evidence was placed before me as to the nature and severity of his condition. He has been prescribed the drug Prednisolone. [28] Section 298 of the Act requires the Court to consider the income, property and financial resources of each of the de facto partners, together with the physical and mental capacity of each of them for appropriate gainful employment. BB receives a fortnightly allowance from Centrelink of $517.90, together with a fortnightly family assistance allowance of $369.04. Her total fortnightly benefits therefore total $886.94, which is $443.47 per week. She has yet to earn income from her work as a spiritual healer. This will vary according to the number of clients. FF is a hairdresser and has also done an apprenticeship as a graphic designer. As at the date of the filing of his affidavit on 11 October 2005 he was an apprentice -- 6 of 8 -- 7 locksmith. Prior to that he was working as a nursery hand at the Mt Nathan Nursery, earning $397.00 (net) per week. There seems no reason why FF could not obtain gainful employment. [29] The de facto partners do not have significant assets. BB complains that on separation FF took a Toyota Corolla motor vehicle estimated to be worth $2,000.00, together with some furniture ($3,000.00 estimated value) and a collection of CDs ($1,500.00). FF counters these allegations by claiming that he already had a car at the commencement of the relationship and received an insurance payment after the vehicle had been stolen. He also says that he brought furniture into the relationship which he values at $1,000.00, and that he owned a collection of CDs. In the result I think FF has probably taken a reasonable share of the assets of the de facto partners, and if anything, may have been somewhat generous to himself. The only asset of any significant value in this matter is the half share in Lot 26 held by BB. [30] The Court must consider whether either de facto partner has the care of a child of the de facto partners who is under 18 years (s.299 of the Act). I have already noted that BB is the full time carer for KNF and that FF is at present paying $182.30 per month in child support. [31] Section 300 of the Act requires the Court to consider the commitments of each of the de facto partners necessary to enable the de facto partners to support himself or herself, and a child or another person whom the de facto partner has a duty to maintain. The only relevant commitment in this regard is that of FF in relation to his son. Appropriate arrangements exist in this regard. [32] There is no responsibility of either FF or BB to support another person other than KNF (s.301 of the Act). [33] In relation to the matters identified in s.302 as comprising government assistance, I have noted the receipt by ZB of Centrelink payments made in respect of herself and KNF. There has been no evidence as to any other relevant pension, allowance or benefit. BB seems to cope financially on such payments and has the option of earning income from her work as a spiritual healer. Both de facto partners are able to maintain a modest but adequate standard of living in all the circumstances (s.303 of the Act). -- 7 of 8 -- 8 [34] In assessing the claim brought by FF in these proceedings, two points clearly arise. Firstly, he has made no financial contribution to the asset comprising Lot 26. Secondly, it is only the contribution made by him in the construction of the residence of Lot 26 that entitles him to an order under Part 10 of the Act. There is no other asset of value that arises for consideration. The pool is therefore $255,000.00 and FF claims $125,000.00 which is 49 per cent of the pool. Adopting a broad brush approach, which in the state of the evidence in this matter is the only possible approach available to the Court, I have come to the view that in order to facilitate a just and equitable property distribution in relation to the de facto partners and their child, FF should receive the sum of $62,500.00. [35] The claim seeking a declaration that ZB and/or BB and ZB hold 25 per cent of their interest in Lot 26 Wagonwheel Road, Boyland, on constructive trust for FF, and a consequential order that an amount equivalent to same be paid to FF must be dismissed. The reason for this is that I am satisfied that there was no agreement between the parties that FF was to receive a quarter share in the property in return for his assistance in constructing the residence. To the contrary, as the oral evidence of FF makes clear, he “just presumed that [he] was going to get a quarter share of the property for putting in the hard work”. (Transcript p 15 line 35). [36] I make the following Orders: 1. That a property adjustment order be made in favour of the applicant FF and that the first respondent, BB, pay to the applicant within 30 days of the date of this order the sum of $62,500.00. 2. That there be no order as to costs. -- 8 of 8 --