Bull v Selmore

Supreme Court of NSW|2004-11-10|Before: Mr P

CITATION : Bull v Selmore [2004] NSWSC 1059 HEARING DATE(S) : 9, 10 November 2004 JUDGMENT DATE : 7 December 2004 JURISDICTION: Equity Division JUDGMENT OF : Master Macready at 1 DECISION : Paragraph 81

CATCHWORDS : Family law - Property interests - Division of assets - Whether leave should be granted in application for adjustment of interests in property by de facto partners - Whether provision to be made for plaintiff's contribution to raising of child produced by relationship. - Held - Leave granted - Property at 27 Yirra Riad, Mount Colah be sold - Proceeds from sale should be split 40% to plaintiff and 60% to defendant. PARTIES : Christine Ann Bull v Trevor John Selmore FILE NUMBER(S) : SC 5143 of 2002 COUNSEL : Mr P.G. Maiden for plaintiff Miss L. Snelling for defendant SOLICITORS : Truman Hoyle for plaintiff Milne Berry & Berger for defendant

5143 of 2002 Christine Ann Bull v Trevor John Selmore

JUDGMENT 1 Master: This is the hearing of a claim for adjustment of the parties' property interests under s 20 of the Property (Relationships) Act 1984 (NSW). The parties lived together in a de facto relationship from October 1978 until September 1986. There was one small break in the relationship for five months in 1979 but that is not of consequence. The parties had a child Jennifer who was born on 17 December 1978. 2 The claim as originally formulated was a claim under the Property (Relationships) Act 1984 (NSW) and a constructive trust claim. At the hearing the plaintiff did not proceed with the constructive claim and the hearing was conducted on that basis. Family history 3 The defendant was born on 25 November 1939. The plaintiff was born on 1 October 1948. They first met in 1975. 4 On 16 July 1971 the defendant and his wife Julie Selmore purchased as joint tenants a property at 61 Bayview Avenue, Five Dock for $12,000.00 with a mortgage from the Rural Bank of New South Wales 5 On 22 July 1975 Julie Selmore's interest in the property at Five Dock was transferred to the defendant pursuant to an order of the Supreme Court Family Law Division dated 4 July 1975. 6 From 1975 to December 1977 the plaintiff worked at Sundell Motors, Chatswood. In March 1978 the plaintiff became pregnant and in October of that year the plaintiff moved into defendant's property at Five Dock and it is said the de facto relationship then commenced. 7 On 29 November 1978 the defendant purchased a property at Croydon from David Stevenson for $22,000.00 with a mortgage from the Bank of New South Wales for $10,000.00. 8 The parties' child, Jennifer was born on 17 December 1978 and in March the following year the plaintiff and Jennifer moved to the plaintiff's parents' home. In August 1979 when the plaintiff and the defendant reconciled the plaintiff and Jennifer moved back to the Five Dock property. 9 In 1980 the parties inspected a property at Wombeyan Caves Road, Mittagong and after the defendant sold the Croydon and Five Dock properties the parties moved to the Mittagong property, which was purchased in the defendant's name.

10 In August 1980 the defendant sold the Croydon property to Janet Cullen for $41,000.00 and the then mortgage of $8,000.00 was discharged.

11 In September 1980 the defendant sold the Five Dock property to Franco and Elisa Pelle for $59,500.00. It was in October 1980 that the defendant purchased the rural property at Mittagong for $55,000.00. No monies were borrowed for its purchase as the defendant purchased it out of the sale proceeds and his savings. A little later he purchased some leasehold property at a cost of $15,000.00. 12 From October 1980 the parties lived in a shearing shed on the Mittagong property and in 1982 they purchased a flock of sheep. There was extensive work done to the property until a drought in 1983 caused a change in their plans. They then proceeded to subdivide and sell the property.

13 On 29 July 1983 an account was opened in the names of Trevor John Selmore and Mrs Christine Anne Selmore, as trustees for Miss Jennifer Anne Selmore with Commonwealth Savings Bank of Australia. Bowral Branch Account No: 5001416 (Book 1 of Exhibit B - deposit of $54,100.00). In September 1983 there was a withdrawal of $10,800.00 from this account. In the same month the defendant sold Lot 1, DP 591743 and Lot 14 of DP 632942 for $45,000.00. On 16 September 1983 a sum of $39,754.00 was deposited into the trustee account.

14 On 22 September 1983, the defendant sold Lot 11, DP 632946 for $29,000.00 and on 23 September 1983 the sum of $25,441.57 was deposited into the trustee account.

15 On 2 November 1983 Lot 13, DP 632924 Mittagong was sold by defendant for $30,000.00 and on 3 November 1983, $26,274.08 was deposited into the trustee account. On 8 November $99,975.45 was withdrawn from this account and was used by the defendant on 11 November 1983 to purchase a property at 34 Valley Road, Hornsby for $110,000.00 from Lloyd and Fiona Bright. There was no borrowing for this purchase.

16 In late 1983 there was a sale of a portion of the property being the old system on leasehold land for $45,000.00. 17 On 27 February 1984 the defendant sold Lot 12 for $35,000.00 and on 2 March 1984 the sum of $30,291.00 was deposited into the account at Hornsby of Trevor John Selmore and Mrs Christine Anne Selmore. 18 The total of the sale price of the Real Property Act 1900 (NSW) land was $139,000.00 and that of the old system land $45,000.00. After allowing for subdivision expenses of $32,000.00 there had been a profit over and above the purchase price of some $82,000.00. This does not take account of selling costs.

19 During the period 1983 to 1985 the defendant was at times unemployed and the family received social security benefits. In 1985, the plaintiff who had not been employed during the relationship commenced a part time real estate course at college.

20 In January 1986 the defendant sold the Hornsby property for $132,000.00 and in the same month the defendant purchased the Mount Colah property for $80,000.00 plus costs.

22 In May 1986 the defendant commenced a picture framing business known as "The Framing Corner" at Chatswood.

23 On 8 June 1986 the defendant and a friend, Lenore Peterson, purchased a property at Hornsby as tenants in common for $37,000.00.

24 The plaintiff says the defendant left the property at Mount Colah in September 1986 although the defendant appears uncertain as to the date. The plaintiff then commenced part time work at Westpac Banking Corporation.

25 In September 1986 the sum of $5,833.72 was withdrawn from the parties' savings investment account and the defendant opened account at Hornsby in his name, being Account No: 5003919 and deposited into that account the sum of $5,833.72.

26 From 10 October 1986 the defendant paid $40.00 per week to the plaintiff for Jennifer's maintenance. How long this continued is not clear on the evidence. In 1987 the defendant carried on his own framing business with a partner, Dieter Theile. 27 In March 1987 the plaintiff attended Mill & Noyce solicitors. In that month consent orders were made at the Local Court of Petty Sessions, Hornsby in respect of the defendant's access to his child, Jennifer.

28 In January 1988 the plaintiff stopped work at Westpac Banking Corporation. 29 On 22 February 1989 the defendant and Leanor Anne Peterson purchased a property at Hornsby being the whole of land in identifier 11/749606 for a consideration of $48,000.00. The solicitor was a G. F. Foster of Redman Foster & McIntyre, Solicitors, 26 Montgomery Street, Kogarah. 30 In May 1989 the plaintiff commenced work at St Patrick's School Asquith and Our Lady of the Rosary, Waitara. This continued until May 1990 when the plaintiff commenced secretarial work with Dr. J. A. Doyle at Pymble. 31 In 1989 and 1990, the defendant installed a pool at the Mount Colah property. 32 In May 1992 the defendant installed a further shed at the Mount Colah property. He then commenced to reside in that shed for two or three nights a week and he also moved his picture framing business to that shed.

33 In January 1994 the plaintiff and the defendant purchased shares with Barclays De Zoete Limited. The plaintiff invested $900.00, which was returned to her in due course. What happened to the defendant's investments does not appear on the evidence.

34 In mid 1995 the defendant commenced renovation work at the Mount Colah property. He did the majority of the work and landscaped the front of the house.

35 In 1999 the defendant purchased a property at Narrawallee with Barbara Annett O'Brien as tenants in common.

36 In February 2002 on completion of her tertiary education, the parties' child, Jennifer moved to Victoria. In July of that year the defendant moved into the house at the Mount Colah property. Both parties have remained living in the house, separately and apart, to the present time.

37 In August 2002 the plaintiff received a letter from the defendant asking her to vacate the property. On 22 October 2002 the plaintiff filed a Statement of Claim in this Court.

38 On 14 January 2003 the defendant filed his defence. 39 As is apparent from what I have set out above that the application is 14 years out of time. Before dealing with the questions that arise on the application for an extension of time, I will briefly refer to some matters to do with the parties' property and contributions, as it is necessary to understand these for the purposes of considering the extension of time.

Property of the parties at the commencement of the relationship 40 The plaintiff had some furniture, jewellery and personal effects estimated to be worth between $6,000.00 and $9,000.00. She had a car worth between $2,000.00 and $3,000.00 and savings of about $1,000.00. 41 The defendant had the following assets at the date of commencement:

Fivedock property $45,000.00 Motor vehicle $10,000.00 Boat $5,000.00 Campervan $10,000.00 Savings $20,000.00 Total $90,000.00 Property of the parties at the conclusion of the relationship 42 The plaintiff maintained that separation occurred in September 1986. There was some suggestion, as I mention later in this judgment, from the defendant that it might have occurred some months earlier. There are some factual matters, which point to the plaintiff's version being more likely to be correct. These are that it was on 30 September 1986 that the defendant closed the joint bank account and opened an account in his own name with funds withdrawn from that account. It appears that on 10 October 1986 the defendant commenced paying $40.00 per week in child support payments to the plaintiff. In the circumstances I am satisfied that the date of separation contended for by the plaintiff is correct. 43 At separation the parties divided up their furniture and personal possessions. The plaintiff had a car, which was sold for $6,000.00, and the defendant says he contributed a further $6,000.00 so the plaintiff could purchase a better car, which she and Jennifer could use. The car was purchased but the evidence disclosed that the defendant required the repayment of the $6,000.00, which the plaintiff paid over time. 44 At the time when the relationship was failing in early 1986 the defendant sold the Hornsby house and he purchased from the proceeds a house at Mount Colah. It was smaller and dilapidated and was purchased for $80,000.00. The property was valued at the date of separation at $90,000.00 and at the date of the hearing had a value of $450,000.00. 45 There is a dispute about what was said about the purpose of the purchase. The plaintiff says that the defendant was purchasing it for the parties' child Jennifer and herself. The defendant says that he said that the property was purchased to allow the plaintiff and Jennifer to reside therein until Jennifer completed her schooling. In fact he allowed the plaintiff and Jennifer to reside there until Jennifer left home when she reached the age of 24 years. This is a total period of 18 years. 46 As there were some funds left over, in 1994 the defendant spent $30,000.00 on the acquisition of some shares. His other asset at the conclusion of the relationship, which he did not disclose to the plaintiff, was a block of land purchased with Leonora Ann Petersen on 6 June 1986. She was his partner after the conclusion of the relationship with the plaintiff 47 The defendant also kept, unknown to the plaintiff, the term deposits and savings of $70,000.00 at the date of separation. Financial contributions 48 It is plain that it was only the defendant who purchased with his monies the real estate owned at the commencement of and during the course of the relationship. The defendant worked for the substantial part of the relationship and on occasions he applied for social security when he was out of work. The plaintiff was not employed during the relationship as she was, by agreement looking after the child Jennifer. Non-financial contributions 49 There are non-financial contributions by both parties in this matter. They both contributed by their efforts to the improvement of the Mittagong property and the business of hiring it out to campers which was carried out on the property. In addition the plaintiff was at home during the period of the relationship and there are substantial parenting and homemaker contributions on the plaintiff's part. Although she was working after the relationship concluded, the plaintiff also had the care of the child and there are parenting contributions to be taken into account on her side and also to a lesser extent on the part of the defendant. 50 The parties made a number of submissions about the benefits that have been received by the plaintiff by virtue of the provision of the home at Mount Colah. Application for extension of time 51 Section 18 of the Property (Relationships) Act is in the following terms:

"18. Time limit for making applications (1) Except as provided by subss (2) and (3), where de facto partners have ceased to live together as husband and wife on a bona fide domestic basis, an application to a court for an order under this Part shall be made before the expiration of the period of two years after the day on which they ceased, or last ceased, as the case may require, to so live together. (2) A court may, at any time after the expiration of the period referred to in subs (1), grant leave to a de facto partner to apply to the court for an order under this Part (other than an order under s 27 (1) made where the court is satisfied as to the matters specified in s 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 subs (2), a court grants a de facto partner leave to apply to the court for an order under this Part, the de facto partner may apply accordingly." 52 The focus of the enquiry is thus on the hardship to be suffered as a result of any order. In Parker v McNair (1990) DFC 95-087 McLelland J said: "It seems to me that on the true construction of that subsection, although the preponderance of hardship is a condition which the court must find satisfied before it can grant leave, it is not a condition the satisfaction of which requires the granting of leave. The use of the expression "may" in that subsection gives the court a residual discretion and other matters relevant to the interests of justice as between the parties can be taken into account including, for example, the question of whether there is an adequate explanation for delay which has occurred." 53 In Beavan v Fallshaw (1992) 15 Fam LR 686 Bryson J, after referring to the comments of McLelland J, had the following to say on this aspect of delay: "I would respectfully say that unlike Young J (see Trelore v Romeo) (1991) DFC 95-108 I do not derive assistance from cases decided under the Testators Family Maintenance and Guardianship of Infants Act 1916. In that case at 76,386 Young J, said " ... it cannot be the law that where a statute clearly lays down a general time limit giving the discretion to the Court to extend the time limit that the court should approach the matter with a general policy of extending time limits unless the defendant could show that he has suffered hardship." This proposition in all its generality could not be doubted but I must respectfully say that I do not find it of assistance in approaching s18, which does not lay down a general time limit and give discretion to the Court to extend the time limit, but makes two different provisions, one in s18(1) imposing a time limit, and another in subs(2) empowering the Court to grant leave to apply after that time limit, but not in terms which refer to extending the time limit or in terms which in any other way accord primacy to the provisions of subs(1) or indicate that subs(2) is to be administered in such a way as to marshal litigants into complying with subs(1). 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 a discretion, without any special jealousy for the observance of the time limit or particular concern for it. The language of the section is not such as to extinguish claims unless the court makes an exception; but s18 regulates the presentation of claims in different ways according to the time when they are presented, imposing a requirement to obtain leave to apply in cases such as the present. BC9201662 at 3

In considering whether a court should exercise a 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 in my understanding legally necessary to define exactly the ground on which a discretion is exercised favourably to an applicant. There is a favourable exercise of discretion when the Court comes to the view that there should be a favourable exercise, which I would restate as the view that it is appropriate in the circumstances that there should be an order.

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. While I prefer litigants to proceed in a timely way, subs(2) ought not, in my opinion, to be viewed as an opportunity to impose order on litigants or to instil discipline in them. BC9201662 at 4" 54 I will first deal with the question of the explanation for the failure to commence the proceedings within time. In March 1987 there was a dispute about access that was dealt with at the Hornsby Local Court. Mill & Noyce, solicitors, represented the plaintiff and on 13 March 1987 they sent her a letter dealing with the result of those proceedings. In that letter they gave her advice about her rights as follows: "As indicated by you in conference on the 17th February 1987 we confirm that it is our view you have substantial rights to bring proceedings for a property settlement. Those rights may arise under the general principles of equity or in the alternative under the provisions of the Defacto Relationships Act. As we understand it, all assets are held in Mr Selmore's name." 55 The letter then went on in some detail to explain the time limits that applied for proceedings to enforce an equitable obligation and bringing proceedings under the Defacto (Relationships) Act. The plaintiff gave evidence of certain discussions, which she had with the defendant when Mount Colah was purchased. Paragraph 61 is as follows: "61. In early 1986 the Hornsby Property was sold and we purchased the Mt. Colah Property, and moved in. The Mt. Colah property was held in Trevor's name alone. Initially, Trevor said to me with words to the following effect: Trevor: ' The Mt Colah property is for you and Jennifer but I am going to put the property in my name although I may put the property in Jennifer's name.' A few days later, Trevor changed his mind in this regard and said: Trevor: ' I can't put the property in Jennifer's name because she is not old enough so I'm going to put it in my name.'"

56 In her affidavit the plaintiff then dealt with the conclusion of the relationship and the advice that she received from the solicitors. She then referred to the situation at the time she received the letter from Miller Noyce, solicitors, of 13 March 1987. In paragraphs 72, 72 and 74 of her affidavit she said the following: "72. At around the same time I was working at Westpac and only just making ends meet. Trevor convinced me not to proceed with instructing a solicitor due to the legal fees which would be incurred. In this regard I recall Trevor saying with the words to the effect of: Trevor: ' There's no need to involve solicitors. We can work this out ourselves. The solicitors will take all the money and we won't be left with anything.' I then discussed my solicitor's advice regarding a property settlement with Trevor. Trevor said words to me to the effect of:- Trevor: ' The home is yours and Jennifer's, we don't need to see any more solicitors to sort that out.' 73. I accepted Trevor's promises, and did not approach a solicitor for any further legal advice. 74. I was also experiencing financial difficulties at that time and could not afford to pay any further legal expenses in relation to a property settlement between Trevor and myself."

57 The defendant's version of events is quite different and appears at paragraph 79 in his affidavit in these terms: "In or about 1986 or 1987 I had a conversation with Christine wherein I said to her, 'I have no objection to you and Jennifer remaining living in the house. I am paying child support for Jennifer as well as other payments. I am also paying for the rates and insurance for the property. I will have to find alternate premises and I am prepared to do all this so as to ensure that Jennifer has a roof over her head until she finishes her studies. Once she finishes her studies I want you to leave the property.' Christine replied, 'That seems fair enough.' I said to her, 'I expect you will keep the property clean and tidy and not let it fall into disrepair.' She said, 'OK'." 58 The plaintiff and her daughter continued living in the property. In the late 1980s the defendant used the shed at the back of the property to run his business. That gave him closer access to his child Jennifer. In 2002 Jennifer left to live in Victoria and in mid 2002 the defendant demanded that the plaintiff vacate the property. The parties then became at issue on this subject. They are both presently residing at the property but obviously living separate lives. The relationship between them is not good and the resolution of the matters, which have led to that situation, do not concern me. 59 It is obvious that over the 16 years when the plaintiff and her daughter lived in the house after separation there was still contact with the defendant. Indeed, in 1994, they all went away together for a holiday at Fraser Island. At that time the defendant suggested they invest some of his money in shares and this was arranged by the plaintiff. What has happened to those shares does not appear on the evidence but what little money the plaintiff contributed she received back. 60 In this matter there are clear issues of credit that have to be resolved. When giving her evidence I found the plaintiff to be straightforward. There were some areas of her affidavit evidence where she did not fully disclose the contributions by the defendant but these were not matters of substance and I do not regard them as affecting her credit. On the other hand, when the defendant was cross-examined, he consistently retreated into a lack of memory when questions were asked that might have been against his interest. In addition he was evasive and prevaricated over minor issues, which arose concerning the date on which he left the relationship. This arose because he had conceded in his affidavit evidence and his defence that the parties had separated in September 1986 when he had left Mount Colah. He was taxed with the fact that in June of that year he had purchased land jointly with the lady who later became his next de facto partner. In order to avoid that embarrassment he sought to express doubts about when it was he had left the Mount Colah property. 61 Although I accept that the defendant is elderly I generally preferred the plaintiff's evidence to that of the defendant in cross-examination. In these circumstances I accept the plaintiff's version of what happened at the time of separation. 62 The plaintiff's version has an air of probability about it. If matters were left on an open basis it postponed the need to do anything about a property settlement. The defendant's version would have made it perfectly plain to the plaintiff that she was not going to have the house and ultimately she would have nothing out of the relationship other than a home until Jennifer reached 18 years. It also seems strange that the defendant did not raise the matter once Jennifer finished her schooling. If the plaintiff's version was correct there was no need for her to raise the question of when Jennifer finished school and she did not do so. 63 In the circumstances I think there is an appropriate explanation. 64 The next matter that has to be considered is hardship and on the defendant's case there are questions of his medical condition and his ability to fund his retirement. It will be necessary to give a full consideration of the hardship to the plaintiff, which is any likely order that she might not receive if time were not extended. 65 The first matter which the defendant advanced in respect of hardship is the fact that he was relying upon receiving the Mount Colah property in order to fund his retirement. He suggested that had he known that the plaintiff would not honour the agreement he would immediately have started proceedings to resolve the parties' property interests after the separation and would have ensured that he continued to work hard to fund his retirement. Having regard to the conclusions that I have reached on the disputed conversations I do not accept that this is what happened. 66 The defendant asserts that he suffers from arthritis and a degeneration of the vertebrae of the neck. As a result he had to give up his teaching position where he worked three evenings a week at a TAFE College. Current reports suggest that as at August 2004 he suffers from cervical spondylitis. He has a number of degenerative changes in his lower back but as at August 2004 he was pain free from most problems. 67 No doubt the defendant is now suffering from aging problems and troubles with his spine from time to time. These make it difficult for him to carry on his business and teach. 68 I now turn to consider the question of financial and non-financial contributions. As I have already pointed out it was the defendant who had the funds at the commencement of the relationship and it was these funds that allowed the parties to move to Mittagong and then back to Hornsby and Mount Colah. The plaintiff made no contribution to these funds. 69 The purchase of the Mittagong property occurred because the defendant wanted a change of lifestyle. Both parties were obviously committed to the venture. The plaintiff gives evidence of feeding the chooks and animals, collecting firewood, cleaning up camping sites, attending to secretarial duties and arranging other matters concerned with the sheep and cattle, a few of which were kept on the property. It seems that it was the defendant who did the majority of work in relation to the camping business. He carried out most of the hard work such as preparing the areas, cutting wood and providing water for the campers. He did most of the liaising with the campers. He also did the majority of the work with the sheep. It has to be remembered that it was the plaintiff who was also primarily responsible for looking after the child Jennifer while the defendant was still having to work long hours in his job. In my view both parties contributed in a substantial way to the increase in value of the Mittagong property. 70 The plaintiff made the majority of the parenting contributions. These contributions were not only during the relationship but also after termination of the relationship. In Foster v Evans (1997) DFC 95-193 Bryson J (as he then was) at 77,68 said the following: "In my respectful view para 20(1)(b) does not contain within its own terms a limitation to the period during which there was a de facto relationship as the period during which any contributions to the welfare of a family might have been made. 'Family' is a word of very wide meaning and connotes many kinds of connections among persons, and many of these connections are irrespective of whether they form one household. It is inherently unlikely but it is not impossible that contributions of kinds referred to in paras (a) and (b) might be made to the property financial resources or welfare of another de facto partner after the relationship ended: people sometimes care for former partners. The possibility of a contribution to the welfare of a family including a child of the partners after the de facto relationship itself has ended can be clearly seen. I do not see what purpose would be served by limiting the contributions to family welfare which may be considered so as to exclude contributions made after a separation. There is to my reading no expression in subs 20(1) of an intention to limit the time at which contributions are to be made. Subsection 20(1) is unlike ss 15 and 17 in that subs 20(1) does not expressly direct attention to the period the parties have lived together. In my opinion a family there referred to could be a group of persons who do not live in the same household. Roy v. Sturgeon was not a case where the partners and their children formed a family; their children (of other relationships) seem to have been no more than visitors to their household; see DFC p 75,365-75,366; NSWLR p 460. Counsel also referred to Lipman v. Lipman (1989) DFC ¶95-068; (1989) 13 Fam.LR 1 at 24, in which I find no assistance. I respectfully differ from Powell J's obiter dictum about the meaning of para 20(1)(b). In my opinion it is not required that a contribution under para 20(1)(b) be made during the relationship. In my opinion the plaintiff, the defendant and T constitute a family within the meaning of para (b) even though there has not been any time during which those three persons have lived together in one household." 71 In Nguyen v Scheiff (2002) 29 Fam LR 177 at 182, paras 104 to 109 inclusive Campbell J expressly approved this statement. See also Jones v Grech (2001) 27 Fam LR 711.

72 Having regard to the fact that there has been no determination of what is an appropriate recognition of the work already performed by the plaintiff, and for the reasons expressed by Bryson J, I think it is appropriate to take these contributions after separation into account. The contribution that the plaintiff has made in both periods by her efforts in looking after the child Jennifer which must be recognised in a substantial and not a token way. See Black v Black (1991) 15 Fam LR 109 at 117. 73 Naturally enough it is also necessary to take into account the other benefits the parties received post separation. After separation the defendant was responsible for the payment of Council rates, water rates and house insurance (except for contents insurance) on the property. He also carried out repairs to the property from time to time. Since 1992 the defendant contributed towards 20% of the electricity bills and at times the plaintiff contributed some small amounts of household items to the benefit of the defendant. 74 There was a submission on the part of the defendant that the plaintiff had the sole benefit of the Mount Colah premises until mid 2002 when the defendant moved into the room vacated by the daughter Jennifer. The evidence before me shows that the rental value of the property to this date was $194,300.00. There are number of things that can be said about that submission. On a factual basis it should be noted that the defendant had occupation of part of the premises, being a shed since 1992. 75 The other matter to be noted is that the home was used as a home not just for the plaintiff but the parties' daughter, Jennifer. In providing a home for Jennifer, the defendant was in part fulfilling his responsibilities towards her maintenance. He was already contributing $40.00 per week but that would hardly cover more than her food and minor items of clothing. Although his legal responsibilities probably did not include the provision of accommodation, he accepted a moral obligation to provide accommodation for her and this was for his benefit as it gave him access to Jennifer. The plaintiff has received some benefit for herself personally as a result of her occupation of the property. It is difficult to quantify it in any accurate way by reference to the total rent to which I have referred. This is for the reasons that I have already expressed. Having regard to these reasons I would have thought that the benefit to her was in the area of about $40,000.00. 76 Normally one has regard to the value of the parties' property as at the date of hearing. It was submitted that I should have regard to the value of the property at the date of separation. It would then be necessary to add an interest component for the period since the date of separation and balance against this the benefits received by the plaintiff. 77 Part of the increase in value of the property, which was held at the date of separation, was a result of the joint endeavours on the Mittagong property. Part of course related to the provision of capital by the defendant. There also has to be taken into account in a substantial way parenting contributions from the birth of the child Jennifer in 1978 up until she turned 18 in 1996 and to a lesser extent while she remained at home until she left in 2002. 78 I will have regard to the present value of the property because that reflects the financial and non-financial contributions to that asset. The defendant has had the benefit of the $70,000.00, which he retained after the parties separation and this fact should be taken into account. 79 Having regard to the evidence in the case some of which is referred to above and those factors which I have identified in this judgment I have come to the conclusion that an appropriate order for adjustment of the parties interests would be a sale of the property with the plaintiff receiving 40 percent of the net proceeds. The parties should otherwise retain their other property. 80 In these circumstances it is necessary to consider the effect of the hardship on the plaintiff if she did not receive this award compared to the hardship on the defendant. I have identified the hardship which the defendant suffers that is related to his present assets situation and the ability to provide for his retirement. In my view the hardship, which would be suffered by the plaintiff if an order extending the time for making the application were not made, is greater than the hardship suffered by the defendant. In these circumstances I propose to extend time. 81 The orders I make are as follows: 1. I give leave to the plaintiff to make the application she has made to this court in these proceedings 2. I order the property at 27 Yirra Road, Mount Colah be sold and that the proceeds of sale, after the expenses of sale, be divided between the plaintiff as to 40 percent and the defendant 60 percent. 3. Each party is to retain the property in their possession 4. I give liberty to apply. 82 I will hear the parties on costs. **********

Last Modified: 12/10/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

(1992) 15 Fam LR 686

(2002) 29 Fam LR 177

(2001) 27 Fam LR 711

(1991) 15 Fam LR 109

At a glance

Court

Decision date

Before

Source

Judgment (34 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (4)

Cited By (1)