ORDERS

The respondent’s application for summary dismissal is dismissed.

Declaration that for the purposes of s.90SK(1)(ii) the applicant made substantial contributions in relation to the de facto relationship between the applicant and respondent of a kind mentioned in s.90SM(4)(a), (b) or (c).

IT IS NOTED that publication of this judgment under the pseudonym Webb & Douglas is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

Introduction

The applicant is 53 years old and lives in [N], Queensland. Queensland is a participating jurisdiction for the purposes of s.90RA Family Law Act.

The respondent is 52 years old and lives in [A], a suburb of Johannesburg South Africa. The respondent does not live in a participating jurisdiction for s.90RA purposes.

It is common ground that the parties lived in a de facto relationship for a period of time and in circumstances that gives to this court jurisdiction under Part VIIIAB Family Law Act, with the exception of one issue only. That issue is the geographical requirement prescribed by s.90SK.

Section 90SK(1) states:

A court may make a declaration under section 90SL, or an order under section 90SM, in relation to a de facto relationship only if the court is satisfied:

(a)  that either or both of parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the application for the declaration or order was made (the application time ); and

(b)  that either:

(i)  both parties to the de facto relationship were ordinarily resident during at least a third of the de facto relationship; or

(ii)  the applicant for the declaration or order made substantial contributions in relation to the de facto relationship, of a kind mentioned in paragraph 90SM(4)(a), (b) or (c);

in one or more States or Territories that are participating jurisdictions at the application time;

or that the alternative condition in subsection (1A) is met.

It is common ground between the parties that:

They were not ordinarily resident in a participating jurisdiction at the time the application was filed, and, therefore, s.90SK(1)(a) is not satisfied; and

They were not ordinarily resident in NSW during at least a third of their relationship and, therefore, s.90SK(1)(b)(i) is not satisfied; and

They were not ordinarily resident in a participating jurisdiction when their relationship broke down and therefore, s.90SK(1A) is not satisfied.

The issue before the court is whether the applicant made “substantial contributions” in relation to the de facto relationship, of a kind mentioned in s.90 SM(4)(a),(b) or (c). The applicant contends there were, so that the court has jurisdiction under s.90SK(1)(b)(ii). The respondent contents there were not.

Background

In 2001 the parties met and commenced cohabitation in Australia. In 2002 the respondent purchased an apartment in [suburb omitted], Sydney. The parties renovated it. There is a dispute about the nature and extent of these renovations, and the role each party played in effecting the renovations. The respondent sold this apartment and purchased one at [B] in 2012. Again this was renovated. Again there is an issue about who contributed to what as regards the renovations. [B] was sold in 2002, and the parties moved into an apartment owned by the respondent at [P]. This apartment is also renovated.

In 2004 the parties moved to South Africa so that the respondent could pursue employment there. That year the respondent sold the [P] apartment and purchased what is known as the [R] apartments which are again renovated. There is a dispute about the renovations, and about the date when the applicant joined the respondent in South Africa.

Between 2004 and the date of separation on 13 November 2010 the parties lived in South Africa. The respondent worked full time, the applicant did not. The [R] apartments were sold. The parties established a [omitted] business in Johannesburg that was unsuccessful and was eventually liquidated. The respondent purchased a house in South Africa and an apartment at [M] in Queensland. This apartment was also renovated.

The evidence indicates that all of the apartments were purchased in the respondent’s name, were renovated, and that the applicant played some role in these renovations. All of the apartments appear to have then been sold at a price higher than the purchase price, with the exception of the [M] apartment which is still owned by the respondent.

The applicant’s contention about his contribution

Evidence of the Applicant’s Contributions (with reference to the Applicant’s Affidavit filed 29 February 2012)

Commencement of Cohabitation

The Applicant was employed earning $60,000 per year. In addition to this, the Applicant owned a motor vehicle and some household contents and personalty. The Applicant did not have any liabilities – paragraph 9

There is no dispute between the parties that the Respondent’s initial contributions outweighed those of the Applicant.

Contributions during the Relationship

Paragraph 10 – the Applicant applied his salary towards the benefit of the both parties and undertook the majority of household tasks and overseeing renovations to the various properties owned by the Respondent during the relationship.

Paragraphs 12-15 – the Applicant encouraged the Respondent to purchase The [P] Apartment in 2002. The Applicant oversaw the renovations to the property and undertook as large amount of the labouring himself. At this time the Respondent was employed at Newcastle staying away from the [P] Apartment for most weekdays. The parties received the added assistance of the Applicant’s family’s company, [S], who supplied equipment, vehicles and employees at very little cost, if any at all. The Applicant estimates that this saved the parties a significant amount of money.

The [P] Apartment property was sold for approximately $230,000 more than it was purchased for inside one year. The Applicant made a substantial and significant contribution to this increase in value.

Paragraphs 20-22 – the Applicant facilitated the services and assistance of [S] to assist and undertake renovations to the [B] Apartment. The Applicant also applied his efforts and labour to the renovations of this property.

The [B] Apartment property was sold for approximately $200,000 more than it was purchased for inside one year. The Applicant made a substantial and significant contribution to this increase in value.

Paragraph 26 – the Applicant oversaw the facelift and renovations of the [P] Apartment. The Applicant also applied his own efforts towards the improvements and renovations. This was the property owned by the Respondent as at the date of cohabitation. The Respondent asserts he purchased this property in 1997 off-the-plan for $620,000. This property was sold in 2004 for approximately $1,300,000.

The Applicant made a substantial and significant contribution to this increase in value.

Paragraphs 30-32 – the Applicant “managed” the rental of apartment [number omitted] of the [R] Apartments whilst residing in apartment [omitted]. The Respondent, by this time, had left to live and work in South Africa. All the works carried out by the Applicant, with the assistance of his mother, were carried out during the period the Respondent was in South Africa.

These [R] Apartments were purchased in September 2004 for $1,700,000 and sold in mid-2007 for $2,900,000. The Applicant made a significant and substantial contribution to this increase in value.

Paragraphs 37-43 – the Applicant applied his efforts and labours towards the establishment of the [business] which included renovating the [premises], liaising with builders and the design company, overseeing the day to day operations of the [business] and managing employees. These duties and tasks were undertaken by the Applicant whilst the Respondent was employed on a full-time basis.

Ultimately this business did not succeed and was placed into voluntary liquidation.

Paragraphs 44-46 – the Applicant was responsible for liaising with builders and tradespersons during the renovations carried out on the property at [A], Johannesburg.

Paragraphs 47-52 – during the period that the Respondent remained in South Africa pursuing his career, the Applicant returned to Australia and facilitated the purchase of the [M] property. The Applicant then oversaw and project-managed the renovations and improvements to the property.

Whilst it is acknowledged that all the properties acquired during the period of the parties’ relationship were acquired in the Respondent’s name, it is asserted by and on behalf of the Applicant that a significant and substantial contribution was made by him to the improvements and renovations to the [P] Apartment which served as a platform for subsequent purchases.

The Respondent acknowledges:-

That the Applicant applied his income towards the joint benefit of the parties;

Undertook some labour and provided assistance and contributions towards the improvements and renovations of the [P] Property – the extent of the Applicant’s contribution to this property is in issue between the parties;

Undertook some labour and made contributions towards the renovations and improvements to the [P] Apartment property – the extent of the Applicant’s contributions to the improvements to this property are also in issue;

Undertook some labour and made contributions towards the renovations and improvements to the [B] Apartment property – the extent of the Applicant’s contributions to the improvements to this property are also in issue;

Utilised the services and assistance of the Applicant’s family’s company, [S] although he does dispute that this was at a discounted rate to normal rates;

Oversaw and liaised with the tradespersons responsible for renovations to the [R] Apartment property – the extent of the Applicant’s contributions to the improvements to this property are also in issue;

That the Applicant was instrumental in facilitating the purchase of the [M] property as well as oversaw and facilitated the renovations and improvements to the property;

Despite the Respondent’s assertions as to the status of their relationship post-August 2002, it is clear that the parties continued to live together and engage in various business activities and financial transactions together;

That the Applicant played an integral role in the [business] together with the Respondent’s sister;

Undertook some labour and made contributions towards the renovations and improvements to the [A], Johannesburg property – the extent of the Applicant’s contributions to the improvements to this property are also in issue; and

Encouraged the purchase by the Respondent of an interest in the [F].

Accordingly, it is submitted that the Court would be satisfied that the Applicant has made substantial and significant contributions to the property of the parties.

The respondent’s contentions about the applicant’s contribution

The respondent disagrees with many of the factual assertions made by the applicant about his contribution. Nonetheless, for present purposes, the respondent’s position was that the contribution asserted by the applicant to have occurred in a participating jurisdiction was not a “substantial contribution” for s.90SK(1)(b)(ii). The respondent submits that this must be decided by reference only to the applicant’s affidavit filed 29 February 2012. This evidence, it is submitted, contains many sweeping generalisations about contribution (eg. “majority of domestic duties”, “responsible for undertaking”: paragraph 10; “I oversaw”: paragraph 26) and lacks particularity and detail.

Respondent’s contention about the law

Substantial Contributions

The term is not defined in the FLA.

Contributions of the specified type by themselves do not qualify unless they are “substantial”.

The policy reasons for this provision do not emerge from the Second Reading speech nor from the reported cases. It is submitted that they include:

The importance of discouraging ‘forum shopping’

That courts in Australia have limited resources

That those resources should be allocated to cases that have a substantial connection to the jurisdiction

That to do otherwise would add to the length of time other litigants must wait for their matters to be dealt with

The desirability of avoiding or reducing injustice occasioned by significant delay

It is submitted that the best analysis of the phrase “substantial contributions” is to be found in V and K. At paragraph 21 Holden CJ said as follows:

Notwithstanding I am of the view that a contribution to domestic duties in circumstances such as exist in this case where there were no dependant children and over a short period of time ought not be seen to be substantial. In my view, substantial means something more than usual or ordinary. In my view, [the section] is aimed at more exceptional circumstances where serious injustice may be caused by the application [of the relevant provision].

In order to illustrate the position, the court is respectfully referred to the following passage in the judgment of the NSW Court of Appeal in Chanter v Catts [2005] NSWCA 411, at paragraph 71:

In evaluating contributions it should be understood that parenthood, fulfillment of the responsibilities of parenthood and shared domestic life are undertaken for human purposes the fulfilment of which is rightly perceived as an advantage by those who take part, and in domestic and parental relationships there are many shared activities and many reciprocal benefits which do not give rise to any disproportionate burden of contributions which it would be just and equitable to carry forward (as it were) into a future adjustment of property interests. Shared domestic life and parenthood are pursued for their own sake. It is disproportion in contribution and burdens which engages a claim that an adjustment of interests in property is just and equitable. This element is alluded to, although not expounded, by citing Shakespeare’s song:-

Present mirth hath present laughter.

This was explained in a better way by Gleeson CJ and McLelland CJ in Eq in Evans v Marmont in 76A-B:-

…it is important to bear in mind that s 20(1) directs that regard be had to contributions of the designated kinds made by each of the de facto partners: often it may be found that contributions of the kinds referred to in par (b) will involve shared activities or reciprocal benefits not giving rise to any disproportionate burden which it would be just and equitable to satisfy by an adjustment of interests in property.

And that is in relation to contributions, not “substantial contributions”.

To the same effect are the following statements of principle by Professor Parkinson:

The justification for examining the homemaker contribution in property division is not in the household work that has been performed but the sacrifices made and the opportunities forgone which have an economic impact. This impact arises from role differentiation and specialisation within the marital partnership. The performance of household tasks does not itself have a financial impact which ought to be compensated by property transfers. [at 3 (b) (i)]

And:

Whenever people share accommodation for a period of time, whether they are brothers, sisters, friends or fellow students, issues about the division of common household duties arise. That division may be more or less fair, more or less egalitarian, more or less gendered. It matters not. In no country in the world does title to property rest upon who did which household tasks on a day-to-day basis in a home-sharing arrangement.

For the same reasons it is difficult to see what relevance the division of household tasks has to the property division of a two-career childless couple. Where there are no children and neither party has significantly sacrificed workforce participation or career opportunities for the other, then justice can be done in property division in individual cases without reference to the homemaker contribution. [at 3 (b) (ii)]

On the facts of this case it is submitted that the contributions alleged by the Applicant are not “substantial”.

Applicant’s contention about the law

It is submitted that for present purposes the Court will find, on the evidence presented, that the Applicant can show that the contributions he made were:-

Substantial contribution; and

Serious injustice would otherwise result if the Orders sought by him were not made.

The Court, at this stage, is not considering the percentage value of those contributions, that is a matter for determination at trial.

In determining whether the Applicant’s contributions are substantial and significant, it must be shown that the contributions fall outside what would be regarded as “usual or ordinary” – see V and K [2005] FCWA 80, Miller & Trent [2011] FMCAfam 324.

There can be no doubt that the parties were in a relationship where they each made contributions of the kind referred to above for the period December 2001 to November 2010. Paragraphs 7 and 10 of the Respondent’s Affidavit concedes the periods of time the parties resided together. The issue can only be one of assessment of the Applicant’s contributions during this period of time.

In circumstances where there is no significant dispute as to the contributions made by the Applicant however a dispute exists as to their value, the Court should determine those matters on a final basis with the benefit of cross-examination. These are not matters that can properly be determined on an interim basis “on the papers” without the evidence of the parties having been tested.

A failure to properly consider the evidence in its totality during the course of a final hearing with the benefit of cross-examination and a testing of the evidence would create a serious injustice to the Applicant.

For a period approaching 9 years, the Applicant applied his income, efforts and labours into the relationship and into a variety of joint financial endeavours with the Respondent. Unless these matters are properly determined and the Applicant’s contributions properly recognized, the Respondent would obtain a significant benefit and advantage at the Applicant’s expense.

Mr Wong appeared for the applicant. He further submitted that as the relationship came so close to one that would otherwise have fallen within s.90SK(1)(b)(i) (ie. where the parties were ordinarily resident for at least one third of the relationship) this was a significant factor to consider in determining whether the contributions were “substantial”. Indeed even the respondent concedes that the parties were ordinarily resident in NSW for up to 31.77% of their relationship. The applicant’s submission, therefore, was that if at least a 33.33% period of ordinary residence establishes jurisdiction, the close proximity of the present relationship together with the contributions made leads to a finding of substantial contribution.

Discussion

For s.90SK(1)(b)(ii) purposes, the relevant contributions are those described in s.90SM(4)(a), (b) or (c).

(4)  In considering what order (if any) should be made under this section in property settlement proceedings, the court must take into account:

(a) the financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:

(i)  to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or

(ii)  otherwise in relation to any of that last-mentioned property;

whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and

(b)  the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:

(i)  to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or

(ii)  otherwise in relation to any of that last-mentioned property;

whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and

(c)  the contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship and any children of the de facto relationship, including any contribution made in the capacity of homemaker or parent.

The different types of contribution contemplated here are financial and non-financial, direct and indirect, to property or to the welfare of the family.

There is nothing in the drafting of s.90SM that suggests there is a hierarchy or priority of contributions. For example there is nothing to suggest that direct financial contributions are regarded as more important, or more weighty, than contributions to the welfare of the family. It is important to remember this when considering whether certain contributions are “substantial” in the slightly different s.90SK context. It would be quite wrong, for example, to say that a direct financial contribution is more likely to be “substantial” than a contribution to the welfare of the family. That might lead to a systematic diminution in the value of non-financial and indirect contributions such as homemaking and parenting in circumstances where there is no statutory warrant to do so. In each case when the court considers whether a contribution is “substantial” for s.90SK purposes, the court must come with a completely open mind about the diversity of contributions recognised in the Act, none of which are necessarily more important than the other. In other words the playing field for assessing substantial contributions must be an even one.

A concern that therefore arises from the cases cited by counsel for the respondent is that their context seems to be primarily contribution to the welfare of the family as homemaker and parent. In the present case the contributions alleged are much more diverse, and certainly include direct and indirect financial contributions, including to the conservation and improvement of property. The contributions alleged by the applicant also are of a non-financial character, including to conservation and improvement of property. Homemaker contribution is only a small part of the applicant’s claim.

This court is concerned about the appropriateness of applying a standard of “substantial” contributions that was developed in the narrow context of homemaker and parent contributions to the much broader context of the diverse contributions in this case. Moreover this court is concerned about the appropriateness generally of applying the standard developed in the case law to homemaker and parent contributions because of the risk that it devalues the same. One can imagine relationships of short duration where one partner’s contribution is overwhelmingly financial, and the other’s overwhelmingly non-financial and indeed principally homemaking, where the latter may still be characterised as substantial. There are no hard and fast rules. Every case must be determined on its merits.

In Miller & Trent [2011] FMCAfam 324 Federal Magistrate Coates examined the meaning of substantial contributions in the context of s.90SK. His Honour referred to, and accepted, the decision of Holden CJ in the Family Court of Western Australia, V & K [2005] FCWA80 where, at para.21, he said:

Notwithstanding I am of the view that contribution to domestic duties in circumstances such as exist in this case where there were no dependant children and over a short period of time ought not be seen to be substantial. In my view, substantial means something more than usual or ordinary. In my view, s.205XB(ii) is aimed at more exceptional circumstances where serious injustice may be cause by the application of ss (i).

FM Coates found that the wording of s.205XB was similar to that in ss.90SB and 90SM of the Act, and satisfied himself that Chief Justice Holden’s test was appropriate in the context of s.90SK.

Miller & Trent and V & K were both accepted and adopted by Johnston J in the Family Court of Australia in Wall & Mitchell [2012] FamCA 114 and by Black J in the New South Wales Supreme Court in Aslan & Al Nayad [2012] NSWSC 57.

The cases therefore seem to suggest that before a contribution can be substantial, it must be more than usual or ordinary. This is a vague and subjective standard. In the diversity of relationships that present before courts exercising jurisdiction under the Family Law Act how is “usual” or “ordinary” to be determined other than by reference to the facts of the case before the court at the time? How could a judicial officer make the comparisons that need to be made by using this standard without referring to extrinsic evidence ie. the judicial officer’s own perception of contribution in other cases?

By contrast it is interesting to note that FM Coates in Miller & Trent referred to dictionary definitions of “substantial” at paragraph 59 of his judgment. He noted, for example, that the Macquarie Encyclopaedic Dictionary defined substantial as “an ample or considerable amount as well as something having real worth or value”. His Honour also referred to the Concise Oxford Dictionary meaning of “having real importance or value and to a considerable amount”. Federal Magistrate Coates also referred to a Family Provision Act (1982) (NSW) decision in Wentworth & Wentworth (1995) 37 NSWLR 703 where the court held that substantial “means not illusory, something considerable or large”.

Whereas the V & K and Miller & Trent definition of substantial invite comparison to other cases, the dictionary definitions invite a more contextual analysis. In other words the question is whether the contribution is substantial in the context of the case being determined, and not by reference to other cases.

In the context of the case before the court, and accepting (as the court is invited to do by the respondent) that the applicant’s contribution should be accepted at face value, has the applicant made a substantial contribution to the relationship? The court finds that the applicant’s contribution is substantial for s.90SK purposes. He worked for at least two years and applied part of his salary for joint living expenses. He undertook the majority of domestic services including cleaning and cooking. He was responsible for undertaking and supervising renovations at several different properties in New South Wales each of which appears to have been sold at a price greater than its purchase price. In the context of this relationship, the applicant’s contributions, taken at face value, are substantial.

The respondent acknowledges that the applicant made some contribution, but not to the extent asserted. It is important to note that assessment of contribution can only take place at a final hearing. In effect what s.90SK requires is a characterisation of the contribution as substantial, and not an assessment of it in quantitative terms. By definition, the latter can only take place at a final hearing.

I certify that the precedingtwenty five (25) paragraphs are a true copy of the reasons for judgment ofAltobelli FM

Associate:

Date: 9 October 2012