Bowling v Bowling

[2011] NSWSC 1168

Supreme Court of NSW|2011-12-07|Before: Macready J

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Court

Supreme Court of NSW

Decision date

2011-12-07

Before

Macready J

Source

Original judgment source is linked above.

Judgment (23 paragraphs)

[1]

Judgment 1This is an application under section 20 of the Property (Relationships) Act 1984 for an adjustment of the parties' property interests. The parties, Darryl Bowling and Judith Bowling lived in a de facto relationship which commenced in 1991 or 1992 and ended when they separated in May 2007. The parties had five children as a result of their relationship, one of whom died shortly after birth. Darryl had three children from previous relationships who did not live with the parties during the time of their relationship. Judith had a son, Damion Ward, from a previous relationship who was about 13 years of age at the commencement of the relationship. Damion lived with the parties until 1995.

[2]

Background history 2Darryl Bowling was born in May 1944 and Judith Bowling was born in November 1958. Judith's child Damion was born in April 1978. 3In 1988 Judith purchased vacant land at North Avoca using funds from her mother, Norma Odlum. She engaged a builder who commenced building a dwelling on the land. 4In October 1988 Darryl was declared bankrupt. In April 1990 the builder engaged by Judith died and construction of the dwelling ceased. Various claims were made on the Building Services Corporation. 5In early 1991 the parties met in Sydney. They lived together at Judith's mother's house for a short time in May 1991 and in the same month they leased premises at Seaview Street, Balgowlah. In early 1992 they leased a premises at Bilbette Place, Frenchs Forest. 6Jarrad Bowling, their son, was born in December 1992. 7In early 1993 the parties recommenced construction on the North Avoca property and in January 1994 Judith, Darryl and Jarrad moved to the live in the North Avoca property. 8In May 1994 their son Callum was born. 9On 12 October 1994 Darryl's bankruptcy was annulled. 10Between 1994 and 1996 with the benefit of payments from the Building Services Corporation, which amounted to $92,058, further work was done to the North Avoca property. 11In May 1996 their son Blake was born. He died shortly after the birth. 12In June 1996 Darryl purchased another property at Easter Parade, North Avoca for $135,000. This was funded by $108,000 from the National Australia Bank (NAB) and the parties provided the balance. The property was leased, with the rental income being deposited into the parties' joint NAB account from which mortgage repayments were met. 13In contrast to Judith who looked after the children, Darryl worked throughout the period of the relationship. In 1994 or 1995 Darryl changed employment and received a payout of some $38,000. This happened again in early 1997 when he received a payout of $18,000. 14In July 1997 Judith purchased a property at Gabbagong Road, Horsfield Bay for $119,000, largely financed by a loan of $60,000 from NAB and loan from Judith's mother. 15In October 1997 their child Arlen was born. 16In December 1999 Darryl purchased a Mitsubishi Pajero for approximately $55,000 to be used as the family's car. The purchase was financed by trading in the Subaru bought in 1993 and by drawing on the NAB loan secured over the Easter Parade property in Darryl's name. 17In December 2001 Darryl sold his property at Easter Parade for $290,000. The net proceeds of sale, after discharge of the mortgage, was approximately $38,000. It is not clear whether, out of this sum, $27,000 was repaid directly to Judith. In any case the balance of proceeds was deposited into the joint NAB account. 18In January 2002 Judith sold the land at Gabbagong Road, Horsfield Bay for $260,000. The net proceeds of sale were $252,470, most of which was deposited into Judith's St George account. 19In February 2002 Judith repaid her mother $55,000 from the net proceeds of the Horsfield Bay property. 20In April 2002 Judith and Darryl entered into a contract to purchase property at Damien Drive, McMaster's beach for the sum of $738,000. This was funded by a deposit of $36,900 paid from the parties' joint AMP account, $499,000 borrowed from RAMS Mortgage Corporation and the balance was funded from the proceeds of sale of Darryl's property at Easter Parade and Judith's property at Horsfield Bay. 21In April 2002 Judith, Darryl and a friend, Mr Glen McArthur, entered into a contract to purchase four apartments at Wells Street, East Gosford for $1,075,000. Judith and Darryl contributed $53,750 from their joint AMP account, $100,000 was paid by Mr McArthur and $920,000 was borrowed by Judith and Darryl from the ANZ bank. The apartments were leased until their sale in 2003 with the rental income being applied to meet mortgage repayments. 22After the sale of the apartments in 2003 there was a distribution and each party received approximately $39,000. 23In June 2003 Judith's house at Easter Parade, North Avoca was sold for $599,000. Some $499,000 was paid to reduce the RAMS home loan on the MacMasters Beach property. The parties offered to pay Judith's mother the $95,000 borrowed to purchase MacMasters Beach but she did not accept payment. 24In October 2003 Darryl purchased a Kobalco excavator for $35,227.50. 25In November 2004 the parties' child Julian was born. 26As I have mentioned the parties separated in May 2007 and they remained living separately and apart at the MacMasters Beach property until October 2010 when Darryl vacated the property. 27Judith filed her statement of claim on 11 August 2010 and accordingly the application is out of time.

[3]

Principles in de facto matters 28The factors which the Court must consider are set out in s 20 of the Property (Relationships) Act , as follows: "Application for adjustment (1) On an application by a party to a domestic relationship for an order under this Part to adjust interests with respect to the property of the parties to the relationship or either of them, a court may make such order adjusting the interests of the parties in the property as to it seems just and equitable having regard to: (a) the financial and non-financial contributions made directly or indirectly by or on behalf of the parties to the relationship to the acquisition, conservation or improvement of any of the property of the parties or either of them or to the financial resources of the parties or either of them, and (b) the contributions, including any contributions made in the capacity of homemaker or parent, made by either of the parties to the relationship to the welfare of the other party to the relationship or to the welfare of the family constituted by the parties and one or more of the following, namely: (i) a child of the parties, (ii) a child accepted by the parties or either of them into the household of the parties, whether or not the child is a child of either of the parties..." 29These factors are discussed by Basten JA in Baker v Towle [2008] NSWCA 73: "[43] It has been said in a number of cases that the application of s 20 involves three steps, which were identified in Howlett v Neilson [2005] NSWCA 149 (Hodgson JA, Ipp and McColl JJA agreeing) in the following terms at [25]: (1) identification and valuation of the property of the parties; (2) identification and valuation of the respective contributions of the parties, of the types referred to in s 20; (3) determination of what if any order is just and equitable having regard to these contributions. [44] What questions arise will, of course, depend to some extent on the circumstances of the individual case. For example, in some cases there will be an antecedent question as to whether the applicant is a party to a "domestic relationship" as defined in s 5 of the Act: see, eg, Delany v Burgess [2007] NSWCA 360. Otherwise, each of the three steps referred to above may require some further elucidation."

[4]

Commencement of the relationship 30Before dealing with the assets held at the commencement of the relationship, it is necessary to deal with the date of commencement of the relationship. It is also necessary to deal with the question of the credit of the parties as this was a real issue at the trial in respect of Judith's evidence and to a lesser degree Darryl's evidence. 31When dealing with Judith's credit there are a number of examples to which I should refer. 32The first matter is the swearing of inconsistent statements in her affidavits. In respect of the purchase of a Subaru motor vehicle for $22,000 in her affidavit sworn 11 August 2010 at paragraph 27 she said she had purchased a second hand Subaru for $22,000 from her own savings in her State Bank cheque account. This was in April 1993. In her affidavit of 7 March 2011 in paragraph 159 she said that Darryl borrowed $22,000 from her to purchase the Subaru. In paragraph 160 she recounted a conversation in which this was agreed. She was cross-examined (transcript pages 42 to 43) when she prevaricated on whose name the motor vehicle was registered. The cross-examination continued and referred to the fact that in her will she had left the Subaru to Darryl. 33Plainly in my view the cross-examination demonstrated that she prevaricated on whose name the motor vehicle was registered in, first giving evidence that it was in Darryl's name and then agreeing it was in her name. Her affidavit evidence was inconsistent and therefore unreliable. 34I turn to the caveat lodged by Judith's mother in respect of a loan she made in respect of the MacMasters Beach property. 35Judith was cross-examined about the caveat and when asked why the caveat was only over Darryl's 50 per cent share of the property she said she could not recall the caveat (T59). When she was asked about the caveat and whether she knew about it she said she thought there were a number of caveats and gave no clear answer. It was put to her that the money which was being protected was advanced to her and Darryl and that she knew that her mother had only lodged a caveat over Darryl's interest in the property. Her response was that she did not lodge the caveat and that her mother had lodged the caveat. When shown a copy of the caveat she acknowledged it had been completed by her in her own handwriting and arranged for it to be lodged. Plainly she avoided answering questions about the caveat. 36An example of inconsistencies between Judith's evidence and documentary evidence occurs at paragraphs 220 to 221 of Judith's affidavit of 7 March 2011. In these paragraphs she referred to a settlement statement relating to the sale of Darryl's property at Easter Parade which suggests that she was repaid $27,000 for her contribution to the purchase of that property. She then said, "Despite this I never received this sum separately". Plainly, on the face of it and relying on the settlement statement one would conclude that she was repaid the $27,000. 37Judith was cross-examined about the commencement of the de facto relationship. It was suggested to Judith that she had been representing to the world that she and Darryl were married. She said she did not believe that she had said they were married. She was then confronted with Centrelink documents in which she had stated they were married on 9 December 1992 which was the date of the birth of their first son, Jarrad. 38There was also a document which Judith signed at the bank in which she represented that she had married Darryl on 9 December 1992, to confirm that "Judith Ward" and "Judith Bowling" were one and the same person (Exhibit 5). After being warned she clearly conceded that she swore the statutory declarations knowing they were not true (T30). 39Generally I found Judith prevaricated when answering questions. She was not responsive and she was not prepared to make concessions on many matters. 40Darryl for his part seemed to me to answer questions in cross-examination directly and he was responsive to almost all questions he was asked. He acknowledged that in some areas he had made mistakes and he made appropriate concessions when necessary. He was also involved in completing the false Centrelink document. Notwithstanding this I found his evidence to be more reliable than that of Judith's. 41Judith was of the view that the relationship commenced when her son Jarrad was born on 9 December 1992 notwithstanding that the parties had lived together since May 1991. In early 1992 when the parties commenced living together at Bilbette Place, Frenchs Forest Judith was pregnant with Jarrad. 42Section 4 of the Property (Relationships) Act sets out relevant matters in assessing whether a de facto relationship exists: "(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." 43Plainly by early 1992 the parties were living together under the one roof and having a sexual relationship. By that stage it was an exclusive relationship and they were obviously performing domestic services for each other. In my view the domestic relationship commenced in early 1992. This is notwithstanding that they kept their finances separate at the time.

[6]

45In addition Judith claimed she was owed a debt by Darryl of $18,070 in respect of monies advanced to him prior to the commencement of the relationship. This is the subject of some dispute. Darryl acknowledged that around mid-1991 Judith paid a number of expenses on his behalf and in a couple of instances there were discussions about treating those monies as loans (T117). He identified in particular a legal fee paid by Judith on his behalf for a couple of thousand dollars. 46I accept that when the parties started living together in 1991 they intended to keep their finances separate. This was evidenced by documents such as a statutory declaration dated October 1991 and signed by Darryl and Judith which relevantly reads: "I, Judith Dianna Ward and Darryl Richard Bowling of XX Seaview Street Balgowlah in the State of New South Wales do solemnly and sincerely declare as follows: that the following Cohabitation Agreement exists: ...All financial help extended to either part has been and will be on a loan basis, invoiced and signed for, and repayment will be a priority over any other debts..." 47The existence of a de facto relationship does not preclude one party from lending a sum of money to the other party: see for example Zhong v Huang [2010] NSWSC 49 at [70]. Therefore, the fact that Judith and Darryl eventually entered into a de facto relationship would not automatically absolve him from repayment of a loan. However, given how the relationship between the parties progressed, I do not consider that the alleged loans remained payable by Darryl as at the date of separation. I note in particular the length of the de facto relationship, the intermingling of funds (joint bank accounts; the use of one party's asset to secure finance for the other party's asset) and the birth of five children for whom the two parties jointly provided. 48I am further persuaded that Darryl is not liable to repay the alleged $18,070 because the court cannot be satisfied, on the evidence, that these loans ever existed in the amounts alleged by the plaintiff. In particular, I do not regard the plaintiff's evidence that she discussed each loan, which could be as little as eight dollars, with the defendant before lending him money, as credible (T7). Furthermore, Darryl denied that Judith largely paid for his expenses (T119) and I accept this evidence. His taxable income of $43,308 for the year ending June 1991 supports this conclusion. 49Judith also claimed as an initial asset the value of her claim against the Building Services Corporation in respect of the incomplete building works in the sum of $92,058. That is not a correct valuation of her claim as at the time of the commencement of the relationship because the monies were not received in full until some three or four years later, in 1996. 50At the commencement of the relationship Darryl was bankrupt. He had various artworks, furniture, personal effects and savings and a superannuation interest with Westpac. Apart from valuing the artworks at $10,000 there does not appear to be any other quantification of his assets as at the commencement of the relationship.

[10]

57Two amounts were received by Darryl post separation which he has retained. These are $2,910, being a GST refund for the excavator, and the proceeds of the insurance claim of $17,000 for the Pajero motor vehicle. 58So far as liabilities are concerned at the hearing the remaining joint liability for the MacMasters Beach mortgage was $40. Darryl had incurred a liability of $91,478 post separation for litigation funding and for debt repayment which he used, inter alia, to fund this litigation. He also had a credit card debt of $15,318. Darryl suggested that his litigation liability should be taken into account given Judith's refusal to sell the MacMasters Beach property, but that is not appropriate. 59In due course I will need to consider the delay in selling the property. 60The other liability, which was said to be a joint liability, is the liability to repay loans by Judith's mother in the amount of $125,000. This sum is made up of a loan of $95,000 plus interest, some payments of credit cards of $5,981, and a loan for a boat $2,300. 61Given the signed documents by both parties acknowledging the initial advances and interest on the loan, it certainly exists. It was suggested that the loan was unlikely to be enforced by Judith's mother in relation to Judith's liability but that is a matter for Norma Odlum. She was not called to give evidence although she was present in court during the hearing. 62Having regard to the documentation I accept that this is a joint liability of the parties. 63I do not accept that there is a debt outstanding to Damion, Judith's son. It is implausible that this debt would have remained since 1994 when, as Judith herself acknowledged, this money could have been repaid to him on many occasions prior to these proceedings (T56). 64Therefore, the parties' net property, available for adjustment, as at the date of hearing can be valued as follows: Asset/liability Value Damien Drive, MacMasters Beach - agreed value 1,250,000 Art works (valued by Darryl) 5,000 Tools and equipment 3,000 4.5 tonne Kobalco excavator (only estimate is an auction estimate) 15,000 - 16,000 Furniture and contents MacMasters Beach 15,000 GST refund on excavator 2,910 Insurance payout for Pajero 17,000 Mortgage on MacMasters Beach property - $40 Liability to Judith's mother - $125,000 Net value of assets: $1,183,370

[11]

Judith ' s income 65To a large extent Judith did not work during the relationship. She conceded that during the last 20 years the total amount she would have received from paid employment was no more than $3,000 (T17). During much of that period Judith was at home looking after the children and she was in receipt of substantial payments from Centrelink in respect of the family. There were family payments, parenting payments, carer allowance and an occasional Newstart allowance. Judith's taxable income is not an appropriate guide to what she contributed because it includes capital gains which should otherwise be taken into account and some of the Centrelink payments are not taxable. 66Generally, Judith would have been repaid some of the tax withheld on these benefits due to her low income. Therefore the gross amount of Centrelink benefits is more telling of her contributions. That amount is approximately $221,312.72, although only net figures were provided in relation to family payments. The Centrelink records provided disclose approximately $2,190 withheld tax over the period of the relationship. 67There were criticisms levelled by Darryl at the inclusion by Judith in her claims of contributions for the whole of the Centrelink payments. Plainly these are made to cover the cost of bringing up a family and parenting and it was suggested that both parents participated in this activity. I will deal with non-financial contributions later but it is clear that the majority of the non-financial contributions were made by Judith. Therefore I consider it appropriate that a large proportion of parental benefits be notionally attributed to Judith. She was at home looking after the children. By the time the relationship was over in May 2007 the children still living at home were 13, 9 and 2. 68In 2000, Judith's mother contributed $23,000 to Callum's schooling. These funds contributed by her mother are a contribution by Judith: Powell v Supresencia [2003] NSWCA 195 at [56] - [57]. Section 20 specifically contemplates contributions made "on behalf" of a party. 69As discussed above, both parties recognise a loan of approximately $125,000 (including interest) which is repayable to Judith's mother. This loan was at a fixed interest of 4 percent per annum and repayable within three years. The favourable loan terms can also be considered a contribution by Judith: Manns v Kennedy [2007] NSWCA 217 (where favourable repayment terms to a party's parent was considered a contribution). However, since Darryl and Judith are both liable to repay the loan, the loaned funds are a contribution by both parties. 70In assessing the loans made by Judith's mother is it important not to count the same amount twice (as a loan and as an asset improved with the loaned money, such as Judith's Easter Parade property.) 71There has been a delay in selling the MacMasters breach property. Judith has resisted the sale, and indeed these proceedings commenced when Darryl attempted to sever their joint tenancy of the property. To the extent that Judith has delayed the sale of the property, and caused the parties to accrue interest on the loan, I consider that this is effectively a contribution by Darryl, since Judith's resistance has meant that their liability to her mother has increased.

[19]

Non-financial contributions 94It is common ground that Judith made a greater contribution as homemaker and parent and that she was primarily responsible for the care of the children. The defendant conceded at the hearing that her contributions in this regard were "far greater" (T93). Callum and Arlen both had serious health problems. Callum had Vater's syndrome and required extensive surgery as a child. Arlen suffered from pyloric stenosis at birth and also required surgery; he also suffers from asthma. Judith's contributions as primary carer of the children is greater given her children needed special care and required hospitalisation overnight. Because of Callum's disability, the plaintiff home schooled him for kindergarten. 95Darryl for his part puts forward a number of non-financial contributions. He made substantial renovations to the Macmasters Beach property, the details of the work are set out in paragraph 108 of his affidavit of 27 May 2011. The work he did was substantial. He conceded that he had assistance from Damion, Judith's son. Judith criticised some of Darryl's contributions and suggested that she had a part to play in the organisation of the renovations. This may well be so but, in my view, notwithstanding her criticism, Darryl's contributions were significant. As is usual in these cases there is no evidence to suggest that the value of the property has increased as a result of the improvements. Some of the improvements appear to have made the property more attractive and pleasant to live in. 96Judith conceded that at least the following was performed by Darryl (Judith's affidavit of 24 June 2011 at [29] and affidavit of 7 March 2011 at [141]-[143]): (i)he installed insulation batts; (ii)he installed some gyprock; (iii)he help to oil cedar planks; (iv)he built retaining walls with help; (v)he tiled the third en suite; (vi)he painted two rooms; (vii)he built concrete stairs; (viii)he repaired joists on the veranda; (ix)he built a storage room and sleep-out around the pole foundation. 97Judith appeared to concede at the hearing that her evidence as to Darryl's contributions was not conclusive (T63). These renovations contributed to the improvement of Judith's property and therefore are contributions to be taken into account pursuant to s 20. I accept that they occurred and that Darryl paid for some of the materials, such as wiring, doors and window frames, used in the renovations. 98In addition I accept that Darryl played a part in looking after the children and in domestic responsibilities, although to a much lesser extent that the Judith.

[20]

Extension of time 99The application is out of time by about a year. 100Section 18 of the Property (Relationships) Act is in the following terms: "Time limit for making applications (1) If a domestic relationship has ceased, an application to a Court for an order under this Part can only be made within the period of two years after the date on which the relationship ceased, except as otherwise provided by this section. (2) A Court may, at any time after the expiration of the period referred to in subsection (1), grant leave to a party to a domestic relationship to apply to the Court for an order under this Part (other than an order under section 27 (1) made where the Court is satisfied as to the matters specified in section 27 (1) (b)) where the Court is satisfied, having regard to such matters as it considers relevant, that greater hardship would be caused to the applicant if that leave were not granted than would be caused to the respondent if that leave were granted. (3) Where, under subsection (2), a Court grants a party to a domestic relationship leave to apply to the Court for an order under this Part, the party may apply accordingly." 101In Selmore v Bull [2005] NSWCA 365 the then President of the Court of Appeal, Mason P, had the following to say in respect of the section: "[12] The applicable principles were not in dispute. Section 18 does not lay down a general time-limit, giving a discretion to the Court to extend it. Rather, it makes two different provisions. That found in subsection (2) is expressed in terms of power to grant leave to apply, not as a power to extend the primary time limit. ... [13] It is not mandatory that there be an explanation for delay ( Carlon and Carlon (1982) FLC 91-272)." 102This section appears to treat an application for leave to apply as a normal event, calling for the Court to consider two stages, a finding relating to hardship and the exercise of discretion, without any special jealousy for the observance of the time limit or particular concern for it. In considering whether a Court should exercise of discretion conferred by statute to make an order in favour of some course, it is usual to consider whether there is a sound and positive ground or a good reason for making the order. Ultimately however it is not legally necessary to define exactly the ground on which a discretion is exercised favourably to an applicant. 103Later at paragraph 20 Mason P said: "The Master correctly recognised that section 18 (2) required him to consider the preponderance of hardship and also whether the residual discretion ought to be exercised in the applicant's favour. His reasons for a favourable exercise of discretion are found at pages 58 to 67 and 80." 104I also note that the question of delay is referred to by Bryson J in the case of Beavan v Fallshaw (1992) 15 Fam L R 686 at 687, referred to by the President in Selmore v Bull : "The section appears to me to treat an application for leave to apply as a normal event calling for the Court to consider two stages, a finding relating to hardship, and the exercise of discretion." 105At page 687 Bryson J in Beavan v Fallshaw said: "I regard it as relevant to the exercise of that discretion to consider what explanation for delay is offered, but my primary concern ought, in my opinion, to be whether the case put forward is an appropriate case for the plaintiff to apply for an order." 106Judith commenced the proceedings when Darryl sought to sever the joint tenancy of the MacMasters Beach property. Judith first attempted to obtain advice from a solicitor in April 2009. This was unsuccessful in that she was unable to obtain any advice. She also consulted a law firm in 2009 but apparently they did nothing to assist. It was only in May 2010 that she obtained advice from the Women's Legal Centre in Lidcombe and she was then referred, by another community legal centre, to her present solicitor who progressed the matter appropriately. Plainly Judith had problems caring for the children during this time prior to the time expiring. One child was overdosing with drugs and suffering mental health problems and another child had speech difficulties. In these circumstances I am satisfied with the explanation. I am also satisfied that greater hardship would be caused to Judith if leave were not granted than would be caused if leave were granted. This is based upon the need for Judith to receive an appropriate amount to recognise her contributions as well as giving credit to Darryl. I note also that there is a cross-claim by Darryl also seeking an adjustment on his terms. 107In the circumstances and, as there is no opposition to the extension of time, I am prepared to extend time.

[21]

Discussion 108In Norbis v Norbis (1985-1986) 161 CLR 513 at 523 the High Court said the following: "Although it is natural to assess financial contributions under s79 (4)(a) by reference to individual assets, it is also natural to assess the contribution of a spouse as homemaker and parent either by reference to the whole of the parties' property or to some part of that property. For ease of comparison and calculation it will be convenient in assessing the overall contributions of the parties at some stage to place the two types of contribution on the same basis, i.e. on a global or, alternatively, on an "asset-by-asset" basis. Which of the two approaches is the more convenient will depend on the circumstances of the particular case. However, there is much to be said for the view that in most cases the global approach is the more convenient. It follows that the Full Court is quite entitled to prescribe that approach as a guideline in order to promote uniformity of approach within the Court. In saying this we are not to be understood as denying the legitimacy of the trial judge's ascertainment in the first instance of the financial contributions of the parties by reference to particular assets. It is difficult to conceive how the trial judge in many cases could otherwise take account of such contributions as he is required to by s.79 (4)(a) of the Act . In this respect we agree with the comment of Nygh J. in G and G that, although mathematical precision is certainly not required, there is ordinarily a need to know the circumstances in which assets were acquired and the general extent of each party's contribution to them." 109The same considerations which apply to Family Law referred to by the High Court in Norbis v Norbis apply to decisions under the Property (relationships) Act . There are numerous cases dealing with this Act but it is useful to note the following two comments by the Court of Appeal. 110In Bilous v Mudaliar [2006] NSWCA 38 ; 65 NSWLR 615, Ipp JA outlined the general approach that should be taken in the evaluation of the parties' contributions in the following terms: [41] In Davey v Lee (1990) 13 Fam LR 668, McLelland J said at 689: "[T]he Court is not required under s 20 to undertake a reductionist process analogous to the taking of partnership accounts (notoriously one of the most time-consuming and expensive of litigious exercises) by examining every alleged 'contribution' of the kinds described in the section with a view to putting a monetary value on it in order to reach an accounting balance one way or the other, which is to be then eliminated by the requisite financial adjustment. Rather the Court is required to make a holistic value judgment in the exercise of a discretionary power of a very general kind." I would endorse this approach as well as his Honour's further observation that, while the parties may value non-material contributions to the welfare of the family more highly than material contributions, these are not matters that lend themselves to detailed examination and analysis by a Court. [42] Generally, the Court has a broad discretion in determining the approach to adopt in considering what order to make under s 20(1). As Brereton J (with whom Basten JA and Hunt AJA agreed) said in Kardos v Sarbutt at [51] (relying on Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513): "Although in the majority of cases, the global approach is likely to be more convenient than an asset-by-asset approach, the application of the asset-by-asset approach does not of itself amount to an error of law." Brereton J at [54] observed that: "As [ Lenehan v Lenehan [1987] FamCA 8; (1987) 11 Fam LR 615] shows, the principal indicator for an 'asset-by-asset' analysis is discrepant identifiable contributions of the parties to different assets: in that case, the proportionate contribution of the parties to the acquisition, conservation and improvement of the matrimonial home on the one hand, and to the business assets on the other, were quite different. Such an approach will often be contra-indicated where, as here, there has been a pooling of income." [43] If a global approach is adopted, regard must still be had to the origin and nature of the different assets. If an asset-by-asset approach is adopted, care must be taken to avoid the risk of undervaluing domestic and non-financial contributions and regard must be had to the overall result: Kardos v Sarbutt at [51] and [54]. Some situations do not lend themselves either to a pure global approach or to a pure asset-by-asset approach. In some cases the judge may decide to have regard to the particular contributions made to individual assets, weigh up the overall respective contributions to the parties and make differing apportionments in relation to the interests of the parties in different assets. 111In Separovich v Ferrao [2011] NSWCA 180, Beazley JA (with whom McColl and MacFarlan JJA agreed) stated: [36] There are, as might be expected, a plethora of authorities as to how the Court should approach an adjustment of property under s 20. It is sufficient for the purposes of this case to refer to the following. In Manns v Kennedy [2007] NSWCA 217 ; DFC 95-406 Campbell JA (Santow JA and Bryson AJA agreeing) observed, at [62], that under s 20, the Court was required to make a holistic value judgment in the exercise of a discretionary power of a very general kind: see Davey v Lee (1990) 13 Fam LR 688 at 689; Ross v Elderfield [2006] NSWCA 129 ; DFC 95-338 at [35]; Kardos v Sarbutt [2006] NSWCA 111 ; DFC 95-332 at [36]. [37] However, that " holistic value judgment" is the final step in the process of arriving at an order, being the just and equitable adjustment of property, having regard to the contributions identified in s 20. Before the court can make that final determination, it is necessary to identify and value the property in respect of which it is open to the court to make an adjustment and to identify and value the contributions that are being taken into account: see Howlett v Neilson [2005] NSWCA 149 ; DFC 95-321 at [25]; Saric v Steward [2006] NSWCA 260; (2007) DFC 95 at [61]; Chanter v Catts [2005] NSWCA 411; 64 NSWLR 441 at [22]. [38] The authorities recognise that notwithstanding that the court exercises a wide discretion under s 20, a mathematical calculation of the contribution of the parties is of assistance in finding and testing conclusions as to what is just and equitable and in promoting transparency and consistency in decision-making: see Howlett v Neilson per Hodgson JA at [39]. [39] The discretionary considerations that may influence and/or determine the ultimate order made depend upon the particular circumstances of the case. As Ipp JA observed in Bilous v Mudaliar [2006] NSWCA 38 ; 65 NSWLR 615 at [63]: "Determinations as to what orders should be made under s 20 are to be made solely on the grounds of the justice and equity of the case. The justice and equity of the case may derive from the fact that the party who owns the family home or other property was able to retain that property, while the market value increased, because 'of joint efforts of wage earning, homemaking and parenting, and mutual support'. In some instances the non-financial contributions of one party may result in property of the kind in question not having to be sold. In other instances, the non-financial contributions of one partner may allow the other to advance his or her career and earn a high income that enables the property in question to be maintained and retained. Thus, an increment in capital value may well result, indirectly, from 'joint efforts of wage earning, homemaking and parenting, and mutual support'." 112Mathematical calculations, whilst not determinative, cannot be ignored. In Manns v Kennedy , Campbell JA (with whom Santow JA and Bryson AJA agreed) stated: [64] However, the "holistic value judgment" is the final step in the process of arriving at an order, namely deciding what adjustment of property seems just and equitable having regard to the contributions identified in paragraphs (a) and (b). Carrying out the task that section 20 sets requires, before that final step is carried out, an identification and (so far as possible) valuation of the contributions that are being taken into account and an identification and (so far as possible) valuation of the property concerning which it is open to the court to make an adjustment: Howlett v Neilson [2005] NSWCA 149 at [25]; (2005) 33 Fam LR 420 at 407; Saric v Steward [2006] NSWCA 260 at [61]; (2007) DFC 95,401 at 78,713; Chanter v Catts [2005] NSWCA 411 at [22]; (2005) 64 NSWLR 360 at 366. [65] Further, even in carrying out that final step, "there is no warrant for ignoring the rigour that mathematics can provide": Ross v Elderfield (at [49] per Handley JA (with whom McColl JA and Hislop J agreed)). As Hodgson JA said in Howlett v Neilson (at [39]; 411): "... while I do not think that these matters can be determined on such mathematical calculations, I think mathematical calculations are of some use in guiding and testing conclusions about what is just and equitable, and also in promoting transparency and consistency in decision-making." 113In this case I will adopt a global approach. This is particularly so given the difficulty in ascertaining in detail the respective contributions to particular assets. This difficulty has arisen because of the passing of time. In addition there is no property which stands apart from their joint endeavours. 114One of the principal assets of the parties at the commencement of the relationship was the property owned by Judith at North Avoca. There was a substantial capital gain on the sale of the property which was then translated into the MacMasters Beach property. 115In her submissions Judith sought the following: The costs of the sale, the liabilities to RHG Mortgage Corporation and the plaintiff's mother, Norma Odlum, should be paid from the proceeds of sale before any distribution to the parties. The plaintiff should then receive the following sums: $599,000 to reflect her initial contribution, $15,000 to reflect the fact that the defendant would retain the excavator $46,000 to reflect the money already received by the defendant Any balance should be divided 60:40 in the plaintiff's favour The proposed orders are just and equitable having regard to contributions. If the proposed orders were made, the defendant would receive the following: $179,348 as a cash payment $15,000 to reflect the fact that the defendant would retain the excavator $46,000 to reflect the money already received by the defendant These amounts total $240,000. 116Judith submitted that such a payment is just and equitable having regard to the fact that the Darryl had negative assets at the commencement of the relationship and his earnings over the entire course of the relationship totalled about $280,000. 117Judith suggested that, from the joint pool of assets, $125,000 be paid to her mother to discharge the loan and other costs and liabilities be met before distribution to the parties. She then claims $599,000, being the sale price of her Easter Parade property in 2003. She proposes that the balance then be divided 60:40 in her favour. Darryl agrees that all liabilities should be met first. He then claims his personal belongings that preceded the relationship with the balance of the assets to be split 50:50 between Judith and him. 118This application by Judith squarely raises the place of the erosion principle in these matters. That principle was discussed in Howlett v Neilson [2005] NSWCA 149 by Hogson JA as follows: [30] In addition to the contributions of the parties during a relationship, regard needs also to be had to initial contributions. In cases decided under the Family Law Act, there has developed what is sometimes referred to as "the erosion principle". That principle was considered and explained in Pierce . That case concerned a marriage of eight years, preceded by two years' cohabitation. The assets of the parties were found to be $319,190.00. At the time of marriage, the husband had assets to the value of $226,000.00, while the wife had assets with an estimated value of $11,500.00. The trial judge considered the parties' contributions during cohabitation to be equal. He gave some additional weight to the greater initial contribution of the husband, but said that the relevance of this was diminished due to the length of cohabitation, a little over ten years, and the substantial other contributions. He took into account the husband's contribution in caring for the children since separation, and assessed the contributions of the parties to be 55:45 in favour of the husband. The Full Court allowed an appeal, holding that the trial judge erred in his assessment of the contributions of the parties in that he failed to attach sufficient weight to the greater initial contribution of the husband and his post-separation contribution in caring for the children. The Full Court held that, having regard to the facts as found by the trial judge, the result embodied in his reasons was unreasonable; and that in re-exercising the discretion, the contribution to the parties should be assessed at 70% to the husband and 30% to the wife, with a further 5% adjustment in favour of the husband for factors under s 75(2) of the Family Law Act. ... [34] I have found no clear statement concerning the "erosion principle" in cases under the Property (Relationships) Act. In my opinion, it is by no means clear that it would apply to the same extent as under the Family Law Act, where matters other than contributions can be taken into account, and where the relationship itself involves a public commitment to mutual support for life (as noted in Evans at 78-79). [35] However, it is plainly not the case that the contributions of the parties should be considered as making it just and equitable that there be an order only concerning increases in the value of assets over and above initial contributions. 119In Kardos v Sarbutt [2006] NSWCA 11, Brereton J referred to some of Hodgson JA's remarks quoted above and commented: "...There is no reason why this approach would apply to any less extent under the Property (Relationships) Act than under the Family Law Act; it does not involve taking into account matters other than contributions, but is part of the methodology for weighing and balancing the different contributions. [67] Significant factors affecting the application of the "erosion principle" are the length of the relationship and, in particular, the extent to which there have been other or off-setting contributions which also have to be satisfied from the available pool. It is to accommodate those contributions that the initial contributions are "eroded". 120In Bilous v Mudaliar Ipp JA (with whom Giles and McColl JJA agreed) was cautious in adopting Brereton J's approach: "[68] In Kardos v Sarbutt (at 567 [64]-[66]), Brereton J accepted the "erosion principle", regarding it as "part of the methodology for weighing and balancing the different contributions" when weighing the initial contributions with all other relevant contributions. There are dangers in elevating a process of reasoning to the status of a principle, and for the reasons I have given I consider it preferable that the erosion principle (as a rule) should play no part in a determination under s 20." 121However, his Honour propounded his agreement with Hodgson JA in Howlett v Neilson in relation to the notions which underline the "erosion principle": "[48] The initial contributions made by parties to a de facto relationship may often take the form of a family home or other assets in the form of immovable property. During the course of the relationship, property may be acquired and registered in the name of one of the parties, alone. The duration of the relationship and the significance of the respective contributions of the parties may lead to a court adjusting the parties' interests in such a way that the party who provides such property (or the party who is the registered owner) receives substantially less than the full value of that property when the relationship is terminated. [49] The adjusting order may require the party making the initial contribution (or the party who is the registered owner) to pay the other party a sum of money that represents a proportion of the increase in the capital value of the property concerned or, indeed, its overall value. Hodgson JA emphasised the latter possibility in Howlett v Neilson when he said (at 410 [35]): "[I]t is plainly not the case that the contributions of the parties should be considered as making it just and equitable that there be an order only concerning increases in the value of assets over and above initial contributions". (Emphasis added)" 122The erosion principle has been discussed in a number of recent cases. In Wendt v Wood [2011] NSWSC 781 Slattery said: "[98] In the course of final submissions, counsel...referred me to the so-called " erosion principle". Indeed, it is not a principle of law at all but really a short hand description of the approach to the evaluation of contributions which recognises that initial contributions do not carry forward full weight but diminish in significance by reason of the other subsequent contributions made by both parties during the relationship: Sharpless v McKibbin [2007] NSWSC 1498 at [78] per Brereton J. It is not really a question of erosion but of what weight is to be attached in all the circumstances to the initial contributions, in the context of all the contributions." 123In this case Judith seeks to resist the application of the "erosion principle" so that she retains the full value of her initial contribution and its increase in value up until its sale in 2003. 124In Wendt v Wood Slattery J clarified that a party claiming "erosion" of the initial asset to their benefit does not bear the onus of proving that "erosion": "This does not involve casting any particular onus on a party to prove that an initial contribution "eroded" - save for the extent that any party contending that it has made a contribution bears the onus of proving that contribution: Sharpless v McKibbin [2007] NSWSC 1498 ; Kardos v Sarbutt (2006) 34 Fam LR 550 ; [2006] NSWCA 11 at [66]-[67]. Counsel for Mr Wood is quite correct that such considerations are of particular importance in this case because of the imbalance of assets between the parties at the beginning of the relationship." 125Therefore, Darryl does not need to prove that Judith's property has "eroded" to his benefit but rather, he needs to prove that it is just and equitable to make the orders he requests given the parties' respective contributions. 126I do not consider it just and equitable that Judith retains the full benefit of her initial contribution, being her Easter Parade property, as well as its full increase in value until 2003. When the property was sold the parties had been together for over 10 years and had three children together. Darryl had made financial and non-financial contributions to the Easter Parade property and had deposited income into the parties' joint account which indirectly helped ensure that Judith could preserve her initial asset. As the cases make clear, there is no rule to apply in cases such as these but rather, it is a question of what weight the initial contribution should be granted in the context of the overall contributions. 127Judith's counsel relied on Jensen v Ray [2011] NSWCA 247. In that case, the parties had been in a domestic relationship for 17 years. At the beginning of the relationship, Ms Ray had, amongst other property, a house worth $70,000; Mr Jensen had a vehicle worth about $100 and savings of $10,000. Mr Jensen was the sole income earner during their relationship and Ms Ray did all the domestic tasks and made no direct income contribution save for a pension received for the first year. As at the date of the trial hearing, Ms Ray still owned the same property, then worth $230,000, and Mr Jensen owned personal effects, superannuation and a car to the value of $15,000. The Court of Appeal held that a just and equitable apportionment of the pool of assets was 80:20 in favour of Ms Ray. 128In my view there are key differences between the facts of this case and those in Jensen v Ray. First, the property that was the initial contribution is no longer part of the asset pool of the parties. That is significant because the proceeds of sale have been used to purchase a joint asset to which both parties have contributed. Second, the Court of Appeal held that the appreciation in value of Ms Ray's property "was not attributable in any large way to ongoing contributions to its improvement during the relationship, but almost entirely to its initial introduction". In this case Darryl has contributed to the increase in value of Judith's Easter Parade property. Third, Ms Ray and Mr Jensen did not have children, so there was no pooling of financial and non-financial contributions to care for them in a joint fashion, as there has been in this case. In Jensen v Ray Ms Ray would have been able to retain her property without Mr Jensen's financial backing, while in this case, I do not think Judith could have retained her Easter Parade property and raised their children without financial contributions from Darryl. 129Despite these points of difference, Jensen v Ray demonstrates that the court does identify that a disparity in initial contributions that can lead to a disparity in apportionment of the shared asset pool at the termination of a relationship, to reflect the respective contributions of the parties. 130I agree with Brereton J's general summary of the principle to be applied, at [28]: "[28] Ultimately, it is a question of weighing the initial contributions of a party with all other relevant contributions to achieve a just and equitable result, the nature and the source of the property and the manner in which it has been used during the relationship being material considerations. This will typically involve one party being regarded as having contributed to the improvement or conservation of an asset initially introduced by the other, but in a lesser proportion than that first party's overall contributions to the relationship: usually it is neither appropriate that any increment in value of an asset introduced exclusively by one party be equally shared between the parties, nor that it be wholly attributed to the party who introduced it; the answer will typically lie somewhere in between. In deciding where within that range it lies, not only the nature, value and source of the property and the manner in which it was being used during the relationship are material; so too are the quantum and quality of the offsetting contributions made during the relationship; the composition of the pool of assets at the time of hearing and in particular the extent to which they reflect those initially introduced; and whether any accretions to capital were attributable to contributions made during the relationship [cf Sharpless v McKibbin , [86]]." 131In the circumstances of this case I consider that the capital gains on the Easter Parade property initially introduced by Judith should be shared in a proportion which is largely in Judith's favour. The capital gains on the other properties should be shared equally between the parties given their joint contributions to their purchase and upkeep. 132In relation to non-financial contributions, the court does not consider that the contributions of a de facto partner as homemaker and parent should be regarded as in some way inferior to the corresponding contributions of a spouse: Black v Black (1991) 15 Fam LR 109, cited with approval in Evans v Marmont (1997) 42 NSWLR 70 at 74. 133The Court of appeal in Evans v Marmont also said at 74 that: "It would not now be suggested that an appropriate way to value the contributions of a homemaker or parent is by reference to wage levels applicable to a domestic servant, or any other commercial provider of corresponding services or benefits: Black v Black . It is also established that it is important to give full and proper value to contributions of the kind referred to in par (b): Singer v Berghouse (1994) 181 CLR 201; Green v Robinson ." 134Therefore appropriate weight should be given to Judith's contributions pursuant to s20(1)(b). 135Judith and Darryl's contributions from income (comprising Centrelink payments, salary, superannuation, gifts from Judith's mother or employer payouts) are roughly equal. 136As stated above, apart from capital gains on Judith's Easter Parade property, I consider that capital gains were contributed in close to equal proportions by the parties. The capital gains on Judith's Easter Parade property are attributable to the parties in a proportion that largely favours Judith. 137The non-financial contributions favour Judith by a large proportion. 138The parties should repay Judith's mother and any other liabilities that they have, including costs associated with the sale of the MacMasters beach property, if that occurs. Darryl should retain the personal effects listed at paragraph [4] in his orders sought, save for the tools which are to be dealt with separately. In relation to the balance of the assets, having regard to the contributions of the parties, and giving appropriate weight to Judith's initial contribution and her share in its appreciation, I think that an appropriate adjustment is 65 per cent of the remaining assets to go to Judith. 139Darryl has already retained $19,910, being the GST refund on the excavator and the insurance payout for the Pajero. In addition he should retain the excavator, valued at $15,500 (being the middle ground of the auction estimate of $15,000 to $16,000). These amounts should be shared in the proportion of 65 per cent to 35 per cent in favour of the plaintiff. The allowance for these amounts will be $23,016. 140The furniture should be dealt with in the manner proposed by the defendant, such that each party retain furniture of equal value. The tools in the shed should be sold and the net proceeds shared in a proportion 65:35, favouring the plaintiff. The retention by Darryl of his furniture and a half share in the balance of the furniture will go some way to compensate for the delay in selling the MacMasters beach property. 141The assets, including what has already been taken by the parties but excluding superannuation, total $1,183,370 after repayment of the known liabilities. After retention by Darryl of his art work and allowing for my order in relation to the furniture and the tools, there is $1,160,370 available for distribution. Subject to the sale of the MacMasters beach property at the agreed value of $1,250,000, Judith would be entitled to $754,240 and Darryl would be entitled to $406,130. 142Taking into account what Darryl has already retained, and the orders I make in relation to the excavator, the furniture and the tools, there remains $370,720 to be paid to Darryl and $125,000 to Norma Odlum. The plaintiff wishes to purchase Darryl's share of the property and I will, in my orders, allow her 21 days in which to come to an agreement to purchase the defendant's share in the MacMasters beach property and discharge the liability to Norma Odlum. Failing that, the property will be sold.

[22]

Orders 143I make the following orders: (1)The defendant is to retain the Kobalco excavator, of which he shall have full beneficial ownership; (2)The defendant is to retain all artworks and personal belongings that he owned at the commencement of the relationship, including: (a)Four lithograph artworks; (b)Two Brazilian oil paintings; (c)Three water colour paintings by Casab; (d)One queen bed, mattress and matching side tables; (e)Three Persian rugs; (f)Two two-seat fabric sofas; (g)Cedar dining table; (h)Leather coffee table (Peru); (i)Oak writing desk/storage unit; (j)Leather chesterfield sofa; (k)Two brass horse sculptures; (l)Chinese alter table; (m)Two small Chinese chests; (n)Dark blue sapphire stone; (o)14ct gold men's ring; (p)18ct gold VanCleef & Arpels cuff link; (q)Mahogany jewellery box. with liberty to apply in respect of the delivery of any item. (3)Subject to order (2), the furniture and contents contained in the Macmasters Beach property are to be divided equally between the parties and for that purpose the Plaintiff is to prepare two lists of furniture and contents of similar value and the Defendant is to select one of those lists; (4)The items in the shed are to be sold and the net proceeds of sale are to be divided between the parties in a proportion 65:35 in favour of the plaintiff; (5)Within 21 days from the date of this judgment the parties do all acts and things and sign all necessary documents so as to list the property at Damien Drive, MacMasters Beach for sale by private treaty and for that purpose they shall: (a)Appoint Raine and Horne , Avoca as the real estate agent for the sale of the Macmasters Beach property, the costs of and incidental to such appointment to be borne equally by the parties as and when they fall due. (b)Instruct Catherine Davies, conveyancer at the Entrance, to prepare a contract for the sale of the MacMasters Beach property, the costs of and incidental to such appointment to be borne equally by the parties upon completion of the sale. (c)List the reserve price for the MacMasters Beach property at such price as the parties shall agree in writing or, where no agreement is reached, at $1,250,000. (d)Execute all documents requested by the real estate agent and the conveyancer for the sale of the MacMasters Beach property. (e)Execute all documents necessary to complete the sale of the MacMasters Beach property. (f)The parties shall cooperate with the real estate agent including but without limiting the generality of the foregoing: (i)Pay to the real estate agent in equal proportions the marketing costs of the sale. (ii)Make a key available to the agent. (iii)Allowing the inspection of the Macmasters Beach property at all reasonable times requested by the agent. (iv)Doing or saying nothing to hinder or prevent a sale from being effected at the best possible price. (v)Doing all things necessary to prepare the property for sale including cleaning the internal and external areas of the home, engaging a gardener to tidy the gardens and surrounding lawns, carry out any necessary repairs to the property and the home, reconnecting the electrical power to the shed, carrying out any necessary repairs and maintenance to the pool. (vi)Maintain the MacMasters Beach property including gardens and surrounding landscape in a clean and tidy condition at all times. (6)If the property is not sold within 3 months, reserve liberty to apply for orders for the auction of the property. (7)On settlement of the MacMasters Beach property the proceeds of sale shall be paid in the following manner and priority: (a)All costs and expenses incurred on sale that may be outstanding, including but not limited to legal costs and disbursements, agents' commission and expenses, including the reimbursement to either party of such expenses paid by them prior to the sale; (b)Payment of the amount required to discharge mortgage registered number 8681424 to RHG Mortgage Corporation Limited registered on the title to the Macmasters Beach property; (c)The sum of $125,000 to Ms Norma Odlum; (d)The sum of $23,016 to the plaintiff; (e)The balance then remaining is to be paid in the following proportions: (i)65 per cent to the plaintiff; (ii)35 per cent to the defendant. (8)The defendant is to do all acts and things so as to procure from ASK Funding Limited a Withdrawal of Caveat in registrable form in respect of Caveat registered number AF480513 registered on the title to the Macmasters Beach property; (9)The plaintiff is to do all acts and things so as to procure from Mrs Norma Odlum a Withdrawal of Caveat in registrable form in respect of Caveat registered number AF526048 registered on the title to the Macmasters Beach property; (10)Subject to these orders, I declare that each party is entitled to the beneficial ownership of any other property of which he or she is the legal owner or which is in his or her possession, custody or control. 144I will hear the parties on costs.