Tyms v Williamson

Tyms v Williamson - [2010] NSWCA 138 - NSWCA 2010 case summary — Zoe

[20]

(b) During the relationship 13 During the course of the relationship the Appellant continued to work for State Transit but the Respondent did not work. There was an issue about whether that was because the Appellant did not want the Respondent to work. The Respondent asserted that the Appellant was of a controlling nature and refused to allow her to work outside the home. The evidence in relation to this was somewhat sparse. There were 2 occasions referred to when the Respondent thought of working as a ballet teacher and on another occasion at a café but neither eventuated, it appears, because there were costs associated with child care and also the wage that was being offered for the café job. 14 From the somewhat brief reasons of the Trial Judge it appears that she accepted the evidence of the Respondent that she did not work because the Appellant did not want her to do so. 15 The Respondent's evidence was that she did all of the housework, some of the gardening and work assisting the Appellant to improve the house and garden, and she cared for their pets - a dog and a large number of birds. There was a dispute as to the extent of the work performed by the Respondent, with the Appellant claiming he shared responsibility for the cooking and caring for the pets, and that he did most of the gardening and improvements to the house. He also claimed that his daughter Rochelle, who lived in the house for 2 years from 2000 to 2001, also undertook housework in lieu of paying board. That was disputed by the Respondent. 16 It appears that the Trial Judge accepted, or largely accepted, the Respondent's evidence about the extent of the work in the house and garden that she carried out, and that the Appellant's daughter performed minimal housework. 17 The Respondent received money during the relationship from child support from the father of Dylan and from Family Allowance, all of which totalled in the vicinity of $58,500 over the period of the relationship. Nevertheless, the Respondent accepted that most bills and household expenses were paid for by the Appellant both from his wages and from savings. 18 In addition, the Respondent conceded that the Appellant paid at least some of Dylan's school fees at the local Catholic school, and paid other amounts for expenses associated with him. 19 During the course of the relationship the Appellant cashed in an insurance policy he had with AMP amounting to $15,593.76. That money was paid into his credit union account and was used to pay household and other expenses arising from the relationship with the Respondent. 20 The Appellant was promoted in his job during the course of the relationship. He worked shift work and his annual income varied from $45,399 in 2000 to $64,949 in 2006 (when the relationship came to an end) and subsequently $68,893 the following year. 21 The payments made by the Appellant during the relationship are said to have included the purchase of a Holden Commodore motor vehicle for $4,800. This car was purchased at least partly to enable the Respondent to have a motor vehicle to drive. In addition, the Appellant paid for the Respondent's driving lessons. 22 The Appellant paid private health insurance for himself, the Respondent and Dylan until March 2004. He claims also to have paid for dental work that the Respondent needed to have done. He claims he gave to the Respondent $120 per fortnight that increased to $200 per fortnight for personal use although these figures were disputed. The Respondent acknowledged that the Appellant gave her $120 per fortnight increasing to $150 per fortnight during the last 18 months of the relationship. This was money for her personal use as opposed to money for household expenses. She conceded in any event that the Appellant paid for household goods. 23 By the time the relationship came to an end the New Lambton property had increased in value to $400,000. The Appellant's superannuation had increased to $174,212.45 although at about the time of the hearing it was worth $165,195.54. The evidence did not identify what contributions to the superannuation had been made by the Appellant. The Appellant then had no savings and had a credit card debt of approximately $21,800. That resulted in him subsequently borrowing money on security of the New Lambton property to pay the credit card debt.

[21]

The judgment of the Trial Judge 24 The Trial Judge commenced by noting the 3 stage process that must be conducted in relation to applications of this sort: Baker v Towle [2008] NSWCA 73 at [42]-[43]. 25 Her Honour noted the assets of the parties at the commencement of the relationship and then at the time of hearing. At the time of hearing she noted the house was worth $400,000, and the motor vehicle, the motorcycle, furniture and personal effects were worth about $8000 and superannuation was worth about $165,000. Liabilities were said to be $22,200 so that her Honour assessed the value of his assets at the hearing at about $550,000. 26 Her Honour noted the acknowledgement of the Respondent of the superior contribution of the Appellant financially throughout the relationship but made mention also of amounts the Respondent had received through Social Services and child support. In this regard, her Honour noted the Respondent's acknowledgment that it was the Appellant who provided the majority of income to support the 3 persons although there was irregular child support from Dylan's father. Her Honour noted that the Appellant's adult daughter lived with the parties for 2 years without providing any direct financial contribution. 27 Her Honour then went on to deal with the non-financial contributions from both parties. She said that she preferred the evidence of the Respondent on those aspects which were disputed for 3 reasons which she set out. 28 Her Honour then, in a passage that was discussed at length at the hearing of the appeal, said this: [16] In ordinary circumstances where the parties agree that one will provide income and the other will attend to the household, consideration of an adjustment would commence at the point of an equal distribution . In this case it was conceded by the plaintiff that, because of the defendant's superior direct financial contribution, an equal division of property would be inappropriate and it was suggested an adjustment should be made in her favour of 30 to 35 per cent of the asset pool. The defendant argued that no adjustment should be made because of the deterioration in his financial position resulting from the period of cohabitation. (italics added)

[27]

[23] This is not to say that there needs to be some clear and precise link shown between the contributions and the justice and equity of the adjustment made: by reason of the nature of the test, in many cases the link will be vague, loose and indefinite. But in my opinion, there does need to be some articulation of a link. 42 What is complained about in the present case is that her Honour does not articulate how it is that the contributions to which she refers make the adjustment that she made by dividing the assets on an 80:20 basis, just and equitable. The full extent of her Honour's reasons for dividing the property in the way she did are set out in paras [28]-[29] above. Further, it can be inferred, as I have noted, that the figure of $110,000 is derived from her Honour's assessment of the Appellant's assets at the time of the hearing of $550,000. 43 The Respondent, whilst conceding that her Honour's reasons were brief and at times did not deal with particular matters, submitted that there was no exercise of mathematical precision required, as the cases make clear, and that it was apparent how her Honour reached the position she did from the various matters mentioned in the judgment when it was read as a whole. 44 Whilst making every allowance for the pressures that the Trial Judge was no doubt working under in a busy list and the need for a quick judgment in the matter, it seems to me that her Honour's reasons are inadequate in law for disclosing the means by which she reached the result she did. This is the more so when the judgment was reserved. 45 Quite apart from what was said by this Court in Trosse v Howard at [22]- [23], it is only necessary to recall what was said in the more extensive judgments in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 especially at 270-271, 272-273, 280-281, and the cases which have followed it, to see that her Honour's reasons are inadequate to understand why she came to the conclusions she did. Particular problems with the reasons can now be dealt with in relation to specific grounds of appeal.

[28]

Ground 7 - Appellant's support of the child 46 Her Honour refers only to the child Dylan in 2 circumstances. First, she notes the acknowledgment of the Respondent that the Appellant provided the majority of the income to support the parties and Dylan, and in that regard her Honour noted the child support that was paid by Dylan's father. Secondly, her Honour made reference to the Appellant's claim that he inter-related with Dylan by babysitting when the Respondent was not at home and by taking him to sporting activities. Because, the Appellant claimed, Dylan had behavioural problems it was he (the Appellant) who was required to manage them because the Respondent was unable to do so. 47 In relation to the behavioural problems her Honour preferred the evidence of the Respondent that Dylan did not have behavioural problems and that the relationship between the Appellant and Dylan was simply a poor one. 48 Her Honour makes no other reference to Dylan in terms of contributions, financial or non-financial, that the Appellant made for his benefit. The net result is that her Honour has not provided any reasons for the conclusion that she reached on a division of the property arising out of support, financial or non-financial, for Dylan independently of the fact that the Appellant provided the majority of the income for the family. 49 Her Honour does not refer to the payment by the Appellant of school fees for Dylan, the payment of other expenses for him (all of which were conceded by the Respondent) nor does she give any credit to the Appellant for non-financial contributions in respect of Dylan that the Respondent conceded he made such as making Dylan's breakfast, packing his lunchbox and getting him ready for school. These were matters that s 20(1)(b)(ii) specifically required the Judge to consider. Her Honour's failure to refer to them in her reasons was an error because it leaves undetermined whether or not her Honour had regard to them when making the division of property that she did.

[34]

Re-consideration 62 In considering Ground 2, it should be noted that, whilst it is true that her Honour does not refer especially to the "deterioration" of the Appellant's financial position, she noted that his savings had gone, that he had cashed in an insurance policy and expended it in support of the parties, including the child, and that he had a credit card debt of $22,200. 63 It does not seem to me to be an accurate description to speak of the deterioration of the financial position of the Appellant over the course of the relationship. Although he had spent money from savings and cashed in a policy, the value of his house and superannuation had increased quite considerably. He had received the benefits of the Respondent's contributions to the relationship. It would be more accurate to refer to a change in his financial position. 64 In relation to Ground 3, the submission of the Appellant appears to be that an order which leaves the Appellant in a position where he has no savings, he is in debt before the order is made and thereafter obliged to pay a sum of money to the Respondent is not just and equitable. Such a submission appears to be question-begging because it assumes that leaving the Appellant in that position could not be just and equitable. The submission fails to have regard to the increases in the Appellant's superannuation and house value and, on one level, appears to set at nought the contributions, both financial and non-financial, that the Respondent made to the relationship. 65 At the time of hearing the Appellant had, effectively, only 2 assets. The first was the house worth $400,000 and the second consisted of the amounts standing to his credit in superannuation funds totalling $165,000. There was evidence that the Appellant had borrowed money on a mortgage of the property to pay off the credit card debt of $22,200. There was no evidence of the amount of the mortgage itself - only the credit card debt. 66 In the light of what was said in Chanter v Catts about superannuation, it does not seem to me to be appropriate simply to add the value of the Appellant's superannuation to obtain a total of the asset pool for division. The Appellant has no present access to the superannuation and will not have such access for some years to come. On the other hand, the value of his superannuation increased by approximately $30,000 from the commencement of the relationship until the time of hearing. By reason of the Trial Judge's finding that the agreement was that the Appellant would work outside the home to earn income and the Respondent would make a non-financial contribution within the house, it is appropriate to have some regard to the amount of the increase in value of the superannuation during the period of the relationship. 67 In my opinion, it would be appropriate if the Respondent received, first, 20% of the net value of the house ($400,000 - $20,000 credit card debt = $380,000) and, secondly, half of the increase of the superannuation during the period of the relationship, on the following basis:

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Court

Decision date

Before

Source

Judgment (47 paragraphs)

Parties

Cases Cited (12)