Fiket v Linco [1998] NTSC 37; 145 FLR 456; 23 Fam LR 272

Supreme Court of the NT|1998-06-19|Before: Thomas J

1. I make a declaration that the plaintiff and the defendant were in a de facto relationship between September 1986 and 30 April 1993.

2. I make an award for judgment in favour of the defendant against the plaintiff in the sum of $32,910.80.

3. The defendant is entitled to interest on the amount of the award. The parties requested interest at "Supreme Court Rates". I allow the parties the opportunity to address the Court on the issue of interest and costs.

Pursuant to s13(1) and s18(1) of the De Facto Relationships Act, an order is sought that the respective interests of the plaintiff and the defendant in their property be adjusted in such manner as the Court considers just and equitable.

The defendant admits that the parties lived in a de facto relationship as husband and wife on a bona fide domestic basis from September 1986 until April 1993.

In a counterclaim filed on 21 January 1994, the defendant also seeks, pursuant to the provisions of s13(1) and s18(1) of the De Facto Relationships Act, orders that the property acquired by the parties be adjusted in such manner as this honourable Court considers just and equitable. At the hearing, counsel for the defendant indicated the defendant was seeking an order in favour of the defendant of a 60/40 distribution of their assets at April 1993.

It is not in dispute that the defendant and the plaintiff were married on 21 March 1978. They separated in September 1983 and were divorced on 17 February 1986. The parties reconciled and commenced living together in a de facto relationship in September 1986. The plaintiff maintains they separated "on about 20 August 1993". The defendant asserts the parties separated in April 1993.

The parties agree that for the purpose of the adjustment to be made by this Court, the relevant value of property is that at the date of separation.

The relevant provisions of the De Facto Relationships Act, in respect of the adjustment of property, are s18(1)(a) and (b), which provide as follows:

"(1) The order which a court may make under this Division with respect to the property of de facto partners or either of them is such order adjusting the interests of the partners in the property as the court considers just and equitable having regard to -

(a) the financial and non-financial contributions made directly or indirectly by or on behalf of the partners to the acquisition, conservation or improvement of any of the property or to the financial resources of the partners or either of them; and

(b) the contributions (including any made in the capacity of homemaker or parent) made by either of the partners to the welfare of the other partner, or to the welfare of the family constituted by the partners and one or more of the following ....."

The first issue between the parties is the period of time the Court should take into account in making the order for the adjustment of property.

The parties have met the relevant conditions for the making of an order under the provisions of the De Facto Relationships Act . Both parties lived in the Northern Territory on the day on which the application was lodged, s15(a). Both parties lived together in the Northern Territory for not less than one third of the period of their de facto relationship, s15(b)(i). The de facto partners lived together in a de facto relationship for a period of not less than 2 years, s16(1). The application for property adjustment was made before the expiry of a period of 2 years from the date the relationship ended, s14(1).

Counsel for the plaintiff, Mr Waters QC, submits the starting point should be September 1986 when the parties resumed co-habitation, to 20 August 1993 when the parties separated.

The submission by Ms Gearin for the defendant, is that this Court should look at the totality of the relationship commencing on the date the parties married in March 1978, until the date of their final separation in April 1993.

The defendant relies on the provisions of s17 as the statutory basis enabling this Court to take into account the previous marriage of the parties. The defendant's submission is that, in looking at the respective contributions of the parties, regard should be had to the contributions each made during the time of the marriage. Section 17 of the De Facto Relationships Act provides as follows:

"The facts and circumstances that a court may take into account in deciding whether or not to make an order under this Division include facts and circumstances that arose or occurred before the commencement of this Act or outside the Territory."

I do not agree with the submission that in adjusting the interests of the partners in the property this Court should take into account the period of time during which the parties were married. I agree with the submission made by Mr Waters QC for the plaintiff that the De Facto Relationships Act is very different from the Family Law Act (Cwth) which makes provision for distribution of property between couples who are married. The Northern Territory De Facto Relationships Act came into force on 1 October 1991.

In the course of the Second Reading Speech on 8 May 1991, the Attorney-General, Mr Manzie, stated as follows:

"In following the recommendations of the Law Reform Committee Report, the bill before the House is modelled substantially on the De Facto Relationship (sic) Act of New South Wales. In turn, that act implements the recommendations of a report by the New South Wales Law Reform Commission. The bill does not confer on de facto partners all the legal rights and privileges of married spouses. Rather, it seeks to modify the present harsh operation of inflexible rules of law which govern the financial interests of de facto couples. ...."

In the s3 of the Act, "de facto relationship" is defined as follows:

".... the relationship between de facto partners, namely the relationship of living together as husband and wife on a bona fide domestic basis although not married to each other;"

The New South Wales De Facto Relationships Act 1984 was considered by Mahoney JA in Wallace v Stanford (1995) 37 NSWLR 1. Mahoney JA was considering the provisions of s20 of the NSW De Facto Relationships Act which is equated to s18 of the Northern Territory De Facto Relationships Act. He stated at p13:

"If follows from this that, in determining whether an order should be made and what that order should be, the Court is, in the sense to which I shall refer, constrained by what have been the 'contributions' of the parties and the balance between them. The term 'contributions' has the meaning to which I have referred: it extends not merely to financial and non-financial contributions to property but to the more general contributions referred to in s20(1)(b). It is those contributions and their contribution to the property or financial resources of the parties and to their welfare to which consideration is limited. It is upon this basis that the Court is to determine what is just and equitable in the particular case."

Mahoney JA had earlier (at p11) referred to the fact that the De Facto Relationships Act was enacted upon the basis of a model prepared by the New South Wales Law Reform Commission following the Law Reform Commission, Report on De Facto Relationships , No. 36 of 1983. His Honour stated at p11 "In my opinion it is clear from the report that the restricted remedy was that proposed by the Commission." He then noted that the Commission "rejected the equating of de facto relationships with marriage (par 5.42)."

Section 20 of the NSW De Facto Relationships Act was also considered by the New South Wales Court of Appeal in Evans v Marmont [1997] NSWSC 331; (1997) 42 NSWLR 70. Before turning to the specific provisions of s20, Gleeson CJ and McLelland CJ in Equity made the following general observations (at 78-9):

".... It was not the intention of the New South Wales Parliament in 1984 to equate de facto relationships with marriage, or to make the same provisions with respect to de facto partners as the Family Law Act , at the time, made with respect to married people.

There are some similarities between the provisions of the Family Law Act and those of the De Facto Relationships Act . There are also differences. Those differences are substantial, conspicuous, and deliberate. The significance of both the similarities and the differences was remarked upon by Clarke JA in Black v Black (at 113), and we agree with what his Honour there said.

There are at least two major reasons for the differences. The first relates to the limited purpose of the New South Wales Act, which will be explained below. The second relates to the essential legal nature of marriage, which is referred to in the Family Law Act (s43) as an institution, and which is given by that Act its common law meaning as being 'the union of a man and woman to the exclusion of all others voluntarily entered into for life'. Marriage involves matters of legal status and public commitment. Included in the formal commitment undertaken by people who marry, and reflected in s72 of the Family Law Act , is a mutual undertaking by each party to maintain the other to the extent of their respective abilities and needs. No such commitment need be involved in a de facto relationship; hence the substantial differences between the way in which the two Acts address the subject of maintenance."

In the matter before this Court the parties married in Darwin on 21 March 1978. They separated in September 1983. On 17 February 1986 they divorced. There was no property settlement at that time. The evidence of Mrs Linco is that she did not seek a property settlement from the plaintiff because she was in fear of him. In September 1986, the parties commenced a de facto relationship which continued for almost seven years until their relationship ceased in April 1993.

Whatever may have been the beliefs or feelings of the defendant in respect of seeking an order for settlement at the termination of the marriage, she did subsequently enter into a de facto relationship with the plaintiff. There is no evidence to suggest that this relationship was not entered into freely and voluntarily by both parties. They chose to live in a de facto relationship. It is pursuant to the De Facto Relationships Act that this application is made. Very different considerations apply in respect of claims for property under the Family Law Act as distinct from the De Facto Relationships Act .

I agree with the submission made by Mr Waters QC for the plaintiff, that s17 involves a threshold question. That is, it gives the power to take into account facts and circumstances that occurred before the commencement of this Act or outside the Territory in deciding whether or not to make an order at all under the De Facto Relationships Act . I do not consider the provisions of s17 of the De Facto Relationships Act entitle the Court to look at a prior marriage for the purpose of determining the adjustment of property.

I note also the provisions of s51 which provides as follows:

"(1) Subject to subsection (2), this Act applies to a person who has been a de facto partner before its commencement.

(2) This Act does not apply to or in relation to a de facto relationship which ended before the commencement of this Act, or to a person insofar as he or she was a partner in such a relationship.

(3) References in this Act to cohabitation agreements and separation agreements include references to agreements made before its commencement."

Because I have given the more limited interpretation to the effect of s17 urged on this Court by counsel for the plaintiff, it must follow that the period of time which will be taken into account for the purpose of s18 commences on the date the parties began the de facto relationship, in September 1986.

With respect to the construction of s18 I apply the principles expressed by Mahoney JA in Wallace v Stanford (supra) and by Meagher JA in Evans v Marmont (supra) at 97-8:

"Section 20 enables a court to 'make such order adjusting the interests of the partners in the property as it seems just and equitable having regard to' two specified factors. Those two factors both relate to the contributions, direct and indirect, made by each of the partners to either the property or the welfare of them both. As a matter of English that can only mean that the court may have regard to each of the two factors and not to any other factors. In particular it precludes the court, in a s20 application, from having any regard to fault, needs, maintenance, compensation, expectation damages, reliance damages or quasi-equitable damages. ...."

I now turn to look at the respective contributions of the parties and commence with a list of the assets held by the parties as at September 1986.

3. 1 Toyota utility (value unknown because under hire purchase (Fiket t/p 57-8)).

4. An amount of $3197.38 in a bank account with the Commonwealth Bank.

5. Unsold fish caught during the month of August for which he received $16,981 on 6 October 1986 (all of this money went back into the business).

1. A unit in Alice Springs - paragraph 26 of affidavit 3/9/96 (Exhibit 16) read with evidence of Mrs Linco at t/p 120.

"Right. Will you just identify for us then what it is that you wish to change?---Paragraph 26.

Right?---I've notice there is a mistake in that it says: 'I refer to paragraph 20 of the affidavit and say that I had purchased a unit in Alice Springs in my name during separation. I had a bank account in credit of 20,000'. Actually there is an error. After the sale of the unit in Alice Springs, I had a bank account of 20,000, but not both, meaning not a townhouse in Alice Springs and the account of 20,000.

And where did the 20,000 come from?---It came from proceeds of sale of that townhouse in Alice Springs in (inaudible) Place."

4. New fridge and washing machine ($1,188 - Exhibit 17).

I now turn to consider the respective contribution of the parties during the period of the de facto relationship.

Direct financial contribution of the plaintiff and the defendant

The defendant purchased unit 3, 7 Gailes Court, Northlakes on 17 June 1987 for $63,250 (Annexure B to the affidavit of Martin John Reynolds sworn 16 April 1997 - Exhibit 12). Mrs Linco purchased the unit from the proceeds of sale of her unit in Alice Springs and with the assistance of a loan from the Northern Territory Housing Commission. The parties lived in this unit during the period of the de facto relationship.

I accept the evidence of Mrs Linco that on 20 June 1987 she purchased a Ford Laser motor vehicle with monies from her own bank account. I find that the defendant purchased a dining table and chairs for use in the unit from Jape Furniture on 7 September 1987 in the sum of $957 (Exhibit 18). I accept her evidence (t/p 137) that she was never reimbursed for these items.

Mrs Linco gave evidence that in August 1987 she provided her unit as security to enable monies to be provided to Mr Fiket to complete the building of a barge for his fishing business. I accept her evidence that this was done at the request of Mr Fiket because he could not get a loan from the bank without security. Where the evidence of Mrs Linco conflicts with the evidence of Mr Fiket on this point, I reject the evidence of Mr Fiket.

I accept the evidence of Mrs Linco that Mr Fiket contributed very little to the household expenses. Mrs Linco gave evidence as follows (t/p 139):

"During the time that you lived with Mr Fiket from September of 1986 until you separated in 1993, did he ever pay any rent to you?---No.

Did he ever make any contribution to the household expenses?---On very few occasions.

Right. And what contributions did he make?---He would sometimes give some money for the food and he did pay electricity and telephone bills.

And was that the limit of his contribution?---As far as I can remember, yes."

"After approximately 1 July 1989 the plaintiff started to make money in his business as a fisherman. From then on I was able to give 95% of my income to the Housing Commission in order to repay the Housing Commission mortgage. The plaintiff would give me $100.00 per week to purchase food and also pay the bills. After November 1991 I paid for food for the household and all the small bills and expenses whilst the plaintiff paid for telephone and electricity accounts. This was done as he was able to claim these as business expenses. I paid for the rates, building insurance premiums and all the expenses associated with the unit."

Under cross-examination Mrs Linco's evidence is that the $100 per week for food and bills referred to in her affidavit, was an average of $100 per week.

During the period of the de facto relationship, Mrs Linco continued in full time employment. In 1986 she earned $24,000. In 1993 when the parties separated she was earning $30,000.

The defendant's total income from 1986 to 1993 was $170,568.

During the same period, the plaintiff's taxable income was as follows:

The financial contribution made by the plaintiff commenced after 1 July 1989 when the plaintiff started paying an average of $100 per week to purchase food and pay the bills. After November 1991 the defendant paid for food and other expenses, the plaintiff paid the telephone and electricity accounts.

I do not accept the evidence of the plaintiff that the defendant had unlimited access to his bank accounts and that she drew money from his account and spent it as she required it.

I am satisfied that during a substantial period of the de facto relationship the money the plaintiff earned was either for his own use or went back into his business. He was, during a substantial period of the relationship, primarily dependent upon the defendant for his board and keep. Between July 1989 and November 1991, Mr Fiket paid an average of $100 per week to Mrs Linco for food and payment of some bills. This enabled Mrs Linco to concentrate on repaying the Housing Commission mortgage on her home unit. This was the only time Mr Fiket made a regular contribution to the expenses of running the home.

It is not in dispute that Mr Fiket paid a total of $40,000 into a cash management account in the defendant's name. On 27 September 1991 the defendant withdrew $9,550 from the cash management account to pay off the mortgage on her unit. I accept the evidence of Mrs Linco that from this cash management account an amount of $10,000 was also withdrawn for the plaintiff's land lease in Tennant Creek. On 13 July 1993 the defendant closed the account and deposited the funds remaining in the account, namely $36,917 .83 into a cash management account in the name of the plaintiff. Clearly there was more than $40,000 paid into the cash management account. I am satisfied that the defendant paid money into the cash management account in addition to the amount of $40,000 paid into the account by the plaintiff. On the evidence I am not able to make a finding as to the exact amount the defendant paid into the cash management account whilst it was in her name. I accept the evidence given by Mrs Linco that when she transferred the sum of $36,917.83 into the name of Mr Fiket on 13 July 1993 it was at a very tense time in their relationship. I accept her evidence she acted in fear and without making a claim for her share of these funds. I accept her evidence that she made no claim for her share at the time because she wanted peace. I find on the balance of probabilities Mrs Linco did pay into this account $3,200 from her key card account and $5,000 from her Tattslotto winnings.

Although the plaintiff put the bulk of his income back into his business for the maintenance of his boat and purchase of nets and other items, the investment in his business did not result in assets of equivalent value at the time of the separation of the parties. An example of this can be found in the evidence of Captain Bernd Alfred Robert Richter who conducted a survey of the vessel known as "The Last Hope" owned by Mr Fiket. An affidavit prepared by Captain Richter is Exhibit 10 in these proceedings. An appendix to this survey was tendered and marked Exhibit 11. Captain Richter estimates the value of the boat "The Last Hope" in 1993 as being about $6,000. With the dinghy, outboard motors and other equipment the total amount would be $7,250. Captain Richter agreed that the vessel was in pretty poor condition. Under cross-examination Captain Richter gave evidence (t/p 98) as follows:

"Is there any way that you can imagine that a figure of about $55,000 was spent on building this boat?---Oh yes, I mean I've seen more than that, yes, that happens - things like that happens (sic), yes.

What causes that?---People are building boats, for instance, they think they can build boats out of all sorts of material, don't have the background. Don't have professional advice.

Very incompetent, is that what you're saying?---For doing the task." Indirect financial contribution of the plaintiff and the defendant

Mrs Linco gave quite detailed evidence as to the work she did assisting the plaintiff in his business. In summary her evidence on this aspect was as follows:

Mrs Linco stated she spent an average of one day per week during the fishing season (which is between February and September each year) looking after Mr Fiket's paperwork. This included doing his bookkeeping, collating receipts, filing receipts and entering them in the ledger, paying his accounts, making purchases on his behalf, assisting in the packaging and delivery of his goods, opening accounts for him and attending with him on his accountant. In respect of audits by the taxation department at the end of each financial year she would work on his books for at least ten days reconciling the books and making sure they complied with tax regulations. On six or seven occasions Mrs Linco accompanied Mr Fiket to Timber Creek for a variety of reasons, which included assisting him with obtaining permits, negotiating the lease of a block of land, to recover confiscated fishing nets, to deliver nets and other materials required for his fishing purposes and opening a credit account with the Motor Inn in Timber Creek.

I found Mrs Linco to be an impressive and credible witness. I accept her evidence on this aspect in preference to the evidence given by Mr Fiket. Mr Fiket gave evidence that the defendant spent, at most, two days a year on the bookkeeping for his business. I am satisfied that Mrs Linco spent the time she has indicated in her evidence in assisting Mr Fiket with his business. The evidence of Mrs Linco is supported, to some extent, by the affidavit of Ms Carol Borovic sworn 16 October 1996 (Exhibit 27). Ms Borovic prepared the taxation returns for Mr Fiket. Ms Borovic attests to the skill and thoroughness of Mrs Linco in the preparation of the books from which Ms Borovic prepared the taxation returns. Ms Borovic also makes reference to the fact that Mrs Linco has a much better command of the English language than Mr Fiket and assisted with conveying questions and advice.

The affidavit of Jorgen Gronholt, manager of Nautical Supplies, sworn 4 December 1996 (Exhibit 28) attests to the fact that Mrs Linco would come to Nautical Supplies Pty Ltd on average a few times each year to purchase supplies for the fishing business.

I am satisfied that in the work Mrs Linco did assisting the plaintiff in his fishing business, Mrs Linco made a significant contribution to the fishing business conducted by Mr Fiket. This assisted Mr Fiket to earn an income as a fisherman.

I accept the evidence of the defendant in paragraph 42 of her affidavit of 3 September 1996 (Exhibit 16) that she provided the plaintiff with free accommodation and did all of the cooking, washing and ironing for the plaintiff.

The plaintiff was absent from the home for at least two weeks in every month during the six months of the fishing season. Apart from these absences he resided with the defendant in her unit. The contribution made by the defendant in maintaining a home for the plaintiff, in preparing meals for him and in doing his washing and ironing during the 6 _ years of the de facto relationship was a significant contribution.

Mr Fiket gave evidence as to certain work he did in maintenance of the unit including painting the unit throughout and paving the backyard. The evidence of Mrs Linco is that Mr Fiket painted one bedroom of the unit and put down a 3x2 metre concrete slab in the backyard on which to place his engine. I prefer the evidence of Mrs Linco to the evidence of Mr Fiket on this aspect. I find that apart from the two matters mentioned by Mrs Linco, Mr Fiket did not carry out any other improvements to the unit owned by Mrs Linco.

Mr Fiket was the owner of an A1 barramundi licence. There is no evidence as to the value of the licence at the time the parties commenced a de facto relationship. Because of the government buy back scheme, the licence had a potential value as at the date of separation. The licence was in Mr Fiket's name and was acquired by him. He maintained the licence by working as a fisherman throughout the period of the relationship. I take into account his contribution to the value of the barramundi licence. However, Mrs Linco also made a significant contribution by assisting with the plaintiff's business activities which enabled him to earn an income with the licence and to maintain the value of the licence.

I accept the matters set out in paragraph 54, 55 and 56 of the defendant's affidavit (Exhibit 16) which state as follows:

"54. During the time that we were together from 1986 until 1993, the plaintiff spent money to acquire the following assets:

55. In addition between 1988 and 1993 the plaintiff spent $26,155.35 to improve the barge with new additions and approximately $30,272.00 on purchase of fishing nets and sundry gear. He carried out repairs to the freezer truck, replaced the airconditioning on the freezer unit and spent in total $19,978.60 on improvements.

56. After approximately 1 July 1989 the plaintiff started to make money in his business as a fisherman. From then on I was able to give 95% of my income to the Housing Commission in order to repay the Housing Commission mortgage. The plaintiff would give me $100.00 per week to purchase food and also pay the bills. After November 1991 I paid for food for the household and all the small bills and expenses whilst the plaintiff paid for telephone and electricity accounts. This was done as he was able to claim these as business expenses. I paid for the rates, building insurance premiums and all the expenses associated with the unit."

Whilst the plaintiff expended substantial sums of money on various items associated with his fishing business, I have accepted evidence that these assets were of little value as at the time of separation in April 1993.

It is the defendant's case as pleaded that the parties separated in April 1993. In final submissions, counsel for the plaintiff conceded the date of separation as being April 1993. I make a finding that the date of separation was 30 April 1993.

There is an issue between the parties in respect of the way in which this Court should take into account Mrs Linco's superannuation entitlement as at the date of separation. Exhibit 23 indicates Mrs Linco's total equity in the Commonwealth superannuation fund as at 30 June 1993 was $27,647.12. This is the figure Ms Gearin, counsel for Mrs Linco, submits as the amount to be included in the assets of the defendant as at the date of separation.

Mr Waters QC, counsel for the plaintiff, argues that it is not appropriate to simply take the figure $27,647.12 but rather this Court should apply the formula as set out in the authority In the marriage of West, LE and Green , JA ( formerly West ) 1993 FLC 92 - 395. The plaintiff arrives at the following figures.

I am not persuaded that it is appropriate to apply the formula as expressed in the authority of West, LE and Green, JA (supra). This decision related to a marriage separation and under the Family Law Act different considerations apply. In addition, the basis of the calculation in that case was that the contributions of the parties should be treated as equal. This is not the position in the matter before this Court.

Nevertheless, the method of calculation by counsel for the plaintiff adopts the West and Green approach in part, and in my opinion, arrives at a just and equitable assessment, in this case, of the value of the defendant's superannuation as at the date of separation which I have found to be 30 April 1993.

I set out hereunder the calculations made by Mr Waters QC in respect of the superannuation of the defendant:

Contributions between 08/01/1981 and 22/01/1998: $29,580.00

Defendant contributing for 17 years @ $3,544.12 per year

Ignoring contribution during years of 1981 to 1983: $26,580.90

Total contribution from 01/10/1988 to 13/01/1998=$8,920.00

Period of total involvement in scheme 9 years, 3 months,

Period of cohabitation 01/10/1988 to Saturday 1 April 1993

Percentage distribution during relationship/total contribution 48.64%

Note: These calculations (to the defendant's advantage) ignore the marriage and the West v Green approach to contributions to date of retirement"

I have made an adjustment to the final figure to allow for the fact that I have made a finding that the date of separation was 30 April 1993, not 1 April 1993 as appears in Mr Waters' calculations.

I find that at the time of separation the defendant owned the following assets:

The most contentious issue in respect of the assets owned by Mr Fiket at the time of separation is the value of the fishing licence and the contribution, if any, by the defendant to that asset. For this reason, I will analyse the evidence in respect of the value of the fishing licence and state the reasons for my conclusion as to its value. The defendant called Mr Darryl Grey to give evidence. Mr Grey gave evidence by affidavit sworn 25 October 1996. Following objection by counsel for the plaintiff, certain parts of the affidavit were excluded. The affidavit in its amended form was tendered as Exhibit 22. At the time of swearing the affidavit Mr Grey was the Director of the Fisheries Division of the Department of Primary Industry and Fisheries in the Northern Territory of Australia. He had at that time been employed in the Fisheries Division for 25 years. In his affidavit, at paragraphs 5 and 6, Mr Grey attests as follows:

"5. Karel Fiket was first endorsed in the Northern Territory with an A1 barramundi fishing licence in 1980. In 1981 his licence was endorsed to include a crab licence as well. It was just prior to this that the licences became transferable and thus marketable.

6. Since that time licences have become transferable and have become a marketable commodity. In recent years the Department bought back certain licences but at the present time we are not doing so. From my knowledge of the industry at the present time an A1 barramundi licence with a boat sells for approximately $200,000.00. To sell the barramundi licence only one might expect to receive between $160,000.00 to $180,000.00. There are only 28 barramundi licences left in the Northern Territory and they are valuable property."

Paragraphs 5 and 6 were admitted over objection made by Mr Waters QC. The fundamental concern raised in objection was that Mr Grey was not qualified as an expert and not entitled to give evidence as to the value of the A1 fishing licence owned by Mr Fiket. Mr Grey gave evidence on the aspect of his qualifications (t/p 177-8) which I summarise as follows:

Mr Grey stated he began his career with fisheries in 1971. From 1971 to 1978 he had responsibility for research and management advice to government on the barramundi fisheries in particular. He was involved in discussions with the Fishing Industry Council, the Barramundi Fishermen's Association and government ministers and other people in the department regarding the management of fishing in the Northern Territory. He was involved in the development of the government buy back scheme and was party to the negotiations which determined the valuation, via the government, of those licences at that time. His primary responsibilities were in regard to research into the fishing industry. However, he was familiar with the formula struck by government to determine the valuation of the licences when those offers were made for the fishermen to accept the buy back scheme. Mr Grey stated he was not qualified regarding the valuation of the licence because he formed his opinion as to the valuation on information provided by the Fishing Industry Council and those who were in the market for a licence, or had been involved in negotiations for the sale of a licence. Mr Grey explained there is little, if any, information on the public record of the value of the licences because fishermen are not obliged to inform the government of the fee, or of the sale and purchase values. His opinion is based on personal experience with the barramundi fishing industry, information obtained through his close association with the Fishing Industry Council and having known and spoken with a large proportion of the fishermen in the industry. This information was provided to him in his capacity as a senior officer with the Department of Primary Industry and Fisheries.

I ruled that the evidence was admissible as expert evidence for the following reasons:

Without the assistance of an expert as to the value of a fishing licence this Court would be incapable of forming a judgment as to its value. It is not a matter a court could determine for itself.

Mr Grey is able to give such evidence based on his own experience and study, as detailed in the course of these reasons for judgment.

Mr Grey's own profession and experience gives him more opportunity of judging than other people.

There is a recognisable body of knowledge within the fishing industry and the fisheries department to which Mr Grey is privy which would render his opinion of assistance to the court.

Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486; R v Bonython (1984) 38 SASR at 45, see also 1996 Edition of Cross on Evidence paragraph 29050. See also Milirrpum v Nabalco (1971) 17 FLR 141 at 160.

Counsel for the plaintiff, Mr Waters QC, in the course of this objection to Mr Grey giving evidence as an expert, acknowledged there is a recognisable body of knowledge relating to valuation of fishing licences (t/p 180).

The essence of the objection to Mr Grey giving evidence as to the value of the barramundi licence was that Mr Grey was not sufficiently qualified as an expert. I do not accept this submission.

I accept the evidence given by Mr Grey relating to the government buy back scheme and to the consequent value of fishing licences. Mr Grey's evidence was that the barramundi buy back scheme was introduced with the primary aim of reducing the amount of commercial effort in the fishing industry. The government had identified the excessive effort in the commercial fishing area and that returns to fishermen were declining. The government was concerned about the state of the resource and embarked on a process over a number of years to reduce the number of licences in the industry. In buying back the licences, a formula was devised which took into account the amount of fish the operator had taken in the previous three years and (t/p 184):

"provided a recognition of a person who had exerted him or herself and who had quite substantial returns from their licence, making sure that they received an appropriate valuation as opposed to those who had simply sat on the licence and not utilised it ...."

Mr Grey stated an A1 licence indicated it was a licence to catch barramundi and that the licence was transferable. Mr Grey stated in cross-examination that he did not know the value of A1 licences on the open market as at 1993. His evidence is that the government was offering fishermen between $160,000 to $170,000 to buy back licences in 1993. This was dependent on the fisherman's commitment to the industry. There were only a very few people at the top, in regard to their own effort and exertion, who received offers in that range. The range went down to below $100,000 depending on the extent of the input to the licence and to the fishery. As at 1993, Mr Fiket was not regarded as one of the top fishermen, he was about halfway down the list.

I accept the evidence given by Mr Grey. Mr Grey, in his evidence, stated he was not qualified in respect of the valuation of fishing licences. I interpreted this to mean he had no formal qualification such as a certificate or accreditation with a recognised body. However, there is no evidence that such a formal qualification exists. I base my finding that Mr Grey is an expert on the basis of his experience, the knowledge he had acquired and the position he held within the Department of Primary Industry and Fisheries. On the basis of his evidence I assess the value of the A1 licence owned by Mr Fiket as at 30 April 1993 as being an amount of $120,000. I note that in an affidavit sworn 16 April 1997 (Exhibit 2), the plaintiff deposed to the following:

"4. I currently have a barramundi fishing licence number 97/A1/043 which consists of 10 units and which allows me to fish with a gill net of up to 1000 metres in length. Whilst I do not wish to sell that licence, if I did, I would not accept less than $110,000.00 for it."

I find that as at the date of separation the plaintiff's assets were as follows:

I should note in respect of the cash management account that it was not actually transferred to the plaintiff's name until July 1993. However, as at the date of separation, 30 April 1993, it was in fact acknowledged as an asset owned by the plaintiff.

On the evidence before the Court, I find that Mrs Linco made a substantial contribution in the following three ways:

(1) A direct financial contribution in providing free accommodation during the period of the de facto relationship. For a number of years during the relationship she paid for all the food and incidental expenses of running a home. In addition, providing her unit as security to enable the plaintiff to complete the building of his barge for his fishing business, which enabled him to earn an income.

(2) An indirect financial contribution in respect of the assistance, previously detailed, given in respect of the running of the plaintiff's business. This enabled the plaintiff to conserve his primary asset which was the barramundi fishing licence. It also assisted the plaintiff to earn an income.

(3) An indirect financial contribution by doing all the cooking, cleaning, washing and ironing for the plaintiff.

The defendant's contribution to the actual value of the licence is difficult to quantify. I agree with the submission by counsel for the plaintiff that the licence had a value irrespective of whether it was used. It was a licence acquired by Mr Fiket prior to the commencement of the relationship and its value was really due to administrative arrangements within the Northern Territory Government. However, the evidence of Mr Grey is that any payment by the government under the buy back scheme did have regard to the effort and exertion of the individual fisherman. Amounts paid for licences ranged from below $100,000, up to $160,000 and $170,000 for the top fishermen. Mr Fiket was about half way down the range. The contribution made by the defendant assisted Mr Fiket to be above the lowest limit of the range. Mrs Linco's efforts, under all three of the categories listed above, enabled Mr Fiket to continue in the business of the fishing industry and to catch fish and earn an income. The licence was, at the time of separation, a valuable asset. Mr Fiket must also be given credit for his contribution to this asset. The licence was in his name and he brought this into the de facto relationship. He continued to work as a fisherman and used his income as a fisherman to put back into the business, including cost of maintaining his boats and fishing equipment. His efforts also maintained the value of the licence at the amount I have placed on it.

There is considerable evidence the defendant assisted the plaintiff in his business. There is no evidence the plaintiff assisted the defendant to earn an income.

I have made findings as to the work the plaintiff carried out on the home unit owned by the defendant and take that into account.

For a substantial part of the de facto relationship the plaintiff received effectively free board and accommodation. When he did make a financial contribution it was to pay the telephone and electricity bills and to pay for food.

I have found that $9,550 was withdrawn from the cash management account to which the plaintiff had contributed $40,000. This amount of $9,550 was used to discharge the mortgage over the home unit owned by the defendant. However, I have also found the defendant contributed to this cash management account and at the termination of their relationship over $36,000 from the cash management account was transferred into the name of the plaintiff.

Based on my findings I consider that a just and equitable adjustment of the property to be an order that Mrs Linco is entitled to a distribution of assets on a 55/45 percent basis.

1. I make a declaration that the plaintiff and the defendant were in a de facto relationship between September 1986 and 30 April 1993.

2. I make an award for judgment in favour of the defendant against the plaintiff in the sum of $32,910.80.

De Facto Relationships Act 1991

New South Wales De Facto Relationships Act 1984

De Facto Relationships Act 1991

New South Wales De Facto Relationships Act 1984

At a glance

Court

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Before

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Judgment (136 paragraphs)

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Legislation Cited (4)

Cases Cited (4)