C v S [2002] QDC 194

DISTRICT COURT OF QUEENSLAND CITATION: C v S [2002] QDC 194 PARTIES: C – Applicant AND S – Respondent FILE NO/S: 37/01 DIVISION: District Court PROCEEDING: Application for property settlement orders – defacto relationship ORIGINATING COURT: District Court at Townsville DELIVERED ON: 5.6.02 DELIVERED AT: Townsville HEARING DATE: 28.5.02 JUDGE: CF Wall QC DCJ ORDER: 60/40 adjustment in favour of respondent CATCHWORDS: STATUTES JUDICIALLY CONSIDERED: DEFACTO RELATIONSHIP – PROPERTY SETTLEMENT COSTS-POWER TO AWARD Property settlement under Property Law Act – apportionment between the parties – wh imbalance in respective contributions to relationship – wh superannuation resources subject to apportionment – costs – no grounds to depart from normal rule Property Law Act 1974 ss 263,291,292(1)(a), 297, 298, 300 Uniform Civil Procedure Rules 1999 COUNSEL: C. White for the applicant G. Riethmuller for the respondent SOLICITORS: Roberts Nehmer McKee for the applicant Ruddy Tomlins & Baxter for the respondent -- 1 of 9 -- State Reporting Bureau Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. 4Th Floor, The Law Courts Complex, George Street, Brisbane Q. 4000. Telephone: (07) 3247 4360. Facsimile: (07) 3247 5532 DISTRICT COURT CIVIL JURISDICTION JUDGE C F WALL QC No D37 of 2001 C Applicant and S Respondent TOWNSVILLE ..DATE 05/06/2002 JUDGMENT 1 REVISED COPIES ISSUED State Reporting Bureau Date: 12 / 6 / 02 -- 2 of 9 -- 05062002 T1-2/JPP M/T TSVDC1/2002 (Wall DCJ) 1 JUDGMENT 2 HIS HONOUR: This is an application for orders in the nature of property settlement orders under the Property Law Act. The parties have reached agreement on many of the facts and figures relevant to the application and their relationship, and these were outlined by Mr Riethmuller at the commencement of the hearing and I need not repeat them here. The parties are each single, mature, independent individuals and they were such when they met. They were each employed when they met, they continued with their employment during their relationship and they have effectively resumed the positions they each occupied before they met since their separation. When they met they each had a superannuation entitlement, the respondent's greater than the applicant's, and they still have such entitlements. The respondent's is still greater than the applicant's, but that is because he earns much more than she does. The respondent's superannuation entitlement would be greater now but for their relationship, because some $8,945 of his pre-existing entitlement was applied towards the purchase of their house, which is their main asset. It is agreed that during their relationship, each applied most of their respective earnings to the relationship. -- 3 of 9 -- 05062002 T1-2/JPP M/T TSVDC1/2002 (Wall DCJ) 1 JUDGMENT 3 This, I find, was a much greater financial contribution by the respondent than the applicant for the simple reason that the respondent was earning much more than the applicant, as is apparent from the schedules, Exhibits 2 and 3, and from the fact that at the end of their relationship, the respondent had cash of only $21,264. The applicant worked a normal working week during the relationship, but the respondent worked two weeks on and one week off as an underground miner. The applicant's normal occupation is as a laboratory nurse. When they met, the applicant was renting a unit for $150 a week, and the respondent was boarding in a house. Whilst the respondent lived with the applicant in her unit for the first 12 months of their relationship, I find that he did contribute both financially and materially to the relationship during that period. I do not accept that all expenses were met by the applicant and that that time effectively represented a cost free period for the respondent. Granted, the respondent was relieved of paying $80 a week board, but I do not consider he profited to that extent by the move to the applicant's unit, rather I find he contributed to the parties' joint living costs, at least to that extent. I accept what the respondent says in paragraph 2/7 of his affidavit filed on the 28th of May 2002. -- 4 of 9 -- 05062002 T1-2/JPP M/T TSVDC1/2002 (Wall DCJ) 1 JUDGMENT 4 Notwithstanding that the respondent was residing in the applicant's unit and using her furniture and the like, and that many of the domestic duties associated with the relationship may have been performed by the applicant, I am unable to conclude that there was, in realistic terms, an imbalance in the respective contributions which each made to the relationship during this period. The respondent was home only one week out of three. I accept that the respondent contributed to the day to day expenses at the unit, including rent and household expenses. I prefer the respondent's evidence on this aspect to that of the applicant. I also accept that the respondent's initial financial contribution to the purchase of the house was in the vicinity of $40,000 rather than $30,000, as was contended for by the applicant. The applicant's contention was based primarily on a mathematical calculation, being cost of house $112,000, amount borrowed $80,000, balance $32,000. The applicant frankly conceded that when the house was purchased, she had no money to contribute to the purchase price or renovations, and had no idea how much money the respondent contributed and brought to the relationship. I find that the respondent's cash contribution to the purchase and renovation of the house was at least $40,000. I accept -- 5 of 9 -- 05062002 T1-2/JPP M/T TSVDC1/2002 (Wall DCJ) 1 JUDGMENT 5 that the respondent paid for the security screens, a new stove, a dining room table and a lawn mower. The housing loan was repaid entirely from the respondent's earnings. I accept what the respondent says in paragraph 9 of his affidavit filed on the 17th of January 2002. This represented a significant contribution by the respondent and one which, in my view, significantly outweighed the financial contributions made by the applicant. In saying this, I am not to be taken as minimising or diminishing the other contributions including financial, made by the applicant (see for example paragraph 10 of the respondent's affidavit filed the 17th of January 2002 and paragraph 2/8 of his affidavit filed on the 28th of May 2002) but merely that there was in my view, a degree of inequality in the respect contributions, such that it is appropriate that the respondent receive some credit for that state of affairs. The respondent also paid for the outside of the house to be repainted. This was conceded by the applicant. They both were involved in painting the inside of the house. The respondent paid for the house insurance over the last three years. I do not accept what the applicant says in paragraph 4/10 of her affidavit filed on the 23rd of May 2002, to the effect that she paid all insurance costs. She conceded as much in evidence. Likewise, I prefer what the respondent -- 6 of 9 -- 05062002 T1-2/JPP M/T TSVDC1/2002 (Wall DCJ) 1 JUDGMENT 6 says in paragraph 10 of his affidavit filed on the 17th of January 2002, and paragraph 2/8 of his affidavit filed on the 28th of May 2002, about payment of household expenses, to what the applicant says in paragraph 4/10 of her affidavit just mentioned. The respondent earned much more than the applicant and most of what he earned, like the applicant's earnings, went towards their relationship and associated expenses. The applicant's contribution as a wife and homemaker did not balance out the contributions made by the respondent. Mr Riethmuller for the respondent contended that at separation, the respondent paid $4,000 towards joint debts. The evidence does not go this far, rather it establishes only that the respondent paid an insurance bill of $906.53 and $500 for the dogs. The respondent's evidence that he may have made some car payments after separation is not supported by any documentation and was relatively non- specific. I find that the respondent paid $1,406.53, not $4,000. Since separation the applicant has been residing in the house rent free, but has been paying rates, insurance and maintenance costs. On my calculations, these have probably totalled something like about $2,500 to $3,000. The rental value attributed to the house is $180 per week, the relevant -- 7 of 9 -- 05062002 T1-2/JPP M/T TSVDC1/2002 (Wall DCJ) 1 JUDGMENT 7 period is agreed at about 60 weeks and total rent for that period amounts to $10,800. The applicant has remained in the house whereas the respondent has had to re-establish himself. There is thus a continuing imbalance in the respective positions of the parties. Whilst the respondent's current financial resource in the form of superannuation is greater than the applicant's, I consider the applicant's overall position is better now than it was at the commencement of the relationship. The respondent's future is perhaps less assured than the applicant's, in the sense that he may not be able to continue working as an underground miner beyond the age of 50 years, and he does not appear to be qualified in any other field. I am not satisfied that the current difference in the parties' respective superannuation resources or their net income represents a sufficient reason for balancing or evening out the much greater financial contribution made by the respondent during the relationship, whilst of course recognising the significance of the applicant's contributions to the overall relationship. Taking into account the various matters referred to in sections 291, 292(1)(a), 297, 298, 300, 303 and 305 of the Property Law Act, and generally all of the factors relevant to an adjustment of the property interests of the parties, I -- 8 of 9 -- 05062002 T1-2/JPP M/T TSVDC1/2002 (Wall DCJ) 1 JUDGMENT 8 consider a just and equitable property apportionment would be 60 per cent to the respondent and 40 per cent to the applicant. This was the proportion contended for by the respondent at the hearing. The applicant contended for a 50/50 apportionment. I adjourn the further hearing of the application to allow the parties to agree upon the terms of a final order in accordance with these reasons. ----- POSTSCRIPT After delivery of these reasons, counsel sought clarification in relation to the respective superannuation entitlements of the parties. These are a "financial resource" (section 263) of each party and are not intended to be subject to the 60/40 apportionment. They have been taken into account in arriving at that apportionment. ----- -- 9 of 9 --