FEDERAL CIRCUIT COURT OF AUSTRALIA
TYRRELL & WATTS	[2015] FCCA 215	

Catchwords:
FAMILY LAW – De facto property settlement – weight of initial contributions.	

Legislation:
Family Law Act 1975: ss.75(2), 90SM, 90SK, 90SB, 90SL, 90SE, 90SG, 90SF
Family Law Amendment (De Facto Financial Matters and Other Measures) Act
2008: Part VIII(a)(b) 
Child Support (Assessment) Act 1989	

Cases cited:
Re F: Litigants in Person Guidelines (2001) 161 FLR 189 
Neil v Nott (1994) 121 ALR 148 at 150
Stanford v Stanford (2012) 293 ALR 70
Hickey and Hickey (2003) FLC93-143
Bevan & Bevan [2013] FamCAFC 116
In the marriage of Lee Steere (1985) FLC 91-626
In the marriage of Ferraro (1993) FLC 92-335 
In the marriage of Clauson (1995) FLC 92-595
Russell and Russell [1999] FamCA 1875; (1999) FLC 92-877
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Pierce and Pierce (1999) FLC92-844 
Kowaliw (1981) FLC 91-092
In the Marriage of Rob, G and Robb, DJ [1994] FamCA 136; (1995) FLC 92-555	

Applicant:	MS TYRRELL	

Respondent:	MR WATTS	

File Number:	NCC 210 of 2013	

Judgment of:	Judge Myers	

Hearing dates:	7 and 8 August 2014	

Date of Last Submission:	14 October 2014	

Delivered at:	Newcastle	

Delivered on:	4 February 2015	

REPRESENTATION:
Solicitors for the Applicant:	Powe & White Family Lawyers	

Solicitors for the Respondent:	Self Represented	

ORDERS
(1)	That within 42 days of Order the Respondent pay to the Applicant the sum of $43,228.50 ("the payment").
(2)	That should the Respondent fail to make the payment and remain in default of making the payment for a period of 14 days the following to apply:
(a)	The Respondent cause the property situate at and known as Property V in the State of New Wales being the property more particularly described in Folio Identifier (omitted) ("the home") to be listed for sale by private treaty with (omitted) Real Estate in the State of New South Wales for an initial asking price of  $410,000.
(b)	Should the home not be the subject of an exchanged and unconditional Contract for Sale within a period of 6 months from the date of the Orders herein then the Respondent to do all acts and things to cause the home to be listed for sale by public auction with such public auction to occur on the first Saturday 6 months from the date of the orders herein and the reserve price shall be 5% less than the price the home was last offered for sale by private treaty.
(c)	Should the home fail to sell at auction pursuant to order 2 (b) the home shall be auctioned every 4th Saturday thereafter and the reserve price shall be reduced and be set at 2% less than the reserve priced of the preceding auction until sold;
(d)	Upon the sale of the home whether by private treaty or public auction the Respondent cause the proceeds of sale to be distributed as follows:
(i)	In the payment of the reasonable real estate agent's fees and disbursements in acting in the sale;
(ii)	In payment of the reasonable fees and disbursements of the auctioneer (if any) in acting in the sale;
(iii)	In payment of all monies due and payable pursuant to the mortgage registered against the title to the home;
(iv)	In the payment of any municipal rate adjustments;
(v)	To the Respondent the amount of $43,228.50 together with interest such interest to accrue as and from 42 days from the date of Order herein.
(e)	That pending the sale of the home the Respondent to maintain the home including the dwelling and the grounds of the home in a neat and tidy state.
(f)	That pending the sale of the home the Respondent to do all acts and things to facilitate inspection by any potential purchaser and/or listed agent or agents or auctioneer or auctioneers at all reasonable times.
(g)	That the Respondent do all acts and things to ensure the home is insured at full replacement value.
(3)	Subject to the above orders each party shall be solely entitled to the exclusion of the other to all property and chattels of whatsoever nature and kind in the possession of such party as at the date of these Orders and that for such purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank's records thereof, insurance policies are deemed to be in the possession of the beneficiary thereof and superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for  payment out of such entitlements.
(4)	 Subject to the above orders each party shall indemnify the other for any liability attaching to any property, whether that be realty or personalty to be retained by the party
(5)	The Respondent and Applicant do all acts and things and give all consent and execute all documents and writings necessary to give effect to the Orders made herein.
(6)	That in the event that either party refuses or neglects to execute any Deed or instrument necessary to give effect to all or any of the Orders made herein, the Registrar of the Court be appointed pursuant to Section 106A of the Family Law Act 1975 to execute such Deed, instrument or Real Property transfer in the name of said party and to do all acts and things necessary to give validity to the operation to the said Deed or instrument, and the Registrar is authorized to execute any such necessary instrument upon being satisfied by Affidavit that neglect or default, as the case may be has occurred.

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

(1)	
FEDERAL CIRCUIT COURT 
OF AUSTRALIA 
AT Newcastle	
NCC 210 of 2013
MS TYRRELL	
Applicant

And

MR WATTS	
Respondent

REASONS FOR JUDGMENT
1.	This matter concerns competing applications for property settlement between Ms Tyrrell hereinafter referred to as “the Applicant” and Mr Watts hereinafter referred to as “the Respondent”.
2.	Proceedings were commenced by the Applicant filing an initiating application on 4 February 2013. At the commencement of the hearing, before the court on 8 August 2014, the Applicant sought orders  formulated in the Applicant’s Outline of case document that are set out below:
a)	That within 42 days of Order the Respondent pay to the Applicant the sum of $60,000 ("the payment").
b)	That should the Respondent fail to make the payment and remain in default of making the payment for a period of 14 days the following to apply:
i)	The Respondent cause the property situate at and known as Property V in the State of New Wales being the property more particularly described in Folio Identifier (omitted) ("the home") to be listed for sale with (omitted) Real Estate in the State of New South Wales for an initial asking price of  $390,000 and accept any offer above $360,000;
ii)	Should the home not be the subject of an exchanged and unconditional Contract for Sale within a period of 6 months from the date of Order herein then the Respondent to do all acts and things to cause the home to be listed for sale for public auction without reserve with such public auction to occur
iii)	within a period of 8 calendar months from the date of Order herein;
iv)	Upon the sale of the home whether by private treaty or public auction the Respondent cause the proceeds of sale to be distributed as follows:
1.	In the payment of the reasonable real estate agent's fees and disbursements in acting in the sale;
2.	In payment of the reasonable fees and disbursements of the auctioneer (if any) in acting in the sale;
3.	In payment of all monies due and payable pursuant to the mortgage registered against the title to the home;
4.	In the payment of any municipal rate adjustments;
5.	To the Respondent the amount of $60,000 together with interest such interest to accrue as and from 42 days from the date of Order herein.
c)	That pending the sale of the home the Respondent to maintain the home including the dwelling and the grounds of the home in a neat and tidy state.
d)	That pending the sale of the home the Respondent to do all acts and things to facilitate inspection by any potential purchaser and/or listed agent or agents or auctioneer or auctioneers at all reasonable times.
e)	That the Respondent do all acts and things to ensure the home is insured at full replacement value.
f)	Subject to the above each party shall be solely entitled to the exclusion of the other to all property and chattels of whatsoever nature and kind in the possession of such party as at the date of these Orders and that for such purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank's records thereof, insurance policies are deemed to be in the possession of the beneficiary thereof and superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for  payment out of such entitlements.
g)	 Subject to the above each party shall indemnify the other for any liability attaching to any property, whether that be realty or personalty to be retained by the party
h)	The Respondent and Applicant do all acts and things and give all consent and execute all documents and writings necessary to give effect to the Orders made herein.
i)	That in the event that either party refuses or neglects to execute any Deed or instrument necessary to give effect to all or any of the Orders made herein, the Registrar of the Court be appointed pursuant to Section 106A to execute such Deed or instrument in the name of said party and to do all acts and things necessary to give validity to the operation to the said Deed or instrument, and the Registrar is authorized to execute any such necessary instrument upon being satisfied by Affidavit that neglect or default, as the case may be has occurred.
3.	The court has read and considered the following documents filed and relied upon by the Applicant:
a)	Amended initiating application (family law) filed 4 July 2014.
b)	Financial Statement of the Applicant filed 4 July 2014.
c)	Affidavit of the Applicant filed 7 July 2014.
d)	Affidavit of Mr P (joint valuation) filed 28 July 2014.
e)	Further affidavit of the Applicant filed 29 July 2014.
f)	Submissions on behalf of the Applicant filed 28 August 2014.
g)	Reply by the Applicant to the submissions of the Respondent provided to the court on about 8 October 2014.
4.	At the hearing the Respondent sought the court make orders as set out in an Amended Response to Initiating Application filed 30 June 2014 that provided as follows:
a)	That each party shall be entitled to the exclusion of the other the sole legal and beneficial ownership of all property, both real and personal, which is registered in each of their names or is in the current possession or control, including the superannuation entitlements and they shall be sold alone liable for and indemnify the other against any personal liabilities.
b)	That I be compensated the damage caused and the boys (Double Garage) as is orders bedrooms-holes and marks on walls, ceilings and carpets, lounge/dining walls, entry door jam, damage to brickwork and tiles from skateboards, rollerblades and total neglect to my property.  I have had two quotes ranging from $2270.00 to $2500.00.
c)	That the Applicant have no claim on the $106,590 which was paid in 2010 on my house from superannuation and pain and suffering payouts, or any payments made since she left the residence in October 2012.
5.	Despite the orders sought by the Respondent in his Amended Response to Initiating Application the Respondent conceded during cross-examination that the court should make an adjustment in favour of the Applicant stating “I would like to see her get her $10,000.00 back”. (Transcript 7 August 2014 para.31, p.94).  At paragraph numbered 5 of the submissions filed on behalf of the Respondent, the Respondent sets out “I am prepared to make a cash payment to the Applicant of $15,000 plus that the Applicant retain the items in her possession including the motor vehicle and her shares the Applicant to retain half share of the (hobby omitted)  that I bought after her arrival ($1685.00). Which is $842.50. The Applicant might also retain her superannuation”.
6.	At paragraph numbered 14-27 of the submission filed on behalf of the Respondent the Respondent submits, “ I agree that it would be just and equitable for the court to make an order however any cash adjustment ought not to exceed $15,000. Any amount ordered beyond $15,000 would not be just and equitable”.    
7.	The court has read and considered the following documents filed and relied upon by the Respondent:
a)	Affidavit of the Respondent filed 2 July 2014.
b)	Financial statement of the Respondent filed 30 June 2014
c)	Amended Response to Initiating Application filed 30 June 2014.
d)	Respondent’s outline of case document filed August 2014.
e)	Balance sheet filed for August 2014.
f)	Written submissions on behalf the Respondent filed 26 September 2014.
The court has considered the documents tendered in to evidence in the proceedings that form exhibits A-J.
Jurisdiction
8.	The Court may only make an order under section 90 SM in relation to a de facto relationship where the threshold requirements found at sections 90SK and 90SB of the Family Law Act 1975 are met.  
9.	Section 90SK(1) provides:
A court may make a declaration under section 90SL, or an order under section 90SM, in relation to a de facto relationship only if the court is satisfied:
(a) 	that either or both of parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the application for the declaration or order was made (the application time ); and
(b) 	that either:
(i)  	both parties to the de facto relationship were ordinarily resident during at least a third of the de facto relationship; or
(ii)  	the Applicant for the declaration or order made substantial contributions in relation to the de facto relationship, of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); in one or more States or Territories that are participating jurisdictions at the application time; or that the alternative condition in subsection (1A) is met.
(1A)  	The alternative condition is that the parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the relationship broke down.
10.	Section 90SB provides:
A court may make an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL, in relation to a de facto relationship only if the court is satisfied:
(a)  	that the period, or the total of the periods, of the de facto relationship is at least 2 years; or
(b) 	 that there is a child of the de facto relationship; or
(c)  	that:
(i)  	the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); and
(ii)  	a failure to make the order or declaration would result in serious injustice to the Applicant; or
(d)	that the relationship is or was registered under a prescribed law of a State or Territory.
11.	The court finds that both of the parties to the relationship were ordinarily resident in a participating jurisdiction, being that of New South Wales when the Initiating Application was filed by the Applicant; that both parties to the relationship were ordinarily resident in New South Wales during at least a third of the relationship and that the parties were ordinarily resident in New South Wales at the time the relationship broke down. 
12.	The Applicant deposes at paragraph 5 of her affidavit filed 7 July 2014 that she “lived in a de facto relationship commencing on or about November 2007” with the Respondent. Similarly the Respondent deposes at paragraph 3 of his affidavit that he and the Applicant “commenced a de facto relationship in November 2007 when the Applicant moved into my residence at Property V”.  
13.	The Applicant deposes at paragraph 9 of her affidavit that she and the Respondent “separated on 28 September 2012”  while the Respondent deposes at paragraph 41 of his affidavit under the heading “Post Separation” that the Applicant moved out of the Property V property on 8 October 2012. 
14.	Based upon the parties evidence the court finds the parties had lived in New South Wales during their relationship and that the parties’ relationship was for at least two years.  The court finds that the relationship commenced in November 2007 and concluded in late September early October 2012. 
15.	While there was argument as to the actual contributions and any adjustments that ought to be made between the parties the court is easily able to, and does find, that the parties had both made contributions as contemplated by the provisions of section 90SM (4)(a), (b) or (c) of the Act (s.90SB) .
16.	The court finds that the threshold requirements found at sections 90SK and 90SB are satisfied and as such the court has the jurisdiction to make orders for a property settlement pursuant to section 90SM of the Family Law Act 1975.
Information provided to the Respondent
17.		The Respondent was self-represented in the proceedings.  For that reason the court explained to the Respondent, at the commencement of the hearing, the procedure the court would adopt when dealing with a self-represented party, such as the Respondent. The court read aloud to the Respondent an extract from the decision in Re F: Litigants in Person Guidelines (2001) 161 FLR 189 at 226 – 227 that is set out below:
•	A judge should ensure as far as is possible that procedural fairness is afforded to all parties whether represented or appearing in person in order to ensure a fair trial;
•		A judge should inform the litigant in person of the manner in which the trial is to proceed, the order of calling witnesses and the right which he or she has to cross examine the witnesses; 
•		A judge should explain to the litigant in person any procedures relevant to the litigation; 
•	A judge should generally assist the litigant in person by taking basic information from witnesses called, such as name, address and occupation;
•		If a change in the normal procedure is requested by the other parties such as the calling of witnesses out of turn the judge may, if he/she considers that there is any serious possibility of such a change causing any injustice to a litigant in person, explain to the unrepresented party the effect and perhaps the undesirability of the interposition of witnesses and his or her right to object to that course; 
•		A judge may provide general advice to a litigant in person that he or she has the right to object to inadmissible evidence, and to inquire whether he or she so objects.  A judge is not obliged to provide advice on each occasion that particular questions or documents arise; 
•	If a question is asked, or evidence is sought to be tendered in respect of which the litigant in person has a possible claim of privilege, to inform the litigant of his or her rights; 
•		A judge should attempt to clarify the substance of the submissions of the litigant in person, especially in cases where, because of garrulous or misconceived advocacy, the substantive issues are either ignored, given little attention or obfuscated.  (Neil v Nott (1994) 121 ALR 148 at 150); 
•		Where the interests of justice and the circumstances of the case require it, a judge may: 
o		Draw attention to the law applied by the Court in determining issues before it; 
o		Question witnesses; 
o		Identify applications or submissions which ought to be put to the Court; 
o	Suggest procedural steps that may be taken by a party; 
o	Clarify the particulars of the orders sought by a litigant in person or the bases for such orders. 
•	The above list is not intended to be exhaustive and there may well be other interventions that a judge may properly make without giving rise to an apprehension of bias.
Background and History
18.	The Respondent was born on (omitted) 1954 and the Applicant on (omitted) 1974.
19.	The Applicant has four children not of the relationship being W born in (omitted) 1993, X born (omitted) 1995, Y born (omitted) 1996 and Z born (omitted) 1998.
20.	At paragraph 12 of the Respondent’s affidavit he deposes that in 2001 he and his then wife Ms J purchased a block of land at Property V (hereinafter referred to as “Property V”) for the sum of $56,000.00 and thereafter borrowed approximately $130,000.00 with which to build a home on Property V.
21.	In on or about 2005 the Respondent and his then wife Ms J divorced and entered into a property settlement whereby the Respondent was required to pay to Ms J the sum of $72,500.00. In return for payment of the said sum the Respondent retained Property V.
22.	The parties met in 2007 and thereafter commenced a relationship ultimately residing with one another in November of the same year.
23.	The Applicant deposes at paragraph 16 of her affidavit that at the commencement of the relationship the Applicant had savings of approximately $18,000.00.00, furnishings, some superannuation and shares.
24.	At Paragraph 17 the Applicant’s affidavit she particularises the source of funds from which she was able to accumulate savings of $18,000.00 including monies from a tax refund, proceeds of the sale of a Toyota (omitted), proceeds of sale of items of furniture furnishings, a refund of a rental bond, some money held in what the Applicant deposes to as being monies from “children’s bank accounts” and otherwise general savings that she accrued over a period of three years in the form of cash from a (omitted) business that she operated.
25.	At paragraph 18 the Applicant deposes that she held some 851 (omitted) shares that were worth as at 8 October 2007 the sum of $5003.00.  The Applicant gave further evidence to the effect that the shares had increased in number through what the Applicant describes as reinvestment of dividends whereby the Applicant increased her shareholding and held at the time of the swearing her affidavit some 1047 shares worth $5.86 per share totalling $6,135.00.
26.	At paragraph 19 of the Applicant’s affidavit she deposes to bring into the relationship furniture including a nine piece dining table and chairs, buffet and hutch, 2 lounges, refrigerator, washing machine, dryer, 3 television receivers, 3 video/DVD recorders, a 4 draw metal filing cabinet, study desk and chair, computers desk, computer, modem and accessories, kitchenware and linen, children’s toys, games and electronics, tent and camping equipment, fishing equipment that the Applicant describes as “personal items” for herself and the children.
27.	At paragraph 7 of the Respondent’s affidavit he deposes that the Applicant had “to my knowledge” a “small amount of furniture including a clothes dryer, fridge/freezer, 2 x three seater divans, eight seater dining suite, toys and hobby items that belonged to the children”.  
28.	At paragraph 9 the Respondent deposes to having flown to Melbourne, having rented a (omitted) truck and with the assistance of the Applicant’s brother-in-law loaded what he describes as a “small amount” of the Applicant’s furniture into the truck.
29.	At paragraph 20 of the Applicant’s affidavit she deposes that the Respondent brought into the relationship the following:
a)	The home at Property V; 
b)	Kia (omitted) motor vehicle; 
c)	Furniture; 
d)	Collection of (hobby omitted) – (omitted);
e)	Superannuation in the sum of approximately $80,000.00
30.	At paragraph 24 and 25 of the Respondent’s affidavit the Respondent deposes that in March of 2012 the Kia was “burnt out” and that he received the sum of $9,200.00 as an insurance payout.  The Respondent deposes to utilising the said sum to install solar panels on Property V.  
31.	The Applicant sets out that at the time of the commencement of the relationship she was not working following having left her employment as a (omitted) in order to moving in with the Respondent, and that at that time the Respondent was working at the (employer omitted).
32.	At paragraph 6 of the Respondent’s affidavit he deposes that at the time the commencement of the parties cohabitation he owned the following property:
a)	The Property V property
b)	Kia (omitted) motor vehicle
c)	Furniture in the Property V property including three fully furnished bedrooms, desktop computer, three in one fax printer scanner, right-wing fridge and freezer, clothes dryer, 2×3 seater divans and eight seater dining suite.
d)	Collection of (hobby omitted). The Respondent deposes to annexing to his affidavit a list of (hobby omitted) “previously and currently owned by me”.  The court notes that there is no annexure to the Respondent’s affidavit setting out a list of (hobby omitted) or any annexure for that matter.
33.	At paragraph 14 of the Respondent’s affidavit under the heading titled “Financial Contributions during relationship” the Respondent deposes that at the time he met the Applicant in 2007 there was a loan secured by way of mortgage on the Property V property that stood at a debit balance of $309,000.00 and that the property was worth at that time $340,000.00.  In effect the equity in the home based on the said calculations was  $31,000.00.
34.	At paragraph 15 of the Respondent’s affidavit he deposes that during the course of the relationship he was primarily responsible for making the mortgage payments; that between 2007 and 2010 the Respondent paid interest only on the mortgage and in 2010 “recommenced paying of the principal and interest off the mortgage”.  The Respondent deposes that he paid monthly repayments of $1260 to (omitted) Bank.  It is not clear from the Respondent’s affidavit what component of the payment was for principal and what component was for interest.
35.	At paragraph 16 the Respondent deposes to contributing two lump-sums of $107,590 in reduction of the mortgage and $20,610 towards renovations of the Property V property.
36.	In support of the Respondent’s contention found at paragraph 16 of his affidavit the Respondent deposes at paragraphs 17 and 18 that he was able to access the sum of $82,843.92 from his superannuation fund, (omitted), and thereafter utilised the said funds to pay the sum of $76,590 to (omitted) Bank off the then owing mortgage balance and the balance towards what the Respondent describes as “improvements to the Property V property and other items for the house”.
37.	The Respondent deposes at paragraph 19 of his affidavit to receiving the sum of $20,610 paid to him as a total and permanent disability benefit from (omitted) in July 2010. The Respondent deposes to utilising those funds to undertake renovations to the Property V property that the Respondent describes in his affidavit as being converting “the double garage into a double bedroom for the Applicant’s children.  The money was paid largely insulated, carpeted air condition installed.”
38.	During the course of the Respondent’s cross-examination, the Respondent conceded that the conversion of the double garage took place in 2009, prior to the payment of monies by (omitted) and that his evidence at paragraph 19 was incorrect. (Transcript 7 August 2014 page 89, lines 1-15).
39.	During cross-examination the Respondent went on to give evidence to the effect that the Applicant and Respondent had both contributed towards the costs of the conversion of the garage. (Transcript 7 August 2014 page 89, lines 15-20).
40.	At paragraph 20 of the Respondent’s affidavit he deposes to receiving the sum of $30,000.00 as a workers compensation payment from (omitted) lawyers in on or about October 2010 and that such monies were “directly contributed to the mortgage”.
41.	The Respondent deposes at paragraph 20 of his affidavit that in on or about December 2011 the Applicant deposited sum of $9500.00 into his bank account with (omitted) Bank and that on 28 December 2011 he paid the sum of $10,000.00 “onto the mortgage”.
42.	At paragraphs 26 of the Respondent’s affidavit the Respondent deposes to largely being responsible for “maintaining the Property V Property”.
43.	The Respondent deposes at paragraphs 27 – 33 of his affidavit to having fractured L3 of his spine in February 2009 when he slipped over at work and in November 2012; was diagnosed by Dr M as suffering “chronic pain” and has a 5kg lifting limit as a result of the said injury.
44.	At paragraphs 45 of the Applicant’s affidavit she deposes that the Respondent “ceased his employment following a work accident wherein he sustained a back injury. He was unable to work”. The applicant went on to state that the Respondent was “on workers compensation and disability benefits from Centrelink for approximately 3 of the 5 years that we were together”.
45.	The Applicant deposes at paragraph 46 of her affidavit that she worked throughout what she describes as the “majority of the relationship”; that there was a period when she was in receipt of Centrelink benefits; details the various positions of employment that she held and states that the income earned by the Respondent and her during the periods that they employed was “similar in a total sense over the period of the relationship”. The Applicant states at paragraph 47 however that the monies she received “by way of family allowance supplement (being for the children) meant that overall the monies available to the household” through what she describes as her “work, Centrelink payments and the family allowance greatly exceeded the monies contributed” by the Respondent.
46.	Interestingly the Applicant attaches to her affidavit at annexure “L” a document referred to by the Applicant within her affidavit as a “table” detailing monies that were “available” to the parties during the relationship.  The Applicant declares that she prepared the table.  While the court notes that the Respondent failed to make objection to the reading of the table by the court, the court gives such table little weight as the Applicant failed to disclose the source of the information from which the table was produced. 
47.	The Applicant sets out a comprehensive list of monetary contributions made by her towards the relationship including providing a list of items purchased or expenses incurred by the Respondent from funds withdrawn by the Respondent from the Applicant’s bank account.
48.	At paragraph 75 the Applicant deposes that she and the Respondent “fostered a child, A”; that A lived with the parties from December 2011 until June 2012 and that during the period that A lived with the parties, the parties received payments from “the Department” in the sum of approximately $400.00 per fortnight. The court notes that the Respondent was silent in his evidence as to A living with the parties.  
49.	The Respondent deposes at paragraph 41 of his affidavit that the Applicant moved out of Property V on 8 October 2012 and that since that time he has continued to reside there. 
50.	The Respondent deposes that following separation he has been responsible for paying what he describes as “ongoing mortgage repayments, rates, water bill and utilities”, and further that he has been responsible for “maintaining the Property V property, with assistance from friends”. 
51.	The Respondent provides a list at paragraph 43 of his affidavit of numerous items of furniture and furnishings alleged by the Respondent to have been removed by the Applicant at the time she vacated Property V.    
The Law
52.	On 1 March 2009 the provisions of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 commenced.  Since 1 March 2009 de facto relationships are now within the jurisdiction of the Family Law Act 1975 except those in Western Australia.
53.	Where parties have lived in a de facto relationship, Part VIII(a)(b) of the Family Law Act 1975 provides for alteration of property interests between parties.  
54.	The legislative pathway and the manner in which the court considers adjusting property between de facto parties remains similar to that adopted by the court when determining an application for property settlement by parties to a marriage pursuant to Part VIII of the Family Law Act 1975.  
55.	Section 90SM of the Family Law Act 1975 defines the Court’s powers in determining applications for property settlement between de facto couples. Sub-section 90SM(3) of the Act provides that the court must not make an order under the section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
56.	Section 90SM(4) of the Act sets out the matters the Court must take into account when considering what orders should be made for the alteration of parties’ interest in property. Those matters are: 
(a) 	the financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship: 
(i) 	to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or 
(ii) 	otherwise in relation to any of that last-mentioned property; 
whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and 
(b) 	the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship: 
(i) 	to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or 
(ii) 	otherwise in relation to any of that last-mentioned property; 
whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and 
(c) 	the contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship and any children of the de facto relationship, including any contribution made in the capacity of homemaker or parent; and 
(d) 	the effect of any proposed order upon the earning capacity of either party to the de facto relationship; and 
(e) 	the matters referred to in subsection 90SF(3) so far as they are relevant; and 
(f) 	any other order made under this Act affecting a party to the de facto relationship or a child of the de facto relationship; and 
(g) 	any child support under the Child Support (Assessment) Act 1989 that a party to the de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the de facto relationship.
57.	Section 90SF(3) of the Act sets out the relevant further considerations which are as follows: 
(a) 	the age and state of health of each of the parties to the de facto relationship (the subject de facto relationship ); and 
(b) 	the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and 
(c) 	whether either party has the care or control of a child of the de facto relationship who has not attained the age of 18 years; and 
(d) 	commitments of each of the parties that are necessary to enable the party to support: 
(i) 	himself or herself; and 
(ii) 	a child or another person that the party has a duty to maintain; and 
(e) 	the responsibilities of either party to support any other person; and 
(f) 	subject to subsection (4), the eligibility of either party for a pension, allowance or benefit under: 
(i) 	any law of the Commonwealth, of a State or Territory or of another country; or 
(ii) 	any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia; 
and the rate of any such pension, allowance or benefit being paid to either party; and 
(g) 	a standard of living that in all the circumstances is reasonable; and 
(h) 	the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and 
(i) 	the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and 
(j) 	the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and 
(k) 	the duration of the de facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and 
(l) 	the need to protect a party who wishes to continue that party's role as a parent; and 
(m) 	if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and 
(n) 	the terms of any order made or proposed to be made under section 90SM in relation to: 
(i) 	the property of the parties; or 
(ii) 	vested bankruptcy property in relation to a bankrupt party; and 
(o) 	the terms of any order or declaration made, or proposed to be made, under this Part in relation to: 
(i) 	a party to the subject de facto relationship (in relation to another de facto relationship); or 
(ii) 	a person who is a party to another de facto relationship with a party to the subject de facto relationship; or 
(iii) 	the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or 
(iv) 	vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and 
(p) 	the terms of any order or declaration made, or proposed to be made, under Part VIII in relation to: 
(i) 	a party to the subject de facto relationship; or 
(ii) 	a person who is a party to a marriage with a party to the subject de facto relationship; or 
(iii) 	the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or 
(iv) 	vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and 
(q) 	any child support under the Child Support (Assessment) Act 1989 that a party to the subject de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the subject de facto relationship; and 
(r) 	any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and 
(s) 	the terms of any Part VIII(a)(b) financial agreement that is binding on either or both of the parties to the subject de facto relationship; and 
(t) 	the terms of any financial agreement that is binding on a party to the subject de facto relationship 
58.	In the case of Stanford v Stanford (2012) 293 ALR 70 the High Court (at 78-79) considered the manner in which the court should approach the determination of property proceedings and held that: 
“it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equity principles, the existing legal and equitable interests of the parties in the property”. 
59.	The court has historically determined property proceedings in accordance with the well-established principles set out in Hickey and Hickey (2003) FLC 93-143 embarking upon a four step process.  The first step requires the court to identify and value the assets, liabilities and financial resources of the parties at the time of the hearing.  The second step requires the court to consider the parties contributions and consider any adjust that should be made between the parties.  The third step requires the court to consider the actual circumstances of the parties and make adjust for those circumstances considering a variety of factors set out at section 90SF(3) of the Family Law Act 1975. Lastly step four requires the court to satisfy itself that the actual effects of the orders are just and equitable. 
60.	In the Full Court of the Family Court decision in Bevan & Bevan [2013] FamCAFC 116 the Full Court considered the decision in Stanford and the implication of that decision when looking at the four step approach taken by the courts.  Bryant CJ and Thackray J held at paragraph 59:
“Prior to Stanford, property applications were commonly dealt with by reference to what the trial Judge called “a four stage process”. 
This process was described at [31] and [32] of his Honour’s reasons. The jurisprudential basis for the process was well established – see the line of cases cited in Hickey & Hickey (2003) FLC 93-143 at [39].
The four stage (or step) process involves:
o	identification and valuation of the property of the parties;
o	identification and evaluation of contributions to the property (including property no longer owned by the parties);
o	identification and assessment of the various matters in s 79(4)(d) to (g) including, to the extent they are relevant, the matters in s 75(2);
o	consideration of matters of justice and equity.
61. Although the four step process has been regularly applied, the Full Court has stressed it is no more than a means to an end, since the statutory obligation is to alter existing interests only if it is just and equitable to do so. Thus, in Norman [2013] FamCAFC 116 Reasons Page 18 & Norman [2010] FamCAFC 66 at [60], the Full Court (Finn, May and Murphy JJ) said:
It is the mandatory legislative imperative (to reach a conclusion that is just and equitable) that drives the ultimate result. For all its usefulness and merit as a “disciplined approach” or a “structured process of reasoning” (per Fogarty, Lindenmayer, McCall JJ, N and N, unreported, 10 June 1992), the “three-step” or “four-step” approach merely illuminates the path to the ultimate result.
62. To like effect, in discussing the four step approach in our joint judgment in Martin & Newton (2011) FLC 93-490, we said (original emphasis): 
305. … that approach is not legislatively mandated, and as the Full Court [in Hickey] said, is simply the preferred approach. This is because it will be sufficient, in most cases, to have regard to the overall justice and equity of the orders after determination of the asset pool, consideration of contributions and assessment of the relevant s 75(2) matters.
306. But in our view, there is no requirement that the justice and equity of the order, as prescribed by s 79(2), must only be considered at the fourth (and last) stage. In our view, the requirement to make an order that is just and equitable permeates the entire decision making process, and it is not impermissible to consider it at an earlier point if the particular case requires it. We consider this is such a case.” 
61.	The four step approach while not legislatively mandated continues to be adopted by the courts when determining an application under section 90SM of the Family Law Act 1975 for adjustment of property interests as it is a means by which the court is able to illuminate a pathway towards a result that is just and equitable.  This approach is well established by authority (In the marriage of Lee Steere (1985) FLC 91-626, In the marriage of Ferraro (1993) FLC 92-335, In the marriage of Clauson (1995) FLC 92-595). 
62.	When determining property proceedings (utilising a four step approach) the court will utilise the evidence of experts such as valuers, agreements reached between the parties, or make findings based upon the evidence presented in order to identify and value the property, liabilities and financial resources of the parties.  The court then considers the contributions made by the parties as defined in section 90SM(4)(a) to (g). Thirdly the court must consider the future needs of the parties by having regard to the provisions of section 90SF(3) in so far as they are relevant. Finally in determining what order the court should make the court must be satisfied in all of the circumstances that it is just and equitable to make the order as required by section 90SM(3).  It is the justice and equity of the actual orders that the court must consider. See Russell and Russell [1999] FamCA 1875; (1999) FLC 92-877).
Should an Adjustment be made? 
63.	This is a case where the assets of the parties are not divided evenly between them.  Despite the orders sought by the Respondent at the commencement of the hearing, the Respondent having heard the Applicant’s evidence and having answered in cross examination a litany of questions put to him by the solicitor for the Applicant, conceded that an adjustment would need to be made between the Applicant and the Respondent stating to the court “I would like to see her get her $10,000.00 back”. (Transcript 7 August 2014 para.31, p.94)  
64.	The court takes the view that in this case the court ought to make an initial finding as to whether it is just and equitable to make an order. Accordingly when identifying, according to ordinary common law and principles of equity, the existing legal and equitable interests of the parties’ in the property, the court finds that the contributions the parties made over a long period of time are not reflected in the way in which the parties hold their assets.  In this case the Respondent holds assets of substantially greater value than those held in the name of the Applicant and it is therefore the view of the court that it is just and equitable to make a property settlement order adjusting the parties’ property interests in the proceedings.
Assets and Liabilities
65.	At the commencement of the hearing discussions took place between the parties and the court for the purposes of seeking to clarify whether agreement might be reached between the parties in respect of a joint balance sheet.
66.	Various concessions as to value were made with respect to all of the assets of the parties with two exceptions being the value of the Respondent's (hobby omitted) Collection and the value of Property V.
67.	By way of consent orders made on 21 June 2013 the parties were required to engage a person known as Mr R as a single expert to prepare a joint valuation of (hobby omitted) that were in the possession of the Respondent or that had been disposed of by the Respondent as set out in document annexed to the orders made 21 June 2013. Pursuant to further orders of the court may 21 June 2013 the parties were ordered to attend upon a conciliation conference before a registrar on 6 November 2013.
68.	A conciliation conference ultimately proceeded before Registrar Kearney on 11 November 2013 that was unsuccessful.  Registrar Kearney noted in orders made by her on 11 November 2013 that: “Mr A was appointed in lieu of Mr R (who decline such appointment) but the Applicant would only rely on his report for the purposes of the conciliation conference citing that the report did not address the contents of a joint letter of instruction in that Mr A is one and the same person referred to in paragraph 34 and 53 of the Respondent’s affidavit filed 9 April 2013”.
69.	Under the heading “Assets Available for Division” at paragraph 23 (g) of the Applicant’s affidavit, the Applicant  sets out the following:
“Mr Watts’ (omitted) collection. I do not say that the collection has been properly valued for these proceedings. A valuation obtained during the proceedings put the value of the (omitted) stock at $5655. A copy of the report is annexed hereto and marked with the letter “F”.”.  
70.	The court has read and considered the two-page document forming annexure “F” to the Applicant’s affidavit signed under the hand of Mr A.
71.	The court heard considerable argument at the commencement of the hearing and then substantial cross examination with respect to the value of (omitted) including the trading or selling of (omitted), the deriving of monies from the sale of (omitted), the manner in which the (omitted) were (omitted) and offered for sale and thereafter significant submissions on behalf of the Applicant with respect to what might be described as significant shortcomings of the valuation Mr A.
72.	It must be noted that the court holds no expertise in respect of valuing items of property be they real property, chattels or in this case (omitted). The court was not on the evidence able to ascribe a value to the (omitted) of $30,000.00 as suggested by the Applicant in her submissions.  The court noted that the Respondent was content to accept the value of $5,295.00 being the value ascribed to the (omitted) by Mr A in his valuation. Neither party sought to call Mr A for cross examination.  Had either party done the same and sought to have challenged the report of the Mr A, who was a single expert, the court may have been in a position to make a finding as to value of the (omitted) other than the opinion as to value provided by Mr A.  The best evidence available to the court as to valuation of the (omitted) is that of this the valuation of Mr A that is annexed to the Applicant’s affidavit.         
73.	Filed on behalf of the Applicant in the proceedings was an affidavit prepared by registered valuer Mr P sworn or affirmed 28 July 2014.  
74.	Mr P prepared a single expert valuation for Property V that is annexed to the Applicant’s affidavit and marked with the letter “A”.  The valuation dated 28 January 2014 provides that Property V has a “market vale” of $410,000.00.
75.	Mr P deposed in his affidavit that at the time he inspected Property V the Respondent met him on-site, but that he was “not able to gain access to the garage area of the property”. Mr P deposes that the lawyers for the Applicant led him “to believe the garage area had been done up as a 4th bedroom”, and that his valuation had allowed for the existence of a garage as opposed to a 4th bedroom.  
76.	Mr P went on to state in his affidavit that the “existence of a 4th bedroom (and in particular if it had an ensuite bathroom) would increase the overall value of the property by approximately $20,000.00”. However Mr P went on to state that he had made enquiries to (omitted) Council and ascertained that there had been no council approval for the conversion of the garage.
77.	At paragraph 12 of Mr P affidavit he deposes that “if the 4th bedroom was council approved (together with ensuite bathroom) I would increase the overall valuation to currently $440,000.00 (or $430,000.00 if there is no bathroom)”. The parties conceded during the hearing that the garage conversion at Property V did not include the provision of an ensuite. 
78.	Mr P further deposed at paragraph 13 of his affidavit that approval of the double garage as a 4th bedroom could in his respectful view “be obtained by application to council for and obtaining the requisite s.149D certificate and s.172 building certificate”.  Mr P expresses at the next sentence that he does “not have expertise as a builder” and further that he has not viewed the area within the double garage.  
79.	The court notes, having read Mr P’s affidavit and the annexure thereto, that in addition to having no expertise as a builder Mr P possess no expertise as a Town Planner. As such having regards to the New South Wales Court of Appeal decision in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 Mr P’s opinion as to whether the garage conversion at Property V might gain council approval falls well short of the following requirements for admissibility set out by Heydon J's at [85]:
 
	“a) the opinion has to be on an area that the Court accepts is an area of specialised knowledge;
	b) the witness must demonstrate that by reason of specified training, study or experience they are an expert in that area; 
	c) the opinion must be on matters within that area of expertise; 
	d) the expert must state, and the party calling the expert must prove, the facts on which the expert opinion is based; 
	e) if any facts relevant to the opinion are assumed they must be identified and proved in some other way; and 
	f) the expert must explain how the opinion expressed was reached.” 
80.	When applying the test as set out in Makita Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 the court does not accept the opinion of Mr P with respect to Property V having a Market value other than that of $410,000.00 as set out in Mr P valuation dated 28 January 2014.
81.	The court finds that the assets and liabilities of the parties as set out in the tables below.
Assets – Possession - Value
Asset	Possession	Value	
Property V	Respondent	$410,000.00	
Furniture & Furnishings, Bank Accounts 	Respondent	Negligible	
Furniture & Furnishings, Bank Accounts	Applicant	Negligible	
Mazda (omitted)	Applicant	$1,000.00	
Ford (omitted) 	Respondent	$1,000.00	
(omitted) Shares (1047)	Applicant	$6,345.00	
(omitted) Collection	Respondent	$5,295.00	
Jewellery	Applicant	$782.00	
Superannuation	Applicant	$12,000.00	
	Total Assets	$436,422.00	

Table: Liability – Security -  Value
Mortgage	Property V	$183,000.00	
	Total Liability	$183,000.00	

82.	Subtracting the total of liabilities from the total assets provides for a total net pool of assets in the sum of $253,422.00
Contributions
83.	The court has undertaken an assessment of the parties contributions in the following paragraphs. 
84.	The court has considered the financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship namely: 
i)	to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or 
ii)	otherwise in relation to any of that last-mentioned property; 
whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them.
85.	There is argument made by the Respondent that he should be afforded are greater adjustment in circumstances where the court is able to find he had greater assets at the commencement of the relationship.
86.	While the court ascribes some weight to the Respondent’s initial contribution particularly with respect to his ownership of Property V it is not determinative in a way that would lead to the result suggested by the Respondent.  When considering the issue of contributions, the Full Court of the Family Court in Pierce and Pierce (1999) FLC 92-844 at page 85,873 stated the following:
	“In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife.  In considering the weight to be attached to the initial contribution, regard must be had to the use made by the parties of that contribution.”
87.	It might be argued that having regard to the monies that flowed, in effect, through the hands of the parties during the course of their relationship that they find themselves in a inferior position than perhaps others might. The court notes the complaints of the Applicant with respect to the Respondent’s use of monies on gambling.  In the decision of Kowaliw (1981) FLC 91-092 the Full Court of the Family Court held that financial losses incurred by the parties or either of them in the course of their marriage should be shared by them (although not necessarily equally) unless one of the parties has embarked upon a course of conduct designed to reduce the value of the assets or where one of the parties has acted recklessly, negligently or wantonly with the assets causing a reduction or minimisation of their value.  This is often referred to as ‘waste’. The parties’ management of monies and the Respondent’s use of monies on gambling fall well short of any argument the court would be prepared to accept with respect to ‘waste’.
88.	The Applicant asks the court to accept that monies she received by way of what might be described as payments made by Centrelink towards the maintenance of the Applicant’s children ought to give weight to an argument that the Applicant’s direct financial contributions were equal to or greater than that of the Respondent. The court does not accept this argument and will later consider what adjustment ought to be made between the Applicant and Respondent when considering the issue of the maintenance of the Applicant’s children having regard to section 90SF(3)(r).
89.	The court finds the Respondent’s direct contribution by way of the  various lump sums of monies received by the Respondent, that were applied towards the reduction of the mortgage over Property V outweigh the direct financial contributions of the Applicant. 
90.	Much argument was made and a considerable amount of time taken during the course of cross examination that went towards the issue of what physical work was done improving Property V and who did such work.  Having considered the issue and the evidence of the parties the court finds that the parties largely worked together in a joint endeavour or what might be best termed a ‘joint enterprise’ improving Property V.  The court therefore finds that neither party’s contributions were greater than the other when considering the indirect financial contributions.
91.	The court has considered the contributions made by the parties to the to the welfare of the family constituted by the parties to the de facto relationship and any children of the de facto relationship (of which the court notes there are none), including any contribution made in the capacity of homemaker or parent.  The evidence of the parties is such that the court finds that Applicant has acted in a way during the course of the relationship particularly having regard to paragraph 53 of the Applicant’s affidavit that would constitute the court giving weight to the Applicant’s contribution over and above the Respondent when considering contributions to welfare and or contributions as a homemaker.
92.	Weighing up the various contributions of the parties the court finds contributions as to 30% to the Applicant and 70% to the Respondent.
93.	The court has considered the effect of any proposed order upon the earning capacity of either party to the de facto relationship.  The orders as proposed by either the Applicant or the Respondent will in the view of the court have no effect on their respective earning capacities.  
94.	The court having considered the evidence of the parties is not aware that there is any other order made under the Family Law act affecting the Applicant or the Respondent.
95.	The parties agree that there is no child of the relationship between the parties.  It therefore follows that that there is no order or assessment made pursuant to the provisions of the Child Support (Assessment) Act 1989 whereby either the Applicant or Respondent has provided child support, is to provide child support, or might be liable to provide in the future, for a child of their de facto relationship.
Future Needs
96.	The court turns to those considerations set out at section 90SF(3) of the Family Law Act 1975. 
97.	The Applicant is near as makes no difference 20 years younger than the Respondent.  While there is no evidence before the court as to the Applicant’s actual fitness it is apparent that her health is not compromised.  The same can not be said for the Respondent and the court accepts the evidence of the Respondent with respect to his poor heath related to what the court will describe as the Respondent’s workplace injury. 
98.	The Applicant discloses an income in her financial statement of $1072.00 gross per week as a result of her employment with (employer omitted) and some Government benefits.  In stark contrast the Respondent discloses income of $100.00 per week paid by a Boarder and a government benefit paid to him in the sum of $421.00 per week as a Disability Pension.
99.	The court has set out and considered the property owned by the parties.  The court finds that neither party has a financial resource available to them. The court finds that the Applicant possesses the physical and mental capacity for appropriate gainful employment.  Significant cross examination was undertaken of the Respondent with respect to whether his (hobby omitted) was that of a business or instead that of a hobby.  The weight of the evidence supports the Respondent’s contention that the (omitted) and sale of (omitted) was that of a hobby as opposed to a business. Whilst the court is unable to find unequivocally that the Respondent does not possess the physical or mental capacity for gainful employment it does find that such capacity is compromises and well less that the capacity possessed by the Applicant.
100.	As set out earlier there is no child of the parties relationship and consequently neither party has the care or control of a child of the de facto relationship who has not attained the age of 18 years. 
101.	The court has read and considered the parties Financial Statements.  The Applicant sets out at Part G and Part N her commitments that are necessary to enable her to support herself and her children.  The Respondent has completed part G but omitted to complete Part N. The court notes those commitments of the Respondent that enable him to support himself. The Respondent does not have a duty to maintain a child or another person. 
102.	The Applicant discloses that she is in receipt of two government benefits namely a FAS Allowance Supplement and Rent Assistance while the Respondent is in receipt of a Disability Support Pension. The court has considered the weekly benefits paid to the Applicant and the Respondent.
103.	Having regard to the evidence and the limited sum sought by the Applicant the court is of the view that whether orders were made in the terms sought by the Applicant or by the Respondent each party would thereafter enjoy a standard of living that in all the circumstances is reasonable.
104.	The court notes that neither party seeks a payment of maintenance.
105.	The court is of the view having regard to the evidence that the making of orders in the terms sought by either party will not affect the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant.  
106.	The court does not consider that the duration of the de facto relationship has affected the earning capacity of either party. 
107.	This is not a matter where the making of orders in the terms sought by either party will affect either parties wish to continue that party's role as a parent.
108.	There is no evidence before the court as to whether either party is cohabiting with another person. 
109.	The court has considered the terms of the order sought to be made under section 90SM in relation to the property of the parties
110.	The court notes that there is no evidence before the court that either party is bankrupt. 
111.	The court has regard to 90SF(3)(r) being any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account. Section 90SF(3)(r) mirrors the provisions of section 75(2)(o) of the Family Law Act 1975.  The court considers and gives weight to the support provided by the Respondent to the Applicant’s children who resided with the parties during the course of the parties’ relationship. 
112.	In The Marriage of: Gaye Robb and David John Robb Appeal [1994] FamCA 136; (1995) FLC 92-555, Lindenmayer, Finn and Jsoke JJ held at paragraphs 65 - 67: 
“In considering whether the justice of a case requires some act done by a party to be taken into account under s.75(2)(o) the Court should, we think, have regard primarily to the existence or otherwise of any legal obligations, as between the parties, in relation to the doing of that act, and also, perhaps, to ordinary notions of justice and equity between the parties.
66. In this case, the wife had a legal duty to maintain the children of her prior marriage, which duty had primacy over the duty of any other person, other than the children's father, to so maintain them: ss.66A and 66B of the Act. The husband, on the other hand, had no legal duty to maintain these children at any time during the marriage because, by s.66G, a step-parent has such a duty only if he or she is a guardian of the child, or has custody of the child by an order of a court, or a court having jurisdiction under Part VII of the Act by order determines that it is proper for the step-parent to have that duty. None of those pre-conditions existed in this case.
67. Accordingly, in contributing to the support of these children the wife was merely honouring a legal obligation which she owed to the children, whilst the husband, in making his contribution, was acting essentially as a volunteer assisting the wife in the discharge of her legal obligations. Upon that basis, whilst we consider the justice of the case clearly required the husband's contribution to be taken into account under s.75(2)(o), the same cannot be said of the wife's contribution. In making that contribution the wife was in no way discharging or assisting to discharge any legal obligation of the husband.
113.	There is no evidence before the court to the effect that the parties ever entered into a Part VIII(a)(b) financial agreement that is binding on either or both of the parties to the subject de facto relationship. 
114.	When weighing the factors found at section 90SF(3) the court finds 45% to the Applicant and 55% to the Respondent.
115.	90SM(3) of the Act provides that the court must not make an order under the section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order. When stepping back and considering the outcome to the parties having made finding as to what adjustments should be made between the parties having regard to sections 90SM(4) and 90SF(3) the court is of the view that there should be no readjustment between the parties as it is just and equitable to make the orders the court proposes.
116.	The court finds that it is just and equitable that there be a adjustment of the net pool of assets between the parties as to 25% to the Applicant and 75% to the Respondent.  Having regard to the property in the possession of each party this will represent as monetary adjustment to the Applicant by the Respondent in the sum of $43,228.50 that should be paid within 42 days of the making of the orders.
117.	For the above reasons the court makes the orders set out in the beginning of this judgment.
I certify that the preceding one hundred and seventeen (117) paragraphs are a true copy of the reasons for judgment of Judge Myers

Date: 4 February 2015