Anderson v Hill

Supreme Court of NSW|2004-08-19

CITATION : Anderson v Hill [2004] NSWSC 736 HEARING DATE(S) : 9th, 10th, 11th August 2004. JUDGMENT DATE : 19 August 2004 JURISDICTION: Equity Division JUDGMENT OF : Master Macready at 1 DECISION : Paragraph 75

CATCHWORDS : Family Law. Application under the Property (Relationships) Act 1984 for adjustment of the parties' property interests. Small adjustment in favour of the plaintiff. PARTIES : Julie Marie Anderson v Martin Gregory Hill FILE NUMBER(S) : SC 5669/2002 COUNSEL : Ms R. Druitt for plaintiff Mr M. Evans for defendant SOLICITORS : Murdock's Family Law for plaintiff Kalmath Lawyers for defendant

1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

5669/02 Julie Marie Anderson v Martin Gregory Hill JUDGMENT 1 Master: This is an application for the adjustment of the parties' property interests under s 20 of the Property (Relationships) Act 1984 (NSW) (the Act). The plaintiff alleges that the parties lived in a de facto relationship from 17 April 2000 until late January 2002. The parties have one child, Madison Olivia Louise Hill, who was born on 3 May 2001. The defendant denies the existence of a de facto relationship but accepts responsibility in respect of his child. History of the relationship 2 The defendant is 42 years of age having been born on 4 February 1962. The plaintiff is 33 years of age having been born on 6 May 1971. Between 1994 and 1996 they had a social and sexual relationship. The relationship ceased for a few months until February or March 1997 when the plaintiff was overseas but resumed in mid 1997. 3 In 1999, the defendant sold his unit at Lane Cove and on 1 April 1999 the Defendant purchased a property at 16 Edenholme Road, Russell Lea, for $340,000.00. This was funded by a mortgage to the Westpac Banking Corporation in the sum of $272,000.00. The defendant contributed the balance of the purchase price. 4 At this stage the plaintiff was living in a unit, which she rented and shared at Lane Cove. In April 2000 she received an eviction notice. She discussed this with the defendant and as a result of the discussion she moved in to the property at Russell Lea. Before the plaintiff's move there were extensive renovations made to the property. After the move, these continued on a lesser basis. 5 The plaintiff became pregnant in August 2000 and their child Madison was born on 3 May 2001. By the end of the year the parties were in counselling because of troubles in their relationship. By January 2002 the plaintiff says that the parties had separated but still continued to live under the same roof. On 13 February 2002 the plaintiff and her child left the property and began to reside at her mother's property. 6 There are orders of the Family Court that deal with the custody of the child Madison. The plaintiff has the care and control of Madison with access having been granted to the defendant. Both the plaintiff and the defendant have input into plans for the child's long-term care, welfare and development.

7 Under the amendments introduced by the Property (Relationships) Legislation Amendment Act 1999 (NSW) which took effect on 28 June 1999 there was an extension of the Act which applied to relationships which ceased after that date. Under the amended Act a de facto relationship is defined in s 4 as a relationship between two adult persons who live together as a couple and who are not married to one another or related by family.

8 The Act applies to domestic relationships which are defined in s 5 as follows: "5 Domestic relationships (1) For the purposes of this Act, a domestic relationship is: (a) a de facto relationship, or (b) a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care. (2) For the purposes of subsection (1) (b), a close personal relationship is taken not to exist between two persons where one of them provides the other with domestic support and personal care: (a) for fee or reward, or (b) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation). (3) A reference in this Act to a child of the parties to a domestic relationship is a reference to any of the following: (a) a child born as a result of sexual relations between the parties, (b) a child adopted by both parties, (c) where the domestic relationship is a de facto relationship between a man and a woman, a child of the woman: (i) of whom the man is the father, or (ii) of whom the man is presumed, by virtue of the Status of Children Act 1996 , to be the father, except where such a presumption is rebutted, (d) a child for whose long-term welfare both parties have parental responsibility (within the meaning of the Children and Young Persons (Care and Protection) Act 1998 ). (4) Except as provided by section 6, a reference in this Act to a party to a domestic relationship includes a reference to a person who, whether before or after the commencement of this subsection, was a party to such a relationship."

9 It can be seen from the terms of s 5 (1) that a domestic relationship can be either a de facto relationship or a close personal relationship. In this case the plaintiff, quite properly, does not put forward a claim of a close personal relationship in her pleadings or submissions and simply relies upon there being a de facto relationship.

10 The definition of de facto relationship itself appears in s 4 and is in the following terms: 4 De facto relationships (1) For the purposes of this Act, a de facto relationship is a relationship between two adult persons: (a) who live together as a couple, and (b) who are not married to one another or related by family. (2) In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as may be relevant in a particular case: (a) the duration of the relationship, (b) the nature and extent of common residence, (c) whether or not a sexual relationship exists, (d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties, (e) the ownership, use and acquisition of property, (f) the degree of mutual commitment to a shared life, (g) the care and support of children, (h) the performance of household duties, (i) the reputation and public aspects of the relationship. (3) No finding in respect of any of the matters mentioned in subsection (2 ) (a)-(i), or in respect of any combination of them, is to be regarded as necessary for the existence of a de facto relationship, and a court determining whether such a relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case. (4) Except as provided by section 6, a reference in this Act to a party to a de facto relationship includes a reference to a person who, whether before or after the commencement of this subsection, was a party to such a relationship."

11 This definition apart from the provisions of sub-clause (1) merely reflects the existing state of the law as it had been developed under the former De Facto Relationships Act. See Light v Anderson (1992) DFC 95-120 applying Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677.

12 It is plain that any relationship was less than 2 years duration and in this regard s 17 of the Act is relevant. It provides:- "17 Prerequisites for making of order - length of relationship etc (1) Except as provided by subsection (2), a court shall not make an order under this Part unless it is satisfied that the parties to the application have lived together in a domestic relationship for a period of not less than 2 years. (2) A court may make an order under this Part where it is satisfied: (a) that there is a child of the parties to the application, or (b) that the applicant: (i) has made substantial contributions of the kind referred to in section 20 (1) (a) or (b) for which the applicant would otherwise not be adequately compensated if the order were not made, or (ii) has the care and control of a child of the respondent, and that the failure to make the order would result in serious injustice to the applicant." 13 It will be noticed that the first condition which is fulfilled in this case, does not require the applicant to demonstrate that the failure to make an order would result in serious injustice. I now turn to consider the various elements referred to in the s 4 definition of a de facto relationship. The duration of the relationship 14 The period of the relationship between the plaintiff and the defendant is from April 2000 until February 2002, a period of some 22 months. The relevant period would be that in respect of which there is a de facto relationship between the parties. This will depend upon the conclusions, which I will come to later as to the actual existence of such a relationship. In any event, the period is relatively short. The nature and extent of the common residence 15 There is no dispute as to the fact that the plaintiff moved in to the Russell Lea property on 17 April 2000. At that time there were two tenants residing in the main house, namely, Natalie Harris and Richard Morgan. The plaintiff moved most of her personal items and possessions, including her bed, into the main bedroom and the defendant continued living where he had been living, namely, in the granny flat at the back of the property. He continued to have his bed and some possessions in that granny flat and he agrees that in November 2000 he ceased to reside in the granny flat. In due course it was rented to someone else. He then moved into the main bedroom with the plaintiff. It is not really disputed that in this period before November there was a sexual relationship between the plaintiff and the defendant who at times may have slept in the bedroom in which the plaintiff may have placed her possessions or in the granny flat. 16 Once the plaintiff's pregnancy was confirmed the parties obviously gave consideration to their living arrangements. As a result, the other room in the house was converted into a room for the baby. An attic was built in order to store other possessions. As I have indicated, the plaintiff remained in the property until she left in February 2002 although she agrees that her relationship with the defendant was effectively over in January 2002. Whether or not a sexual relationship existed 17 This is not an issue but the parties are at issue as to when it ceased. The defendant suggests that it ceased well before separation, but it is clear that it would have continued during the year 2000 and most likely into 2001. The plaintiff was not cross-examined on her evidence that it continued until separation and I accept that it continued well into 2001. The degree of financial interdependence and any arrangements for support 18 The plaintiff and the defendant were both employed during their relationship but the plaintiff took maternity and other leave from three weeks before the birth of Madison and she did not work during the remainder of the relationship. She was paid for three months' leave, which gave her an income up until the middle of August 2001. 19 The respective net incomes of the parties during the relevant years after allowing for refunds of tax were as follows:

Tax year Plaintiff Defendant Y/E 30 June 2000 $53,214 $58,831 Y/E 30 June 2001 $53,468 $69,548 Y/E 30 June 2002 $22,513 $68,508 20 The parties did not share bank accounts and maintained their own credit cards. However it is apparent that the defendant did not operate a cheque account and from time to time the plaintiff would draw cheques to pay for renovation items. 21 Although on the defendant's evidence there were some discussions about payment of rent by the plaintiff before she moved into the property it is plain that she did not pay rent once she moved into the property. I accept her evidence that she purchased household goods and met household expenses. She produced receipts for payments of some $13,938.11 of particular expenses which are clearly household expenses including utilities, phone bills, shopping and restaurants. She also identified particular cheques that she had drawn on her bank account to pay for renovations, which totalled $18,480.41. This indicates fairly substantial interdependence in their financial and living arrangements and also of course relevant contributions that I will deal with later. The ownership use and acquisition of the property of the parties 22 The relevant property is that of the defendant. The degree of mutual commitment to a shared life 23 It is this matter which engaged the substantial dispute between the parties. The defendant's case was that he had a casual, sexual relationship with the plaintiff and that they were nothing more than boyfriend and girlfriend with no mutual commitment to having children or a future life together. On the other hand the plaintiff's case is that the pregnancy was planned and that there existed an appropriate commitment to the future. 24 It is plain on the evidence that the plaintiff did not see the defendant's property before he agreed to purchase it and she only saw it at some point in time prior to settlement. There is no evidence that the plaintiff took any role in the planning of the renovations, which were aimed at them spending their future together. Indeed, the circumstances in which the plaintiff came to move into the house indicate that this was the earliest time when the question of living together arose. According to the defendant he had dinner at the plaintiff's unit at Lane Cove in early April when he mentioned that a boarder was leaving his house. The defendant says that the plaintiff said that was good because she was looking for somewhere to live as she had received an eviction notice to leave her unit. Then to the defendant's surprise she asked if she could move into his house. The plaintiff put forward a slightly different version in that she told the defendant that she had received a notice to vacate and suggested she move in with him. She says that he said that was fine because she was the one he wanted to spend the rest of his life with. Whatever the accurate version of the conversation, it is plain that it was not until the plaintiff received an eviction notice that there was any suggestion that the two of them should live together. 25 The planning or otherwise of the pregnancy is also a matter to which there is a sharp division between the plaintiff and the defendant. The plaintiff's evidence is that in late March 2000 before she moved in with the defendant, they both attended the Sydney Children's Hospital at Randwick to discuss with several doctors in the Genetics Department a problem which the plaintiff had concerning Cystic Fibrosis. Her sister had suffered from it and she says that they both attended the hospital to discuss whether or not they should have children having regard to the likelihood of their children inheriting Cystic Fibrosis. The appointment took place on 20 March 2000. The plaintiff says that she discovered she was pregnant some time shortly before Fathers' Day in September 2000 because she purchased a Fathers' Day card to give the defendant to tell him of her pregnancy. Her account of his response is that he was delighted and wanted to tell his parents about the pregnancy but she was somewhat more cautious and wanted to wait. 26 The defendant's position however was that the first he became aware of the pregnancy was when he received the Fathers' Day card in late August or early September 2000. He says he was shocked to learn of the plaintiff's pregnancy, which according to him was totally unplanned and unexpected. In his cross-examination he consistently indicated that he could not recall having attended the counselling session in March 2000. 27 The defendant's version has to be seen and considered in the light of an affidavit which he swore in proceedings for custody of his child, Madison. In an affidavit in which he was seeking custody and access he swore to the fact that he was the father of Madison and that he had lived in a de facto relationship with the plaintiff from 17 April 2000 until mid January 2002. This is a clear admission on his part and no doubt suited his purposes when making that application. He was represented by appropriate legal practitioners in the proceedings. Although it is an admission it is only one aspect to be considered in the whole of the circumstances presented by the evidence which is before me on the issue. 28 A critical letter on this aspect of the evidence is a letter from the Sydney Children's Hospital which is signed by Tony Roscioli, Fellow in Clinical Genetics and Anne Turner, Head, Department of Medical Genetics. The letter is addressed to Julie Anderson and Martin Hill, care of the plaintiff's unit address at Lane Cove. The letter opens in these terms: "Dear Julie and Martin, It was a pleasure to meet you at the Genetics Clinic at the Sydney Children's Hospital on 20 March 2000. You had been referred with concerns regarding the likelihood of having a child with cystic fibrosis (CF). ….." 29 The letter then goes on to deal with the problems the various risks and what tests might be undertaken to see whether there was a possibility of a child having cystic fibrosis. In order for progress to be made, it was necessary for the plaintiff's sister to have further tests and for the defendant to be tested. The letter is clearly a business record written long before any breakdown between the parties and their relationship. In my view it is inconceivable that the doctors would have written the letter to both the plaintiff and the defendant if they had not both attended the hospital interview on 20 March 2000. The plaintiff swore to the fact that they both attended the interview and as I have said the defendant merely said he could not recall the interview having taken place. 30 The defendant underwent some diagnostic testing for any genetic testing in regard to the problem. He signed his consent to that procedure on or shortly after 28 August 2000. On 29 September 2000 he received the results which showed he was not a cystic fibrosis carrier which was good news in that it put the chances of the parties having a child with cystic fibrosis around one in four hundred. 31 As I have said, it seems to be clear that the defendant did attend the interview on 20 March 2000 with the plaintiff when the prospect of them having a child was at least in mind. Other evidence was given which has to be considered. 32 After April 2000, Mrs Brenda Anderson visited her daughter, the plaintiff, at the Russell Lea home about every two months. She gave evidence of affection between the plaintiff and the defendant and heard words to the effect from the defendant on no less than six occasions, "When we are married…". She also recalled the defendant telling the plaintiff, "This is your home too. You pick a kitchen that suits you as you do most of the cooking." There was other evidence that goes to the preparation of meals and housework. I found Mrs Anderson to be quite straightforward if understated and I am prepared to accept her evidence concerning the affection she witnessed between the plaintiff and the defendant after the plaintiff moved into the house in April 2000. 33 There was evidence given by a number of the defendant's flatmates and friends of the relationship between the plaintiff and the defendant. Richard Morgan lived in the defendant's house and he confirmed the living arrangements, which I have referred to above, and the fact that it was in November 2000 that the defendant moved from the granny flat into the front room with the plaintiff. Mr Morgan accepted that they shared the front room but he made the general comment that they did not seem to act as a couple and he did not recall them socialising together or leaving together for social functions. Given the fact that he was rarely home in the evening and his limited opportunity for observation I do not place great weight on this comment. His socialising was with the defendant and no doubt that fitted in with the defendant's habit of going out by himself with his friends on Friday night each week. Mr Morgan also gave evidence that the defendant did most of the household cooking, his own ironing and took his washing to the Laundromat during the week. He recalls the plaintiff doing the washing and ironing for herself and her baby. The plaintiff agrees that the defendant did start taking clothes to the Laundromat when she was pregnant and became very tired. She says she would sometimes drop the washing off and collect them from the Laundromat herself. Once the child was born, according to the plaintiff, she began ironing and washing the defendant's clothes. 34 Ricardo Larche who was also a person who lived in the house at the time gave evidence. He commented that he thought the parties were not a couple due to the fact that they carried out their activities separately. He referred to the fact that on a few occasions when he went out with the defendant, the defendant appeared to be seeing other women. It seems from the evidence that Mr Larche was an infrequent resident of the house although he was paying his rent. He would often be away for weeks at a time after which he would return for a few days. In these circumstances, his views have to be regarded as being based upon the limited opportunity he had to observe what was happening between the plaintiff and the defendant. Mr Larche also refers to the defendant doing most of the household cooking as well as doing his own ironing and taking his washing to the Laundromat. He refers to the plaintiff cooking her own meals and doing the washing and ironing. It is useful to note that the defendant suggested that what he did was an occasional barbecue for people in the house and this is in part consistent with the plaintiff's evidence on this aspect. 35 Mr Perkins, a friend of the defendant, gave evidence. He was a close friend and would catch up with the defendant to go out on a Friday night, which was the defendant's 'boys' night out'. He gave evidence of the plaintiff and the defendant having dinner with him and his girlfriend on some three occasions and also joining him and his girlfriend for a ten-day sailing trip to the Whitsunday Islands. He commented that his understanding was that the defendant had a casual involvement with the plaintiff. The basis for this view was not expanded upon and I give it little weight. He gave evidence of being told by the defendant that the plaintiff had told him that she was pregnant and that it was a bit of a shock, which was consistent with the views earlier expressed by the defendant to Mr Perkins that he did not want to have children. He also recalled the defendant saying some time after the birth that he did not plan or expect to be a father but now that he was his daughter was the most important thing in his life. 36 Kathleen Hill, the stepmother of the defendant, gave evidence. In her affidavit she commented that the defendant was never in a serious relationship with the plaintiff and that the plaintiff had never attended family functions. The cross-examination of this witness demonstrated that apart from one occasion, she was not present in Sydney in order to observe the parties at the relevant time. It also demonstrated that the plaintiff attended a family function, but not on her side of the family when the plaintiff and the defendant were present. Little weight can be placed upon this evidence. The care and support of children. 37 It is clear that the plaintiff was primarily responsible for the day-to-day care of the child, Madison, as she was not working in the period up until separation. There is also no doubt that she was assisted by the defendant although the extent to which he could assist was somewhat restricted by his irregular work hours. The performance of household duties 38 The plaintiff gave evidence of particular matters she attended to and it is clear from receipts that she paid some household utilities and expenses. It seems that the parties engaged, Jenny Boyd, a cleaner to clean the property on a weekly or fortnightly basis. She was paid $50.00 a week. Each party claimed they paid the cleaner. The only other evidence is from one of the flatmates who said that he saw the defendant leaving money for the cleaner. In these circumstances, I would accept the defendant made these payments. The parties are also at issue about who did the washing to which I have earlier referred. It is clear that at times the defendant took his washing to the Laundromat. In general the witnesses tend to support the parties doing their washing separately. The reputation and public aspects of the relationship 39 The plaintiff gave evidence of a number of occasions when she and the defendant socialised together. It is plain from the evidence that the defendant had his boys' night out on a Friday and sometimes the plaintiff would drive him to these outings. The plaintiff referred to the following examples.

There were some six to eight occasions when she and the defendant visited the defendant's mother and stepfather. On these occasions they would sleep together at their home. 2. In September, the plaintiff and the defendant attended the christening of the defendant's cousin's son. 3. There was the occasion of the two week sailing trip to the Whitsunday Islands to which I have earlier referred and other meetings with those friends. 4. The defendant attended the christening of the plaintiff's cousin's two children in December 2000 and the family gathering afterwards. 5. There was evidence of visits from the defendant's father and on ten occasions when they had both had dinner with the defendant's father. 6. On one occasion the defendant came to the plaintiff's Christmas party at her work. 7. On two occasions the plaintiff and the defendant went away on weekends to the Hunter Valley. 8. There was reference to going out to dinner twice a month. 40 These events were not in serious issue and in cross-examination it became apparent that the defendant told a number of family and friends about the pregnancy. This resulted in cards and greetings being sent to the parties from these people. Considering the short time involved, there seems to have been a number of occasions when the parties were obviously seen in public or at family gatherings as a couple. 41 When considering a matter such as the present, one has to bear in mind that each party might have a different perspective on the relationship. This is often likely to happen at the commencement of a relationship. It is plain that the plaintiff recalls expressions by the defendant of affection and hopes for the future before they started living together at Russell Lea. It is also plain that the defendant in a sense had his own life with his boys' nights out on a Friday. Although the parties, having regard to the evidence of the visit to the Children's Hospital on 20 March 2000, had talked about the possibility of having children at some time in the future, there does not seem to have been any commitment by the defendant to a relationship at that stage. Indeed, having regard to the parties' different accounts of the discussion which led to the plaintiff moving into the defendant's property it is probably clear that they each had a different expectation for the future of the relationship. It is notable that the plaintiff did not give any evidence of a discussion in which the parties decided to try and have a child at that particular time. This is no doubt because there was no mutual decision to have a child at that stage. The defendant may well have been surprised when told he would be a father and I accept his evidence in this regard. Once he was faced with the reality of the situation it seems to me that he accepted his responsibilities in that the parties worked together and looked forward to the arrival of the child. In November 2000, perhaps for other reasons, the defendant moved into the room occupied by the plaintiff and they stayed there together until the relationship ended in January 2002. It seems to me that it was the knowledge of the impending birth of the child that probably tipped the parties' relationship into one where they were in fact living together as man and wife. The defendant did not reject the plaintiff and their child but took them into his life as the parties had a substantial commitment which each of them accepted. 42 In these circumstances, I am satisfied that from the beginning of September 2000 until their separation in January 2002, the parties were living together in a de facto relationship. The property of the parties at the commencement and the conclusion of the relationship 43 The plaintiff's assets in April 2000, and presumably close to this at the commencement of the relationship were as follows:

(a) A Mazda Astina motor vehicle. There is no evidence of its value but it was sold for $11,000.00 in May 2001. (b) Savings at the St George Bank of $4,500.00. (c) Savings with the Fire Brigade Credit Union of $5,500.00. (d) Furniture and household goods. (e) Superannuation with AMP valued at $26,691.78 44 The defendant's assets in April 2000, and presumably close to this at the commencement of the relationship, were as follows:-

(a) A Subaru motor vehicle. (b) Property at 16 Edenholme Road, Russell Lea that had been purchased in April 1999 for $340,000.00. (c) Furniture. (d) Superannuation entitlements of $43,000.00. 45 The defendant had a mortgage of $272,000.00 to Westpac secured on the property at the time of purchase on 1 April 1999. This was increased to $295,000.00 on 30 April 1999 so that he would have funds for renovations. 46 At the conclusion of the relationship the plaintiff had the following assets:

(a) A Holden Commodore Station wagon purchased in March 2001 for $15,000.00 (b) Savings with St George Bank of $500.00 (c) Superannuation of $ 36,686.21. 47 The plaintiff had a credit card liability of $1,000.00 and a loan from her sister of $4,000.00. 48 The defendant's assets at the conclusion of the relationship were as follows:-

(a) The property at 16 Edenholme Road, Russell Lea then worth $650,000.00. (b) A Commodore Station Wagon motor vehicle. (c) Superannuation entitlements. 49 At that time the defendant's liabilities were $272,000.00. 50 In March 2000 the defendant met his current partner Theresa Lamp. She moved into the property in July 2003 and has continued to live there with the defendant. They decided in July 2003 to undertake extensive renovations to the property. His partner who has advanced substantial sums totalling in all about $410,000.00 has financed these renovations and some other expenses of the defendant. In return the defendant has agreed to transfer one half of the property to her in recognition of her contribution. As a result of these extensive renovations the value of the property at the present time is not relevant and the matter will have to be dealt with having regard to the value of the property at the time of the conclusion of the relationship with perhaps some escalating factor for the period of time since the conclusion of the relationship. 51 The property is now subject to a mortgage amounting to $85,000.00. Financial contributions 52 As is probably apparent, the financial contributions centre around the defendant's property which he owned at the commencement of the relationship. Each party retained their car and personal possessions after the conclusion of the relationship so these do not have to be taken into account. After the completion of the purchase on April 1999 the defendant moved into the house and commenced renovations. The renovations were fairly substantial and the identified expenses amount to $80,285.00. He also had a number of friends help him with the work. For example, one friend stayed for nine days and with the assistance of the defendant he removed the ceilings and attended to replastering the inside of the house. 53 The defendant identified monies that were provided by the plaintiff, which we used for number of items in the renovation process. The total of the amount he identified is $27,300.00. He claims that he substantially repaid this amount to the plaintiff by a number of payments totalling some $24,050.00. It is apparent on the face of the defendant's evidence that some of these repayments had nothing to do with repayment of contributions. For example there was $1,000.00 paid for the plaintiff's motor vehicle transfer fees and insurance. That was following his request that she have a better vehicle in which to drive Madison around. A sum of $600.00 was in respect of his decision to have her dog trained. In respect of one payment of $9,500.00 which came from the defendant's father via the defendant it appears to have been used by the plaintiff at least to the extent of $5,500.00 for the purchase of the kitchen from a kitchen shop which was closing. Although it has not been installed the defendant has this kitchen. The balance of the $9,500.00 the plaintiff applied to household expenses. The plaintiff admits she received back sums of $4,450.00 and $5,000.00 but otherwise denies the remaining repayments. Two of the payments, being $4,450.00 and $5,000.00 were made prior to April 2000 and no doubt covered either contributions or funds advanced prior to April 2000. 54 The plaintiff's case is that she effectively contributed the whole of her salary, which she received during the period of the relationship to either running the household or contributing to the cost of the renovations. During the period of the relationship, her income was in the order of $54,000.00. For the period from April 2000 it was in the order of $72,000.00. 55 There is a question as to whether one can take account of contributions made prior to the existence of a relationship such as occurred in this case. I dealt with this matter in Del Gallo v Fredericksen unreported 23 July 1999 at paragraphs 32 to 35 which I will not repeat. 56 There was an appeal in Del Gallo v Fredericksen [2000] NSWCA 293 to the Court of Appeal on 24 October 2000 the Court dismissed the appeal. Although there was substantial argument on the appeal as to whether or not the earlier views which I have followed of His Honour Mr Justice Powell in Roy v Sturgeon (1986) 11 NSWLR 454 should prevail, the Court ultimately did not decide that matter because it made no difference to the factual outcome of the appeal. 57 The matter was briefly touched upon again by the Court of Appeal in MacDonald v Stilsa [2000] NSWCA 302. This was an appeal from Bergin J and there was a suggestion that Her Honour had taken into account contributions made prior to the relationship. On a factual basis the court did not come to this conclusion. However, His Honour Mr Justice Priestley having had regard to what was said in Evans v Marmont (1997) 42 NSWLR 70 concluded that a trial judge was entitled to take into account circumstances of or related to the parties' relationship which occurred prior to the commencement of the relationship, provided such circumstances were closely connected in subject matter, time and relevance to the financial and non-financial contributions made during the period of the relationship. Such matters could be given some but not fundamental weight. 58 The matter has been dealt with by the Court of Appeal in Jones v Grech [2001] NSWCA 208 which was an appeal from a decision of Master McLaughlin. Powell JA at paragraph 10 found that there were two distinct relationships involved. One was from 1984 to 1991 and the second commenced in 1993 and ended in September 1995. Relying upon the reasons he had previously adumbrated His Honour only allowed the contributions made within the second period. Ipp AJA at paragraphs 70 to 74 referred to Fotheringham v Fotheringham, unreported, NSWSC, 19 November 1996, an earlier decision of mine, and came to a different conclusion to Powell JA. He held that a court must take into account the aggregate periods during which the de facto partners have lived in a relationship adopting my reasoning at first instance in Fotheringham v Fotheringham. Given the current state of appellate difference I could follow either Powell JA or Ipp AJA. In accordance with my previously expressed views I will follow Ipp AJA. 59 Ipp AJA also referred to McDonald v Stelzer (2000) 27 Fam LR 304; [2000] NSWCA 302 which he said was determinative of whether the court may have regard to contributions made before the de facto relationship commenced agreeing with the comments of Priestly JA. His Honour said that he found no difference in principle between contributions made before the de facto relationship started and those made thereafter. The court, he said, could have regard to both. Davies AJA agreed with Ipp AJA that it was necessary to have regard to events, which occurred prior to the last period of the de facto relationship. 60 Having regard to the circumstances of how the plaintiff came to move into the defendant's property I would not think it appropriate to take into account contributions made by the plaintiff prior to 17 April 2000. However, I do think that contributions made between 17 April 2000 and September 2000 are so closely connected in subject matter, time and relevance to the financial and non-financial contributions made during the period of the relationship that they should be taken into account. 61 The defendant identified items totalling $80,285.00 that he had spent on improvements to the Russell Lea property from the time he bought it in April 1999 until the end of the relationship. Of these, the evidence discloses that those in a sum of $45,535.00 were expended and carried out between April 2000 and the end of the relationship. The plaintiff has identified by way of receipt and payment a total amount she has spent on renovations in this period of $16,749.08. This makes the defendant's contributions $28,786.00 in the relevant period. 62 The purchase of the kitchen to which I have earlier referred, occurred in March 2001 and the amount spent by the plaintiff from the defendant's father's funds was $5,500.00 and is included in the total figure I have referred to above and is therefore taken into account. The remaining funds from the $9,500.00 deposited in the plaintiff's account by the defendant so that she could make this purchase were used for the parties' general expenses. 63 There was a claim by the defendant that he provided some $3,500.00 in cash from the sale of his Subaru wagon in March 2001 so that the plaintiff could purchase a new car which would be suitable for their daughter. The plaintiff's specific evidence was that she sold her vehicle for $11,000.00 and borrowed $4,000.00 from her sister in order to make that purchase. In the circumstances and absent any identification of the passing of the funds, I am not satisfied that this contribution of $3,500.00 was made to the plaintiff's car. However, the plaintiff admits that the defendant paid $1,100.00 towards the registration and insurance for the first year. 64 With regard to financial contributions to general household expenses and other matters, the plaintiff particularised items where she had receipts of payments to general household expenses that totalled some $9,573.04. She also identified $4,298.48 on expenses for Madison and $60.00 for clothing for the defendant. 65 Clearly these were not all the expenses on which she had spent her salary. It will be recalled that in the relevant period the plaintiff's total income was some $84,850.00. The defendant's total income for the same period was $119,314.00. In this period he also had contributions from his father of $10,000.00 and some other unspecified loans from other persons. It is apparent that from the funds they had available to them that the defendant spent some $28,786.00 on improvements with the plaintiff spending $16,749.00. In the case of the defendant, the balance of his funds, namely, $100,528.00 was mainly (except for the boys' night out expenditure) spent on the relationship. The plaintiff expended funds of $68,10 1.00. 66 During the relevant period from April 2000 to the end of the relationship the defendant made mortgage repayments of some $42,750.00 out of the funds available to him after payment for improvements of $100,528.00. 67 There is an enormous problem in trying to identify the worth of these financial contributions to the renovation of the property. This comes about because the plaintiff has placed no evidence before the Court as to the value of the property in April 2000. She did place evidence before the Court of the value of the property at the conclusion of the relationship of $650,000.00 but it is very difficult to extrapolate from the purchase price of $340,000.00 in April 1999 to a value in April 2000. Apart from natural inflation the amount of which is not particularly self-evident at any given period, the property may or may not have increased in value due to the partly completed renovation. 68 A straight line calculation of the increase in value from the purchase price to the conclusion of the relationship shows an annual increase of approximately $118,529.00, which is an increase over the period of the relationship of approximately $168,000.00. 69 Assuming for the moment that the cost of all the works reflected an increase in value, then adopting the cost of the actual money spent plus a similar amount for labour which was freely contributed, would in effect provide that increase during the period of the relationship in the order of $124,000.00. According to the plaintiff's submissions, one would then apply the proportion of the respective contributions to the improvements to this increase in value to give the plaintiff the benefit of the increase in value of, in case of the figure of $124,000.00 a sum of $45,610.00 or in the case of the sum of $168,000.00 a sum of $61,795.00. 70 The fallacy in this approach is that it tends to ascribe the whole of the increase in value to improvements and inflation rather than having regard to an underlying fact, namely, that in this case it is the defendant who owns the property, invested the original equity in the property and who has continued throughout the relationship to meet the funding costs and repayments on the mortgage for which he alone was responsible. One of the defendant's submissions would suggest there should be deducted from contributions the rental value of the property to the plaintiff over the relevant period but I think this an inappropriate approach. When parties commence a relationship they normally do not contemplate one party who is not the owner of the property paying the owner for the privilege of sharing their life. Therefore it is inappropriate on a reconstruction to adopt a different approach to that adopted by the parties. In any event the effect of the contributions towards the improvements in a case where one party owns the house depends upon the value those improvements add to the property. Absent any relevant evidence as in this case it is impossible to assess any such improvement in value. All I have is the fact of her spending the amount of $16,749.00 for the benefit of the defendant as he retains the house. 71 There were non-financial contributions in respect of the carrying out of the improvements to the property. The plaintiff gave evidence that by far the greater proportion of the work done during the renovation was that performed by the defendant and several of his friends who were, for instance, able to do plastering, tiling and carpentry. From time to time the plaintiff helped by cleaning up and getting lunch for the workers as well as visiting hardware stores and sourcing material and other similar matters. By comparison, her contributions appear to be somewhat less. There is also a difficulty as it is not possible to discern on the evidence what were her contributions in this regard to the period after April 2000. The substantial part of the work involving major matters such as replacing floors and replastering took place before the commencement of the relationship. Non-Financial Contributions 72 The non-financial contributions relate to homemaker contributions and parenting contributions. So far as homemaking is concerned I have earlier recounted some of the evidence given by the parties in respect of this matter. It seems that both parties were involved in cooking and preparing meals, doing the laundry and ironing and matters of this nature. Accordingly, I propose to treat as equal these contributions between the parties. So far as parenting contributions are concerned it is plain that the plaintiff had a greater proportion of these contributions. She was at home looking after the baby on a full time basis although the defendant assisted when he could in the evenings and at other times. It is clear, of course, that such contributions must be recognised in a real and substantial way, see Black v Black 15 Fam LR 109. While recognising this it should be borne in mind that one is only dealing with a period from May 2001 until January 2002 a period of some eight months. This is in marked contrast to the majority of cases that come before the Courts where these contributions have to be assessed. Conclusion 73 In these reasons I have referred earlier to s 17 of the Act and the relevant pre-conditions for the making of an order where the parties have not lived together for a period of two years. In the present case there is a child and that fact is sufficient to enliven the Court's power to make an order notwithstanding that the parties have not lived together for two years. There is no need for the plaintiff to establish that she has made substantial contributions in these circumstances. 74 I am dealing with a claim where the parties have each made contributions to the renovations of the property and the effect of the increase, if any, brought out by those contributions has not been quantified. The homemaking contributions are equal in my view. The overwhelming parenting contributions made by the plaintiff requires some recognition, bearing mind that these contributions were only for a period of some eight months. 75 In these circumstances, and having regard to the whole of the evidence, some of which I have referred to in this judgment, it would seem that an order for $30,000.00 would be appropriate. Under Part 50A Rule 34 of the Supreme Court Rules 1970 (NSW) the plaintiff is not entitled to costs unless the Court otherwise orders having regard to the fact that the amount that the plaintiff has recovered is an amount which is less than that prescribed for the commencement of proceedings under s 12 of the Local Courts (Civil Claims) Act 1970 (NSW). I will hear submissions on whether the Court should otherwise order and on the form of the orders. I direct the parties to bring in short minutes. **********

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Property (Relationships) Legislation Amendment Act 1999(NSW)

Local Courts (Civil Claims) Act 1970(NSW)

(2000) 27 Fam LR 304

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Judgment (17 paragraphs)

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Legislation Cited (4)

Cases Cited (7)