Male Gold-Digger who contributed less than half of what he would have been obliged to pay in rent, wants 25% of the Property

Carlisle & Neely [2022] FedCFamC2F 1539 (11 November 2022)

The parties are in dispute over whether or not there should be an adjustment as to the legal title of the subject property.  The Court, in resolving this dispute, assessed the parties' contributions and assets.

Facts

The parties were in a short de facto relationship.  The main asset in dispute between the parties is the property situated at B Street, Suburb C (“B Street, Suburb C property”).  The legal title of the property is in both of the parties’ names as tenants in common in equal shares.  The mortgage is in the parties’ joint names.

There are no children of this relationship.  The applicant has 3 children from a previous relationship who lived with her throughout the relationship and continue to do so.  At the beginning of the relationship the applicant’s sons were aged 13, 9 and 8.  The respondent has two children, one of whom was 8 at the beginning of the relationship and lived with the parties half the time during the relationship.

Counsel for the applicant opened the applicant’s case asking the court to make five findings of fact:

1. The parties were in a short de facto relationship;
2. All the capital for the purchase of the B Street, Suburb C property was paid by the applicant; 
3. Any financial contributions made by the respondent is less than half of what he would have been obliged to pay in rent;
4. The applicant was subjected to family violence throughout the relationship including threats and physical assaults;
5. The parties signed a separation agreement in 2018 and thereafter acted as though they were bound by that agreement.

The applicant says the property and the mortgage should be transferred to her sole name and otherwise the parties should keep the assets they have in their possession and control.  The respondent says that whilst the applicant’s initial contributions must be given significant weight, he also made significant contributions and should receive 25% of the parties’ net assets. 

Issue

Whether or not there should be any adjustments under s90SF(3).

Applicable law

Family Law Act 1975 (Cth) s 79(2) - provides that "[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.

Analysis

The applicant provided detailed evidence in her trial affidavit filed 19 September 2022 with respect to family violence.  Her evidence was not shaken during cross-examination and her evidence was detailed and consistent. 

The applicant relied on an affidavit by her 18-year-old son filed 19 September 2022.  In his affidavit he refutes the respondent’s assertions that he was significantly involved in caring for him and his brother and outlined an incident where the respondent physically assaulted him.  When it was suggested to him that the respondent would do painting around the house, he responded spontaneously stating that the respondent never did any painting which is consistent with the mother’s evidence that the respondent would do plastering and other works, and that he refused to do any painting.

In contrast, the respondent’s evidence was vague and his evidence when cross-examined was inconsistent and unconvincing. 

The respondent annexed several tables to his affidavit which purported to summarise various transactions which he says supports his argument that he made significant contributions during the relationship.  These annexures were also struck out as being inadmissible despite his advocate disavowing any attempt to engage in an accounting exercise, which was indeed what the annexures purported to do.  Documents like these created by a party are unhelpful and inadmissible as it is impossible to know the basis upon which the summary was collated and what was excluded and whether or not it is accurate.

Conclusion

Within 60 days the Respondent should do all acts and things and sign all documents necessary to transfer to the Applicant at the expense of the Applicant all of his right, title and interest in the property at B Street, Suburb C more particularly described in Certificate of Title Volume ... Folio ... (“the transfer”).  The Applicant should discharge or refinance the mortgage registered number ... to Company D (“the mortgage”) to remove the Respondent as a liable borrower and indemnify the Respondent against all payments and all apportionable rates, taxes and outgoings of or with respect to the real property of whatsoever nature and kind.