• De Facto Relationships Act 1996 s 3, s 10, s 11;
• Family Law Act 1975 (Cth) s 79;
• Supreme Court Rules r 95.11, referred to.
• Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605;
• In the Marriage of Rolfe [1919] ArgusLawRp 55; (1977) 25 ALR 217;
• In the Marriage of Wardman and Hudson [1978] FamCA 68; (1978) 33 FLR 196, discussed.
• Parij v Parij [1997] SASC 6771; (1997) 72 SASR 153;
• In the Marriage of Crawford [1979] FamCA 38; (1979) 35 FLR 489, considered.

Judgment No. [2002] SASC 429

On Appeal from DISTRICT COURT (HER HONOUR JUDGE VANSTONE)

[2002] SASC 429

DOYLE CJ: I agree with the orders proposed by Bleby J and with the reasons that he gives. There is nothing that I wish to add to those reasons.

The respondent (Mr Dalton) brought a claim in the District Court pursuant to the De Facto Relationships Act 1996 ("the Act"). He sought orders for the transfer to him of certain house properties at Smithfield and Goolwa presently in the name of the appellant (Ms Arnold), an order for payment of money to him by Ms Arnold and the return to him or compensation for the loss of numerous items of personal property.

On 6 September 2001 a District Court Judge ordered the return to Mr Dalton of in excess of 200 miniature cars and the return of a lesser number to a solicitor for return to a Mr James, a dealer to whom all the miniature cars in question had been sold. The Judge declined to make any order in respect of the Smithfield property, directed that Ms Arnold pay to Mr Dalton $35,000 which was estimated to represent one half share in the value of the Goolwa property, and adjourned further consideration as to possible sale of the Goolwa property if the latter order were not complied with.

Ms Arnold appealed against those orders, claiming that no de facto relationship ever existed, seeking orders that she is beneficially entitled to both house properties, an order that all relevant personal property remain vested in her and an order for payment to her of $31,000 "being an amount of three years of back child support that the Judge ruled in her orders as a conservative estimate for their care".

Mr Dalton cross-appealed, claiming the payment of additional money by Ms Arnold, compensation for loss of personal property and "equitable" division of the real property and of the personal property contained within the two houses.

The order for payment by Ms Arnold was not complied with. By further order made on 28 November 2001 the Judge ordered the sale of the Goolwa property on certain terms, with 50 per cent of the net proceeds, after expenses of sale, to be paid to Mr Dalton and the balance, after payment of outstanding rates and taxes and the discharge of mortgages and encumbrances, to be paid to Ms Arnold.

Mr Dalton also appealed against that order, seeking the same orders as claimed in his cross-appeal and on grounds which are identical to those stated in his original cross-appeal.

Ms Arnold did not appeal against the second order. In fact, her appeal against the first order lapsed by virtue of Rule 95.11 of the Supreme Court Rules. Accordingly, it is not necessary to concern ourselves with that appeal. We therefore have before us only Mr Dalton's two appeals, both in identical terms.

Neither party was represented by a legal practitioner at the trial in the District Court. Mr Dalton conducted his own appeal before this Court.

Ms Arnold did not appear on the hearing of the appeal. She was represented in Court by her cousin, Mr Sam Arnold, as an observer, who did not seek to make submissions on her behalf. The Court indicated to him, however, that if Ms Arnold wished to provide an explanation for her non-appearance and anything else as to why the Court should not allow Mr Dalton's appeal, the Court would consider that. However, the Court made clear that it would be unlikely to act on any such submission if it was satisfied that she was in contempt of orders of the Family Court of Australia relating to the children of Ms Arnold and Mr Dalton, and that her non-attendance was to avoid compliance with such orders.

After the hearing had been completed, the Court received a written submission "on behalf of Sally May Erica Arnold" prepared by Samuel Arnold and signed by him. This submission has been ignored, as it is not signed or adopted in any way by Ms Arnold. However, even if it were, we are satisfied that Ms Arnold is not complying with orders of the Family Court, and that her non-attendance and concealment of her address is part of that non-compliance.

The Judge identified three issues to be determined in the proceedings. They were:

1. Whether the parties were in a de facto relationship such as to attract the operation of the Act;

2. Whether Mr Dalton made any and if so what contributions to the purchase of the two house properties currently registered in the name of Ms Arnold; and

3. Assuming that there was jurisdiction to make an order for a division of property, whether an order should be made, and if so on what terms.

The Judge dealt first with the second question and found that Mr Dalton contributed $40,000 to the purchase of the Smithfield house and $20,000 to the purchase of the Goolwa house. Ms Arnold had denied that any such payments had been made.

As to the first question, the Judge found that the parties were in a de facto relationship such as to confer jurisdiction on the Court to make an order. That was also a matter of dispute between the parties. Ms Arnold's appeal having lapsed, that finding can no longer be in contention. Having found that the relationship existed, the Judge made the orders on the basis that it was "just and equitable" to do so (s 10 of the Act), taking into account the matters required to be considered by s 11.

I deal first with the grounds of appeal contained in Mr Dalton's notice of appeal. Some of these were argued by Mr Dalton on the appeal. Others were not specifically referred to. There were yet other matters raised by Mr Dalton during the course of his oral argument not specifically mentioned in the grounds of appeal. It was those matters particularly that the Court had in mind in giving Ms Arnold the opportunity to make written submissions after the conclusion of the hearing.

The first ground of Mr Dalton's appeal is that there was no satisfactory attempt at, or discovery of independent valuations of the two items of real property, being the Smithfield and Goolwa properties. Mr Dalton complains that there was no established principle of valuation used by the trial Judge.

In his statement of claim, Mr Dalton sought the transfer to him of the Goolwa house (but not the Smithfield house), delivery to him of many items of personal property and payment to him by Ms Arnold of the sum of $10,500 or "such other sum as shall seem appropriate to this Honourable Court". Mr Dalton knew that any division of property between the parties would only be "in a way that is just and equitable" (s 10 of the Act).

Adjustments were being claimed in respect of two house properties, many items of personal property and the payment of money. If a just and equitable division were to be made, short of selling all the identifiable property and dividing the proceeds, it was necessary for the trial Judge to make some assessment of the value of the various items of property, including the houses. Mr Dalton did not provide any evidence of value of the houses, yet he was seeking a just and equitable adjustment by the transfer of one of the houses to himself. He complains that his attempts to obtain valuations from Ms Arnold were ignored or frustrated and that he could not gain access to the properties to obtain a valuation. As was pointed out to him on the hearing of the appeal, he could have obtained appropriate orders from the Court to facilitate the obtaining of valuations. He did not. By not leading evidence of value of the houses he placed the Court in a difficult position.

"No expert evidence of value was placed before me by either party. It might have been difficult for the plaintiff to have gained access to the properties to obtain such evidence in any event. Whilst Ms Arnold said she had no formal evidence of value she did, at my request, place before me documents showing the values ascribed by the Valuer General for the purposes of rates and taxes, and also a real estate agent's appraisal in relation to each property.

The Valuer General currently gives a capital value of $63,000 for the Smithfield property and $58,000 for the Goolwa property. The appraisal in relation to Smithfield suggests an asking price of $84,500 to $87,500, and that relating to the Goolwa property suggests a value in the $70,000s. On the basis of this material I consider it fair to both parties to assume for the purpose of calculations that the Smithfield property is worth about $78,000 and the Goolwa property about $70,000."

It is not as though there was conflicting evidence of value between expert valuers. The trial Judge was given very limited assistance by both parties as to the value of the properties. The Judge had to make a finding on the limited material placed before the Court. It was necessary to act conservatively in respect of an inexpert untested agent's appraisal where admitted government valuations were significantly less.

That was the only evidence of value available to the trial Judge. It was on that basis that the Judge proceeded to make orders in respect of the division of property. Mr Dalton, who was seeking the orders, cannot now complain if there was inadequate evidence of value placed before the Court. On the evidence before the trial Judge, the estimates of value of the two properties were not unreasonable.

Ground 3 criticises the Judge's treatment of evidence concerning the personal property. Mr Dalton complains that the Judge did not take into account the unlawful removal of and damage to his personal property by Ms Arnold. In fact, the trial Judge accepted Mr Dalton's evidence as to the ownership of the relevant personal property and of loss of and damage to some of the principal items by Ms Arnold.

The Judge made findings as to the disposal of some of these items by Ms Arnold without the permission of Mr Dalton. As the Judge correctly observed, it was impossible to be precise about the monetary loss suffered by Mr Dalton. It was held that the total losses approached $8,000. This took into account a large number of miniature cars which Mr Dalton was able to identify as being his and which had been seized from a Mr James, a dealer. There were other miniatures, the ownership of which Mr Dalton was uncertain. The trial Judge ordered that these be returned to a solicitor for return in due course to Mr James, the dealer.

Mr Dalton criticises the alleged failure by the trial Judge to deal with all items of personal property and for the order returning some of the miniature cars to Mr James.

There were limits to the extent to which the Judge could properly pursue every minor detail unless the trial were to take considerably longer than in fact it did. Doing justice and equity between parties does not require the examination in minute detail of the value and disposal of every small item of personal property. When dealing with the division of property following a breakdown of a de facto relationship, a judge will inevitably gain an understanding of how, in broad terms, the financial relationships of the parties were adjusted over time and how they contributed to the household and the acquisition of items of property used in the household and in recreational pursuits. The Judge did that in this case. An assessment was made of losses relating to some of the more substantial items. There was also a large number of what were described as "collectables". These included Dinky toys, Matchbox toys, old books and magazines and various tools.

In relation to the property not subject to the order for return to Mr James, it was necessary for the Judge to wield a broad axe while considering evidence concerning particular major items of property, and who contributed to or disposed of them. The Judge did this. Many of the items were contributed by Mr Dalton for use by the parties and their children in their day to day living as contributions to the set-up of the family home. To the extent that they were not returned to Mr Dalton they formed part of his contribution made towards the family unit. As will be seen, they appear to have been brought to account in other ways. I can detect no errors in the approach of the Judge in this respect or the making of a broad assessment as to the probable value of the items of personal property of which Mr Dalton had been deprived.

As to the goods ordered to be returned to Mr James, the Judge was concerned at the possibility of making orders returning personal property to Mr Dalton without Mr James being heard. He was given an opportunity to be heard which he did not take. The Judge was therefore prepared to make orders returning to Mr Dalton some of the property which could be properly identified. Even that order may be questionable in proceedings to which Mr James was not a party. As to the other items about which there was some doubt, the Judge merely directed that they be returned to Mr James. The Judge was not deciding who was legally entitled to them. On the evidence before the Judge, it was not possible to make orders delivering them to Mr Dalton. If Mr Dalton claims property in the goods, it seems to me that there is nothing to prevent him from taking action against Mr James for their recovery.

Defective discovery and late production of documents

It is convenient to deal with Grounds 2, 4 and 5 together. Mr Dalton complains of late and inadequate discovery of documents by Ms Arnold as part of a deliberate attempt on her part to conceal her true financial status, to the extent that he was actively misled in the preparation of his case. He claims that documents requested some years before the trial were not produced until after judgment was reserved. He claims that he was not given an opportunity to cross-examine Ms Arnold about them.

Some documents were produced after judgment was reserved, being documents forwarded by an officer of the Westpac Bank who had given evidence to the Court. The trial Judge called the matter on to allow the parties an opportunity to consider whether they wished the documents to be tendered. Mr Dalton took advantage of that opportunity and tendered them. No oral evidence was called, and Mr Dalton did not apply to the Judge to recall Ms Arnold for further cross-examination. He submitted to the Judge that the documents confirmed his evidence as to the contributions he had made to the Smithfield and Goolwa houses, and that in recent years Ms Arnold had been drawing monies on the security of the Smithfield house for her own purposes.

I do not consider that there is any substance in these grounds. One of the principal issues for determination was the extent of the contributions made by the respective parties to the purchase of these houses. The trial Judge accepted Mr Dalton's evidence on that topic. It was by taking those findings into account that the trial Judge proceeded to make the order for division of property. There is nothing to suggest that Mr Dalton was prejudiced in the presentation of his case or that the outcome was less favourable to him because of the concealment of those documents. Rather, the trial Judge's findings completely vindicated Mr Dalton's evidence.

Mr Dalton may feel aggrieved that he did not have the documents earlier. He may feel aggrieved that he believed that he was a victim of Ms Arnold's concealment. However, in the end, the trial Judge accepted his evidence on the crucial issue of who contributed what to the acquisition of the houses. He could not ask for more than that.

Maintenance and other contributions - s 11 and the facts

The final ground of appeal in the notice of appeal complains about the fact that, in making the division of property, the trial Judge took into account the relative contributions of each party to the maintenance of the children of the relationship, thereby in effect giving practical expression to a notional order for past maintenance of the children in a situation where the Court has no jurisdiction to order maintenance payments.

The trial Judge accepted that the Court has no jurisdiction to make orders for maintenance of children of a de facto relationship. Section 11(1) of the Act provides:

"11(1) In deciding whether to make an order for the division of property under this Part, and if so the terms of the order, the court -

(a) must consider the financial and non-financial contributions made directly or indirectly by or on behalf of the de facto partners to -

(i) the acquisition, conservation or improvement of property of either or both partners; or

(ii) the financial resources of either or both partners; and

(b) must consider the contributions (including homemaking or parenting contributions) made by either of the de facto partners to the other partner or to children of the partners or either of them; and

(c) must have regard to the terms of any relevant cohabitation agreement; and

(d) may have regard to other relevant matters."

Although there is no jurisdiction to order maintenance payments, in considering whether to make orders for the division of property, it is nevertheless necessary to bring into account the relevant contributions made by both partners to each other or to the children of either or both of them. This includes homemaking or parenting contributions, a matter to which I will return.

In relation to the acquisition of the two house properties, the trial Judge found that, in respect of the purchase price of the Smithfield house ($60,000) Mr Dalton had contributed $40,000 in cash at settlement in February 1989. The balance of the purchase price and expenses of purchase were financed by a loan of $22,000 from the State Bank of South Australia. That loan was paid off in May 1995 at the time of acquisition of the Goolwa house, the balance then being a little over $13,000.

In respect of the Goolwa house, purchased in May 1995 for $47,500, the trial Judge found that Mr Dalton had contributed $20,000 in cash at settlement. That purchase was financed by a loan of $50,000 from the Westpac Bank, some of which was used to pay off the State Bank loan in respect of the Smithfield house. Thus, it seems that in respect of both transactions Mr Dalton was the only one to provide cash at settlement.

The mortgage payments to the State Bank on the purchase of the Smithfield house seem to have varied between approximately $162 and $115 per fortnight. Repayments of the Westpac loan were at the rate of $233 per fortnight. By June 1999 the balance outstanding on the Westpac loan was a little over $39,000 on what was known as a "Premium Option Home Loan". That was then converted to a Variable Rate Investment Property Loan, and the amount increased to $55,000. Repayments then became $100 per week. However, this appears to have occurred after the parties had separated.

The trial Judge found that Mr Dalton contributed $50 per fortnight to Ms Arnold towards payments on the Smithfield house mortgage, plus "occasional extra amounts", together with a sum equivalent to half of the rates, taxes and bills for power and the like. Ms Arnold was left to pay the balance of the mortgage payments and monies for food, clothing and the children's expenses. There was no finding and indeed no evidence as to the extent of the extra amounts. On the hearing of the appeal Mr Dalton asserted that he had in fact doubled his mortgage repayment contribution, but there was no evidence on which such a finding could be made.

As to the personal property, the trial Judge found that the value of losses incurred by Mr Dalton, at the hands of Ms Arnold, was approximately $8,000.

In relation to the financial and non-financial contributions made to the financial resources of each partner, the trial Judge found that they were roughly equal. Any differences that there were were not of sufficient magnitude to have an impact on any division of property. Nevertheless, the trial Judge found that there was an imbalance in contributions towards the maintenance of the two children. Mr Dalton's input was meagre. After the separation, in September 1997, payments of between $80 and $110 per fortnight were made by compulsion until Mr Dalton ceased full-time employment. Since then he had been required to pay only an amount of about $250 per annum towards his children. During that time Ms Arnold has met the financial needs of the children, with the aid of government assistance. She has also met their emotional needs and, according to the Judge, has "borne the entire responsibility for their wellbeing".

It is clear from s 11(1)(b) of the Act that it is not only financial contributions which are relevant in the determination of any division of property. Homemaking and parenting contributions are also relevant.

What the trial Judge principally took into account in making the final order were the lump sum contributions by Mr Dalton to the purchase of the two properties, his contributions towards mortgage repayments, the unjustified disposal of some of his personal property by Ms Arnold and "the greater contribution made by (Ms Arnold) to the monetary needs and upbringing of the two children of the relationship throughout their lives, but particularly in the last three years".

The approach taken by the Judge on the last of those three issues was to assess what might have been a reasonable sum for Mr Dalton to put towards the girls' needs over the last four years (i.e. since the separation), assuming that he had continued in employment and in proper discharge of his responsibilities as a father. A payment of $75 per week per child was assumed, making a total sum of approximately $31,000. What in fact had been paid was something of the order of $3,000.

There appears to have been no evidence on which to base the figure of $75 per week per child, but the Judge considered that to be a "conservative figure". The Judge concluded:

"I consider though that bearing in mind the lack of financial support for the children in the last three years and the very limited such support for them in all the years of their lives, and remembering that Ms Arnold has provided throughout for their emotional wellbeing, it is not appropriate to make any adjustment order in respect of the Smithfield property, notwithstanding the plaintiff's contribution to the purchase price and to the mortgage payments."

Mr Dalton had paid in cash two-thirds of the initial cost of the Smithfield house. I ignore for the moment any imbalance in loan repayments and any notional interest credit that Mr Dalton might claim by virtue of his cash contribution. If that represented his "equity" in the house, based on the current value of $78,000, his "equity" was $52,000. Adding to that figure the sum of $8,000 representing the personal property lost or damaged by Ms Arnold, Mr Dalton's entitlement (leaving aside the Goolwa house) was therefore $60,000. The trial Judge's assessment of the net deficiency in financial contributions made towards the welfare of the children was $28,000. By allowing Ms Arnold to retain the Smithfield property, this would appear to value Ms Arnold's "emotional" input and support for the two children, for which she was given credit, at $32,000.

The Judge also viewed it from another perspective. Taking Mr Dalton's evidence that it was his intention that the Smithfield house should belong to both of them jointly, any adjustment order would deprive him of a current value of $39,000. The Judge said:

"In all the circumstances, to write off such a modest sum against his debts, emotional and financial, to his daughters does not seem to me to be other than just. Even putting into the equation at this juncture the loss of the plaintiff's personalty - which I have quantified as an amount approaching $8,000 - I do not consider that he has proved that any adjustment in respect of the former family home is warranted."

On that basis the amount of which Mr Dalton is deprived is $47,000 (half the value of the house plus the $8,000). After allowing for the net deficiency of $28,000 by way of financial contribution to the welfare of the children, that leaves a difference of $19,000, being the figure at which the emotional support is valued.

The two approaches by no means yield similar results. That raises questions as to the correctness of each approach, and indeed of the whole approach of the Judge to the adjustment of contributions under s 11(1)(b) of the Act.

Section 11(1)(b) - maintenance contributions and the relevant period

Mr Dalton complains that, by quantifying and basing an order upon past unpaid maintenance and other contributions, the Court is, in effect, ordering the payment of maintenance which it has no power to do under the Act. It is correct that the Court does not have power to order maintenance payments. The Court is only concerned with the division of property. However, there is an explicit requirement in s 11(1)(b) of the Act to take into account the financial and other contributions actually made by one party towards another and for the purposes of children of either or both parties. In that regard the approach of the trial Judge cannot be criticised.

There is a question as to whether the contributions brought to account should only include such contributions made or not made during the subsistence of the de facto relationship, and not after it has ceased. In my opinion there is no reason so to limit the period. There is nothing to suggest that the financial contribution by way of maintenance of or addition to property made by one partner after the relationship has ceased should not be brought into account. The same should apply to contributions (including homemaking and parenting contributions) made during such a period. Furthermore, the definition of "de facto partner" contained in s 3 of the Act includes "a person who has lived in a de facto relationship". For the purposes of the Act, the former de facto partners remain de facto partners until the time that an order is made. So construed, s 11(1)(b) would include reference to contributions made after cohabitation has ceased. I therefore conclude that s 11(1)(b) requires an assessment of the financial and other contributions of the partners to the maintenance of each other and of their children up to the time that the order is made. However, it cannot look beyond that date.

There is also a question as to what is encompassed by "homemaking and parenting" contributions. The trial Judge seems to have made some allowance for the fact that Ms Arnold had provided throughout for the childrens' "emotional wellbeing" and that Mr Dalton had an emotional debt to his daughters which could somehow be taken into account.

There are obvious difficulties in equating such a concept to a monetary figure. There will also be insuperable difficulties in determining the relative level of emotional support and wellbeing contributed by one partner or the other, particularly in times of great domestic emotional stress. I do not consider that there is any warrant under the Act for that aspect of the approach taken by the trial Judge.

Section 79(4) of the Family Law Act 1975 (Cth), as it stood until 1987, specified what a court should take into account when an order for division of property is necessary between parties to a marriage. It provided:

"(4) In considering what order should be made under this section the court shall take into account -

(a) the financial contribution made directly or indirectly by or on behalf of a party ... to the acquisition, conservation or improvement of the property, or otherwise in relation to the property;

(b) the contribution made directly or indirectly to the acquisition, conservation or improvement of the property by either party, including any contribution made in the capacity of homemaker or parent;

(c) the effect of any proposed order upon the earning capacity of either party."

Sub-paragraph (b) is of particular relevance in the present context. Speaking of that paragraph in Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605 at 623, Mason J said:

"The Family Court has stated - and in my view correctly stated - that the purpose of s 79(4)(b) is to give recognition to the position of the housewife who, by her attention to the home and the children, frees her husband to earn income and acquire assets: In the Marriage of Rolfe (1977) 25 ALR at p 219; In the Marriage of Wardman and Hudson [1978] FamCA 68; (1978) 33 FLR 196; In the Marriage of Crawford [1979] FamCA 38; (1979) 35 FLR 489 at pp 495-496; In the Marriage of Aroney [1979] FamCA 62; (1979) 5 Fam LR 535 at pp 539-540; In the Marriage of Albany [1980] FamCA 80; (1980) 6 Fam LR 461 at p 471; In the Marriage of Dupont (No. 3) [1980] FamCA 68; (1981) 7 Fam LR 747; In the Marriage of Mahon [1982] FLC 77 and In the Marriage of Racine and Hemmett [1982] FamCA 63; (1982) 8 Fam LR 716 at p 717. And it has been held, again correctly in my view, that the Act intends that the wife's contribution as homemaker should be recognized in a substantial and not merely in a token way."

See also Parij v Parij [1997] SASC 6771; (1997) 72 SASR 153 at 163-164.

Section 79(4)(b) of the Family Law Act as considered in those cases is not in identical terms to s 11(1)(b) of the De facto Relationships Act. The latter provision does not require consideration of the contribution that homemaking or parenting contributions may have made to the acquisition of the property in question. However, the provision of contributions of that nature will almost inevitably affect the ability of one partner to make a financial contribution towards the acquisition of the property. The more general requirement of s 11(1)(b) now has its counterpart in the present s 74(1)(c) of the Family Law Act.

The question is what is encompassed by homemaking and parenting contributions and how they are to be valued. As Mason J noted in Mallet v Mallet (supra) at 623 in relation to the relevant provision of the Family Law Act, the judges of the Family Court have held that the contribution of the wife as homemaker is to be equated to the contribution of the husband as income earner. In a judgment with which Asche SJ and Gun J agreed, Evatt CJ said In the Marriage of Rolfe [1919] ArgusLawRp 55; (1977) 25 ALR 217 at 219:

"The purpose of s 79(4)(b), in my opinion, is to ensure just and equitable treatment of a wife who has not earned income during the marriage, but who has contributed as a home-maker and parent to the property. A husband and father is free to earn income, purchase property and pay off the mortgage so long as his wife assumes the responsibility for the home and the children. Because of that responsibility she may earn no income or have only small earnings, but provided she makes her contribution to the home and to the family the Act clearly intends that her contribution should be recognized not in a token way but in a substantial way. While the parties reside together, the one earning and the other fulfilling responsibilities in the home, there is no reason to attach greater value to the contribution of one than to that of the other. This is the way they arrange their affairs and the contribution of each should be given equal value."

In considering the phrase "in the capacity of homemaker or parent" in s 79(4)(b) of the Commonwealth Act, the Full Court of the Family Court (Watson SJ, Wood SJ and Fogarty J) said In the Marriage of Wardman and Hudson [1978] FamCA 68; (1978) 33 FLR 196 at 204:

"It appears to us that the latter portion of that phrase is clearly directed to the ordinary circumstance where a wife remains in the home looking after the home and the children thus freeing the husband from those obligations and enabling him to earn in a more direct fashion and thus involve himself more directly in the acquisition, conservation or improvement of the property in question. In any event the considerations contained in s 79(4) are not exhaustive and clearly, in our view, in considering what order is just and equitable under s 79, it would be wholly inappropriate not to give full and significant regard to the ordinary situation in the community, namely a situation where the wife directs herself, particularly during the period when the children are young, away from outside employment towards the conduct of the home and the rearing of the children, and that in ordinary circumstances that is a contribution which in every way ought to be equally equated to the efforts of the husband who is thus freed to pursue his direct outside employment."

See also In the Marriage of Crawford [1979] FamCA 38; (1979) 35 FLR 489 at 495-496.

These cases are, of course, speaking of a situation where the relationship is subsisting and the partners have chosen a particular means of providing for the family unit. The period we are considering in this case is the period between the cessation of the relationship and the trial. Nevertheless, the contributions being spoken of in s 11(1)(b) of the Act are of the same type as those being spoken of in those cases. It is the contribution being made by one partner by staying at home and performing the usual domestic and child raising functions for the benefit of the whole family unit. The paragraph requires some assessment both of the financial contributions made or to be made by each partner and of the relative contributions of each partner to those domestic and child-raising activities, the demands for which will change particularly as children grow up. The principle applicable to s 79(4)(b) of the Family Law Act is that in the situation where one partner is engaged in paid employment and the other remains at home, the contributions are valued as equal. I consider that to be an appropriate starting point for the application of s 11(1)(b).

This does not seem to have been the approach taken by the trial Judge. I consider that in not attempting to value the homemaking and parenting functions and in bringing into account some alleged emotional debt or compensation for Ms Arnold's contribution to the emotional wellbeing of the children, the trial Judge was led into error. It is therefore necessary to review that aspect of the trial Judge's decision.

The evidence in the case concentrated on contributions to and ownership of the two house properties and other items of personal property. There was little evidence on which to make definite findings as to the relevant contributions of each partner to the day to day costs of running the household. What the evidence does suggest is that, at least until the children of the relationship were born, the contribution of the two partners to the payment of domestic and other expenses was roughly equal. Both were engaged in casual employment.

After the children were born, and until the hearing of the application, Ms Arnold was not in paid employment. The trial Judge made the following findings:

"I accept that the relationship was in some respects unusual, and that was often because of the plaintiff's rigid and perhaps selfish attitude to it. He was absent from the home for periods of time, sometimes pursuing his own rather esoteric interests, sometimes at the Paskeville property, in which the defendant had limited interest, and sometimes working. I accept that this continued after the birth of the two children, and it is plain that the plaintiff's financial contribution to the household expenses was fixed and minimal. Whether that sprang from the fact that he had, as I have found, put in the entire equity at the outset, or because he was quite simply mean, as Ms Arnold said, or most likely both, I need not finally determine. But the fact that he was able to squirrel away the sum of $20,000 from about 1990, in time to produce it for the Goolwa purchase demonstrates a certain frugality and independence. I accept that whilst the plaintiff contributed towards the Smithfield mortgage at a rate of $50 per fortnight (plus occasional extra amounts) and paid to the plaintiff a sum equivalent to half of the rates, taxes and bills for power and the like, the defendant was left to pay the balance and for food, clothing and the children's expenses. The genesis of this dispute is probably in the plaintiff's lack of generosity in giving time or money to the defendant and later to the children."

Her Honour later made the findings as to actual contributions made by Mr Dalton after separation which I have already summarised. As already noted, the trial Judge fixed a figure of $75 per week per child which her Honour used as the starting point for the appropriate, if conservative, financial contribution that Mr Dalton should have made towards the children's wellbeing after separation. In the absence of any agreement or detailed evidence, the trial Judge was obliged to apply a rather broad axe, and to commence with a figure of that order. She cannot be criticised for that. As appears from her Honour's reasons, that figure was fixed as Mr Dalton's "contribution towards food, clothing, housing, schooling (where applicable), transport needs, entertainment and the like", as a conservative figure "particularly having regard to the fact that Ms Arnold was not able, in those years, to both care for the children and to earn a significant wage. It must be a particularly conservative figure in respect of Elyse, the older child".

In one respect there is an identifiable element of double counting, in that housing, at least, was already being provided by the arrangements to which I have previously referred. However, leaving that aside at the moment, I infer from those observations of the trial Judge that her Honour considered that the figure of $75 per week per child was necessary to cover most of the expenses relating to the upbringing of the children because of Ms Dalton's inability to undertake paid employment and to contribute to those matters herself. However the contribution that she was able to make, and no doubt did make, was in the area of child care, house cleaning, meal preparation, clothes washing and ironing and possibly some other aspects of household activities. That would be so for the whole period of four years preceding the trial, when the parties were not living together, but during which Ms Dalton had custody of the children.

The starting point on the principles I have identified must be that the value of her contribution was at least equal to the contribution that the trial Judge found Mr Dalton ought to have made, had he been the sole breadwinner living at home. To that starting point some adjustments must be made.

The first is that the notional $150 per week payable by Mr Dalton was said by the trial Judge to include the cost of housing. Even if he was not during the relevant period making any contribution to repayment of the original housing loan, Mr Dalton had made a substantial contribution by way of capital to the provision of the principal residence and to the acquisition of the holiday house. By the time of the separation I estimate that the original Smithfield housing loan, but for its absorption into the refinancing for the purchase of the Goolwa house, would have been very close to being paid off. The notional payment of $150 per week may therefore be more generous than the trial Judge gave credit for. It might place the figure in the adequate category, rather than what her Honour described as "conservative". However, as a basic maintenance payment for the children only, it would still not be equivalent to the value of the contribution made by a resident partner providing for the financial needs of the family unit, including those of his partner. In that respect, the assumed equal starting point means that Mr Dalton's contribution was something less than that assumed in the equal contribution model.

The principle of equal value of homemaking contributions to financial contributions assumes, as I have said, a continuing family unit living in the same house, and the relative contributions being made to the totality of the domestic requirements, including those of the employed partner. In the situation in this case, for the relevant period, Mr Dalton was not living at the same house. Ms Arnold did not have to provide for him and he did not benefit from her domestic and homemaking contributions as the husband would in the situation mentioned in the cases on the Family Law Act to which I have referred. If anything, that would tend to lessen Ms Arnold's relative notional contribution from the starting point in the equal contribution model.

At the time of separation the two children were aged approximately four and a half and three. During the period in question, both would have commenced attending school. The demands on Ms Arnold's time in child rearing activities would probably have changed considerably over that time. She would have become free to pursue some of her own interests, again tending to lessen over time the notional value of her homemaking and parenting contribution.

All that might tend to suggest that for the period in question, and on a strict mathematical application, Ms Arnold's overall contribution might also have been less than that assumed in the equal contribution model as the starting point.

There are obviously swings and roundabouts to be considered, and one cannot descend into too much detail in assessing the relative contributions of the two partners during that period. Overall, for that four year period, I consider the notional contributions of Mr Dalton fixed by the trial Judge to have been roughly matched by the homemaking and parenting contributions of Ms Arnold. Therefore, for that period no further adjustment need be made other than by way of accounting for the deficiency in Mr Dalton's notional maintenance payments.

From the period from the birth of the first child to the separation, a period of about four and a half years, the trial Judge was critical of the level of support provided by Mr Dalton. I have already referred to the trial Judge's findings that Mr Dalton's contribution to the household expenses was "fixed and minimal". She found that he was able to "squirrel away" the sum of $20,000 from about 1990 to the purchase of the Goolwa residence in June 1995. She found that Ms Arnold was left to pay for much of the food, clothing and children's expenses. During the whole of this period Ms Arnold was devoting her time and attention to homemaking and parenting. Yet, it would appear that the trial Judge made no allowance for this period of apparent inequality in the contributions made to and for the benefit of each other and for the children. During this period there seems to have been an overall greater notional contribution by Ms Arnold than by Mr Dalton. In part, that may have been offset by the contribution of personal property for use in the family home which Mr Dalton complained was not returned to him.

Once again, the assessment must be somewhat arbitrary, but based on the trial Judge's findings and on the rather incomplete information as to the actual contributions made by Mr Dalton, I would assess his deficiency for that period at roughly one-third that of the later period, or about $10,000.

The consequence of these adjustments on the trial Judge's order can now be calculated. There is no reason to interfere with the trial Judge's order with respect to the Goolwa property. So far as the Smithfield property is concerned, Mr Dalton paid approximately two-thirds of the cash price of the house at settlement. Assuming roughly equal loan repayments by both parties until the acquisition of the Goolwa house, if he was to maintain his two-thirds equity, he should have paid a higher proportion of those loan repayments. The balance of the loan outstanding at the time of the purchase of the Goolwa house ($13,000) was the subject of refinancing with the loan for the Goolwa house. Mr Dalton paid less than half the cash value of that house at the time of purchase. The consolidated loan was not fully repaid at separation, and has itself since been the subject of refinancing by Ms Arnold for her own purposes. As the trial Judge observed, it was Mr Dalton's intention that the Smithfield house should belong jointly to both of them. I think that in the circumstances, justice will be done if the value attributed to both houses is apportioned half to each partner. As to the Goolwa house, that apportionment is reflected in the trial Judge's order. As to the Smithfield house, that means that Mr Dalton is entitled to one-half of its assessed value of $78,000. However, Mr Dalton's entitlement needs to be increased by $8,000, being the assessed value of his personal property lost or damaged by Ms Arnold. The figure thus arrived at is $47,000. However, this must be reduced by the amount of $28,000 being the trial Judge's assessment of the net deficiency of financial contributions made by Mr Dalton towards the welfare of the children during the post-separation period in order to balance the roughly equal non-financial contribution made by Ms Arnold. To that net deficiency must be added the further sum of $10,000, being the balancing sum which I have assessed as necessary to balance Ms Arnold's contribution towards homemaking and parenting during the immediate pre-separation period. That leaves a net balance in favour of Mr Dalton in the sum of $9,000, which sum should be paid by Ms Arnold if she keeps the Smithfield property.

The additional point argued by Mr Dalton at the hearing which was not mentioned in his grounds of appeal related to his attempts to rely on a document which was entitled "Further further amended statement of claim". For ease of reference I shall refer to this as "the amended statement of claim".

The trial commenced on 12 June 2001. It appears that on 4 June 2001 Mr Dalton had attempted to file the amended statement of claim. The question arose very early in the trial as to the status of the amended statement of claim and the ability of Mr Dalton to rely on it. Mr Dalton explained to the trial Judge that the original amended statement of claim as filed was inaccurate, that much of the property referred to in it had since been recovered, and that some of the values were incorrectly stated. It had been prepared, incorrectly, by his former solicitors whose instructions he had terminated some 18 months previously. He acknowledged that there were many errors and inaccuracies in it, and that he no longer wished to rely on it.

The trial Judge understood that Mr Dalton was seeking leave to file the amended statement of claim. As with the original statement of claim, it was a comprehensive document relating in detail to every item of property the subject of Mr Dalton's claim. He explained that it brought "up to date" his position in relation to the various items of personal property. Ms Arnold had no objection to the filing of the amended statement of claim.

Having heard the parties the trial Judge said (transcript page 11):

"HER HONOUR: Mr Dalton, I am going to delay consideration of the question of permitting you to file this statement of claim. As it stands, it seems as if there may not be problems arising from it but it's highly inconvenient to me to have to deal with the document that's arrived at the 11th hour and to which the defendant has made no response. So if there are particular matters in that document which you wish to assert by way of evidence, I think we will deal with that when we get to it. I don't think this will affect the thrust of your claim but it's more appropriate to leave the pleadings as they are for the moment.

MR DALTON: Again, I will refer to the details in the current document at that time.

HER HONOUR: No, the document has no status because it isn't part of the court file. It's therefore unhelpful to refer to it; in fact it's a complete waste of time. However, that's not to say that I am going to stop you giving evidence about the latest position of various items of personal property. Ultimately, the evidence overtakes any documentation.

HER HONOUR: I am not going to stop you at this moment in giving evidence as to where that property is now located or what it's now worth in your estimation but I am not going to let you make that amendment, so there is no point in referring to that document henceforth; all right."

The trial Judge was plainly referring to the document's use as a statement of claim.

Thus, it would seem that, while the document could not be relied on as a pleading, the trial Judge was indicating to Mr Dalton that he would not be restricted in giving sworn evidence.

However, it became clear that Mr Dalton was in fact relying on what was a very detailed summary of his claim as much for his own purposes as a aide-memoire as for a formal pleading.

Mr Dalton opened his case and was then sworn for the purpose of giving evidence. After he was sworn the following exchange took place:

"Q. Do you need to refer to any documents during your evidence-in-chief.

A. I believe so, I am led to believe that basically my evidence supplied to the court needs to be documented and proven to be relevant throughout my evidence-in-chief.

Q. What I am referring to at present is any notes that you need to refer to that may assist.

A. Yes, as I stated earlier, I have, in fact, made a full description of my evidence-in-chief.

Q. I am not going to let you read it. I am going to direct your attention to topics and ask you questions about topics. Would you like to have your statement of claim in front of you, would that help you.

A. The further amended, that is not to be used?

Q. No. As I said earlier we won't be using the 4 of June document."

The trial Judge then proceeded to ask questions of Mr Dalton, expressing a preference that he not refer to any document.

Shortly after the commencement of the second day of the trial the following exchange occurred:

"MR DALTON: I'm just seeking some clarification in my own mind as to the limits that you are willing to look at as regards to property, not specifically real property, e.g. land, I mean the greatest percentage of the difficulty and the point of being in this court from my perception is that we're talking of property, disposal of property. The property that I had in my possession prior to the relationship, the property which I no longer have in my possession, are we going to address the issue of property as such, not necessarily as individual items because it has been dealt with in the statement of claim. But will the disposal of property be dealt with?

HER HONOUR: It can be, but let me put this to you; the reason why I've concentrated so far on the real property is because that plainly is the most valuable of the assets, so we start at the top, that's a good place to start.

HER HONOUR: I know that you've told me already of the property you had at the time the relationship commenced and that that includes what you say was a classic car collection and other collectible items and no doubt you will tell me when we get to it what happened at the separation and what happened to your personal property and that's certainly a topic I'm expecting to cover. But, I wouldn't be prepared to go through hundreds of individual items to debate what their worth might have been and to follow to the extent we can what happened to them.

MR DALTON: I didn't expect that you would and that's why we had prepared that further, further and amended, which you obviously stated what you intend to do with that at this stage.

HER HONOUR: Remember also though, a pleading, which a statement of claim is, is not evidence, it simply sets out your case. It doesn't provide any evidence at all of a claim once it gets to trial. If you like, the pleadings define the issues, that's all.

MR DALTON: Yes. Is the court willing to accept the outline of the case which I had originally intended to hand up yesterday? Is that appropriate still?

HER HONOUR: No, you've told me what the case will be and the best picture I will have of the case is from your evidence, so there's no need for me to have that. You did open the case to me yesterday, anyway."

Later on the same day, Mr Dalton was being questioned about various items of personal property and what had become of them. He was giving evidence of a number of items of property which had been returned to him by the police. He was asked if he could give a realistic valuation of the outstanding two-thirds. For that purpose he was permitted to refer to the amended statement of claim. Shortly after he was asked if there was any other property that had been lost to him as a result of the separation. He again referred to the amended statement of claim and the following exchange occurred:

"Q. In this list but I know you don't - substantial property - for example, the motor of the Holden was worth $1,500. I mean, I don't want to spend - I know you don't want to hear it and I don't see the point now but there was substantial - the total of what was lost, this is the reason why I did this exercise was to try and simplify this process and admittedly they are my valuations, and the other party hasn't had a chance to -. I'm stating under the heading of -

Q. I really don't think it's helpful to refer to that document, it's not part of the court file.

A. It's the only way I can come up with some sort of -

Q. You refer to it but don't tell me what headings it's under.

The impression gained from a reading of the transcript of evidence is that, although Mr Dalton may well have been thrown off balance by the trial Judge's attitude to the amended statement of claim on the first day of the hearing, her Honour made it clear that she would not restrict Mr Dalton in leading evidence of property that he had, and which he claimed had been lost, damaged or sold by Ms Arnold. Her Honour did make it clear that she was not interested in minute detail, and there was no doubt that the original statement of claim as amended on the Court file and Mr Dalton's amended statement of claim went into very great detail. It might have been helpful if the trial Judge had enquired of Mr Dalton whether he wished to use the amended statement of claim as an aide-memoire in the giving of his evidence. However, even then it may have been of limited assistance, given the inappropriateness of going into minute detail, and in view of the fact that the values attributed to various items of property were those of Mr Dalton, unsupported by any expert evidence.

In all the circumstances I am satisfied that there was no miscarriage of justice, and that Mr Dalton was not prevented from leading what evidence he wished in support of his claim.

The orders made by the District Court on 6 September 2001 and 28 November 2001 were both stayed by order of this Court on 1 March 2002. The effect of the orders, if the stay were lifted, is that the Goolwa property would be sold and that half the net proceeds of sale would be paid to Mr Dalton. No other order was made by the trial Judge in relation to the Smithfield property or any other personal property because, in the circumstances, any entitlement that Mr Dalton had to an interest in that property was absorbed by his outstanding obligations to Ms Arnold. In the view I have taken of the matter, Mr Dalton is entitled to a further $9,000. I would therefore allow the appeal. I would revoke the stay of the orders of the District Court made by a Judge of this Court on 1 March 2002. I would vary paragraph 1(d) of the order of the District Court made on 28 November 2001 (relating to the disbursement of the proceeds of sale of the Goolwa property) by deleting sub-paragraph (iv) and by inserting in lieu thereof the following:

"(iv) 50% of the gross sale price less the costs, commissions and expenses of sale referred to in paragraph 1(d)(i) hereof plus the sum of $9,000 be paid to the plaintiff."

There should also be an order that Ms Arnold pay to Mr Dalton his disbursements in connection with this appeal, and that those disbursements be paid also from Ms Dalton's share of the proceeds of sale referred to in paragraph 1(d) of the District Court order.

BESANKO J: I agree with the orders proposed by Bleby J and with the reasons that he gives. There is nothing that I wish to add.