DELANY v BURGESS

Court of Appeal (NSW)|2008-05-16|Before: Mason P, Beazley JA, Hammerschlag J

Appeal Outcome: Special leave refused with costs by the High Court - 16 May 2008

CITATION: DELANY v BURGESS [2007] NSWCA 360

JUDGMENT OF: Mason P at 1; Beazley JA at 105; Hammerschlag J at 111

LEGISLATION CITED: Property (Relationships) Act 1984

Bilous v Mudaliar [2006] NSWCA 38; (2006) 65 NSWLR 615 Delany v Burgess [2006] NSWSC 1420 Evans v Marmont (1997) 42 NSWLR 70 CASES CITED: Howland v Ellis [2001] NSWCA 456; (2001) 28 Fam LR 656 Kardos v Sarbutt [2006] NSWCA 11; (2006) 34 Fam LR 550 Manns v Kennedy [2007] NSWCA 217 Sullman v Sullman [2002] NSWSC 169; (2002) DFC 95-248 Thomson v Badger (1989) 13 Fam LR 559

PARTIES: Leanne DELANY Stephen John BURGESS

COUNSEL: R Colquhoun - Appellant P Campton - Respondent

SOLICITORS: Fitzpatrick Solicitors Pty Ltd - Appellant Browns the Family Lawyers - Respondent

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT JUDICIAL OFFICER: McLaughlin AsJ

LOWER COURT DATE OF DECISION: 19 December 2006

LOWER COURT MEDIUM NEUTRAL CITATION: [2006] NSWSC 1420

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40830/2006 SC 5716/2004

MASON P BEAZLEY JA HAMMERSCHLAG J

13 December 2007 Leanne DELANY v Stephen John BURGESS JUDGMENT

1 MASON P: The appellant claims a property adjustment pursuant to s20 of the Property (Relationships) Act 1984 (the Act). The proceedings were dismissed by McLaughlin AsJ on several grounds including that there was no de facto relationship between the parties (Delany v Burgess [2006] NSWSC 1420). His Honour characterised the relationship as being of an "essentially business nature". 2 The parties met in about September 1995 and commenced a sexual relationship later that year. After interrupted periods of cohabitation they broke up finally in early 2004. These proceedings were commenced in October 2004. 3 The appellant was born in 1955. She had separated from her husband in 1994 at a time when their two sons were in their early twenties. 4 The respondent was born in 1959. He had separated from his wife in 1993. They had two daughters born in 1987 and 1990. The property settlement associated with their divorce included the transfer to the respondent of a jointly owned property at Picnic Point (hereafter "the property"). This had been the respondent's home since 1985 and continues to be his home. 5 There were three periods during which the appellant resided at the property, although the parties disagree slightly about the dates. They also disagree significantly about the characterisation of their relationship and about whether (if it was a de facto relationship) it was severed in either or both of two intervals when the parties stopped living under the one roof. The first period of cohabitation was between early 1996 and about February 1998 (approximately 24 months). The second period of shared residence was between August 1998 (according to the appellant) / January 1999 (according to the respondent) and August 2000 (19-24 months). The third period of the appellant's residence at the property was between May 2001 and August 2002 (15 months). 6 The appellant's case is that the de facto relationship extended beyond the periods of shared residence at the property. Her claim is pressed in several permutations, but in its broadest ambit asserts that the de facto relationship extended from early 1996 to early 2004. 7 The respondent's case is that there was never a de facto relationship. Alternatively, its duration was less than asserted by the appellant. The respondent also contends that the separate periods of cohabitation need to be addressed separately, with the consequences that some involved less than two years of living together in any de facto relationship and others ceased more than two years before the commencement of proceedings. If necessary, the appellant invokes ss17(2) and 18(2) of the Act to overcome the relevant statutory bars. 8 The primary judge made strongly adverse findings about the credibility of each party. He placed little reliance upon their testimony. There are portions of the judgment that recite apparently unchallenged evidence without clearly indicating that it was accepted. I generally infer that it was. 9 The property is a timber-frame house with aluminium cladding that has a habitable area of about 115m³. It has four bedrooms. It was valued at $275,000 as at early 1996. Its agreed value at the date of trial (July 2006) was $450,000. 10 The property has at all material times been subject to a mortgage for which the respondent was responsible. In January 2001 the loan balance stood at approx $105,000. The interest rate was variable and the fortnightly payments made apparently by way of deduction from the respondent's wages had the effect of gradually reducing the loan principal. In practical terms, the wages were insufficient to meet this expense without the financial assistance of paying boarders who have resided at the property for most of the relevant time. Sometimes there was more than one boarder living at the property. The respondent agreed that the money from his boarders was used towards paying some of his mortgage (Black 93). 11 According to the respondent's evidence, apparently accepted by the judge, the financial arrangements with each boarder in the period 1996 - 2002 were generally that a boarder paid $85 or $90 a week for accommodation, as well as a share of the electricity and telephone expenses, and an agreed amount towards groceries (usually about $25). 12 When the appellant lived at the property, she paid board generally in accordance with these arrangements. Like an ordinary boarder she had a bedroom of her own to keep her belongings. However, during these periods of residence she slept with the respondent in his bedroom and shared other aspects of his domestic life. It is her case that there was a sufficient commingling of affairs, mutual support and reputation of shared relationship to establish the statutory criterion of living together as a couple (s4(1)(a)), at least during the periods when she lived at the property. 13 The respondent's case, accepted by the primary judge, was that the bond never became a de facto relationship. Indeed, McLaughlin AsJ went further in characterising it as essentially no more than a convenient commercial arrangement (J55). For reasons explained below, I do not accept this characterisation. There was a de facto relationship for at least some of the period covered by in the appellant's claim. Of course, more needs to be established for a successful claim for adjustment of property interests under s20 of the Act.

The de facto relationship(s) 14 As indicated, the sexual relationship commenced in late 1995. At that stage the appellant lived nearby, but she used to stay with the respondent at the property from one to four nights a week. She would return to her home in the morning to get ready for work. She stayed with the respondent every second weekend, being the weekends when he was not away with his children camping. There is significance in the fact that this close personal relationship preceded the time when the appellant first became a paying "boarder" at the property. 15 The appellant moved into residence in February or March 1996. Obviously there were discussions about financial arrangements and the extent to which the respondent needed to continue to rely upon paid boarders. The learned Judge recounts the competing versions but regrettably makes no findings about what was in truth discussed. 16 What is apparently common ground is that there were two boarders in the property in late 1995, the appellant's son Peter Amiet and a man named Michael Garner. It was after Peter Amiet moved out in about November 1995 that, according to the appellant, she arranged to move into the property. The other boarder moved out in about mid-February 1996. Since, however, the respondent continued to have difficulties making ends meet, another boarder took up residence between March and about October 1996. There were no (outside) boarders from October 1996 to August 1997. 17 As I read the findings, the appellant's financial contribution to the household during her periods of occupancy was similar to that of any other boarder. Indeed, her version of the discussion preceding her first moving in was that the respondent said: "If you moved in I would not have to get another boarder because you can share the expenses. You can pay $90 per week plus phone, electricity and expenses". This reality of the financial arrangements is the primary basis for the respondent's arguments that the relationship was commercial and that, even if it were not, the appellant made no financial contribution making it just and equitable for an adjustment to be ordered. 18 The matters relied upon to establish or rebut a de facto relationship, at least during the periods of shared residence at the property, can be summarised as follows:

(a) Shared lives 19 The couple shared sexual intimacy, the appellant slept in the respondent's bedroom when she lived at the property, and there was no secret about them being a generally supportive and affectionate couple. The appellant became pregnant to the respondent at one time, but the couple decided that the appellant should have an abortion. The appellant retained a bundle of affectionate cards from the respondent including ones address to his "friend, lover, wife" and "soul mate". 20 The respondent attempted unsuccessfully to persuade the primary judge that his professions of love for the appellant were always false. This attempt to re-write history undermined his credibility as a witness of truth. Clearly, there were bumps in the relationship, including the significant break that occurred for several months in 1998 (see below), but there was undoubtedly a good deal of mutual affection and support. 21 The relationship was further manifested by sharing of meals, joint visits to friends, attendance at family occasions, holidays together, lengthy telephone conversations during the period of absence at Port Macquarie (see below) and the appellant's assistance with the care of the respondent's teenage daughters. 22 The appellant said that she did most of the housework and sometimes mowed the lawns when she resided at the property. She admits that everyone shared various responsibilities, but maintains that she cleaned all of the house and cooked for everybody (Black 20). She asserts that her work around the house was greater than that of the boarders. The fact that she did most of the cooking was attested by other witnesses (Blue 97-98). 23 The Judge found that the appellant's performance of household duties was strictly in accordance with the arrangements made by the respondent with her as proprietor of the residence with the various boarders who from time to time occupied rooms there. 24 During the generally good periods of the relationship the respondent dealt with the appellant in a way significantly different from his relationship with any of the other boarders. This includes the period when the appellant lived in Port Macquarie (see below). 25 The respondent's sworn assertion made in the 2001 custody proceedings that the appellant was his "defacto" and his "partner" and that she was proposing to assist him in the care of his children (see below) is a very significant pointer to the true nature of the relationship during the period when the appellant lived at the property, especially the latter period.

(b) Financial dealings 26 There was relatively little commingling of financial affairs. The appellant agreed In cross-examination that the couple kept separate financial identities (Black 23). 27 The appellant purchased bedroom furniture including a bed during the early period of the relationship. 28 The parties never discussed a change to the respondent's sole ownership of the property or his sole responsibility for the outstanding mortgage. The appellant believed (correctly) that the respondent's income from his "boarders" and herself assisted him to pay the outstanding mortgage. 29 Bank accounts were kept separate. The respondent arranged for the appellant to have an account in her name with his staff credit union. She needed to be an immediate family member of his family for this to occur. 30 Separate health insurance arrangements were maintained. 31 As indicated, the appellant's contribution to "board" was virtually indistinguishable from that of an ordinary "boarder". Each party kept his or her own wages, which were not high in any event. The respondent was in steady employment with Qantas throughout. The appellant had periods of unemployment, including times when she was on social services. She got steady employment as an office clerk in April 2002. Her pay went into the Qantas Credit Union Account which the respondent had opened for her and controlled on her behalf. 32 The appellant had a gambling addiction. This alone impeded her in making any significant financial contribution. There is an unresolved dispute as to whether it also left her unable at times to pay her full "board" and expenses during her periods of living at the property. She allowed the respondent to take control of her account with the credit union in an attempt to stem the impact of the problem. This conduct is some pointer to the mutual support given and received and the level of trust that existed during the better times of this relationship. 33 In April 2002 the appellant surrendered her superannuation policies and deposited about $10,500 into her bank account. The money was spent by the end of May, much if not all of it in gambling (Black 27-8). There is no evidence that it was spent for the respondent's benefit or in relation to the property. 34 As a Qantas employee the respondent was able to obtain reduced airfares for the appellant as his listed flying companion. 35 If the respondent's car was off the road he sometimes borrowed the appellant's car.

(c) The appellant's relationship with the respondent's daughters 36 I do not detect any homemaker claim referable to the period before late 2001 when the respondent's daughters came to live with the couple. The appellant obviously interacted with the daughters prior to this time, but one is left with the impression that her involvement with them was not substantial in this early period. It reflected the fact that these were the daughters of the man whom the appellant loved deeply, as distinct from the assumption of any role as a carer of the girls. I have not overlooked the evidence that there were weekends during the Port Macquarie era (in 2000) when the appellant came to Sydney and assisted with the care of the respondent's daughters when he was doing night shift work. But there is such absence of detail that I am unable to conclude that this assistance went beyond evidencing the closeness of the relationship between the adults during the happier times. It was part of the give and take of a relationship in which the respondent did a fair deal for the appellant's welfare as well, including assistance with the consequences of her gambling addiction. 37 The respondent's daughters lived with their mother until 2001, except for alternate weekends and in the school holidays when they spent time with the respondent. In 2001 the respondent obtained custody of the girls who were then aged 14 and 11. They came to reside at the property in August 2001 and thus lived under the same roof as the couple for what I conclude were the last 12 months of their de facto relationship (see below). 38 Aspects of the appellant's relationship with the daughters during this period after this date assume significance both with respect to her application to overcome the statutory bars and as boosting so much of her substantive case as relates to home-maker activities. 39 The respondent swore an affidavit (Blue 266-275) in support of his application for custody in the Local Court. In it he made assertions that are highly material to the issues in the present case. In the extracts set out below the respondent's handwritten (and verified) statements are set out in italics. 15 Housing - (a) Present arrangements - include details of each child's address, who lives with them and describe the accommodation. The children reside in a 4 bedroom home with all the normal facilities. The applicant's defacto Sue Delany resides in the home. The applicant's defacto's sister Sandra Abbott-Delany resides in the home 5 days per week (Mon-Fri) …

16 Supervision - (a) Present arrangements The applicant father and his partner, Sue Delany, will supervise the children outside of school hours. …. 25 Do any of the adults who have or may have responsibility for the care of the children have any health factors that might affect their ability to provide such care? Stephen/applicant/father is in good health. Sue Delany is in good health. ("Sue" is the appellant's usual first name.) 40 The appellant said that she made school lunches for the girls four days per week, she washed and ironed their clothes, washed their sheets and made their beds (Blue 51). The Judge appears to have accepted this evidence (J62). 41 According to the appellant, she assisted with driving one of the girls to and from the station for some months in late 2001. This task led her to quit her then job, a matter that led to controversy given that she ceased for a time to be able to contribute financially. She went back to work in April 2002, obtaining a job that earned about $40,000 gross per annum. 42 The parties ceased cohabiting in August 2002 (see below). It follows that the maximum period in which the respondent's daughters lived continuously under the same roof as the appellant was 12 months. The appellant's contributions during this period to the welfare of the respondent (both in his own right and as father) and towards his children represents the strongest aspect of her claim to relief under the Act. A de facto relationship was established, at least for the periods of cohabitation 43 The applicable principles are summarised by Powell J in Roy v Sturgeon (1986) 11 NSWLR 454 at 458-9. 44 In my view, the facts summarised show that the parties were a de facto couple at least during the periods in which the appellant resided in the property. The relationship was not a purely commercial one, as found by the primary Judge. Nor was it a merely casual sexual liaison without the requisite elements of mutual commitment. 45 There was a substantial sharing of the two lives especially at the emotional and mutually supportive levels. 46 The appellant's financial contribution may have differed little from that of a mere "boarder". As will appear, this is significant with respect to her claim that it is just and equitable to make a financial adjustment with respect to the property in her favour. But, as regards establishing a de facto relationship, there was substantially more than a pure "boarder" situation. Taken together with the other matters, it was sufficient to satisfy the statutory criteria for a de facto relationship.

The periods of separation 47 As indicated, there were two occasions during the relationship when the appellant ceased to reside at the property. She left the respondent in circumstances that, according to the latter, terminated any de facto relationship that then existed. 48 The question whether a temporary separation betokens a cessation of a de facto relationship was considered by Stein JA (with whom Meagher JA and Ipp AJA agreed) in Howland v Ellis [2001] NSWCA 456; (2001) 28 Fam LR 656. His Honour said at [19] that: …. [M]ore than a mere physical separation is required for a de facto relationship to come to an end. The physical separation of the parties must be accompanied by an intention on the part of either partner to permanently end the relationship. 49 Thus, once a de facto relationship has commenced, it would take more than the physical separation of the parties to bring it to an end. See also Thomson v Badger (1989) 13 Fam LR 559 (Young J); Sullman v Sullman [2002] NSWSC 169, (2002) DFC ¶95-248 (Campbell J). 50 In February 1998 there was an argument in which the respondent told the appellant that he wanted to end the relationship. According to the appellant she was devastated and did not speak to him again until June 1998. She went to live with her sister in March. She said in evidence that the relationship broke down in February (Black 14). 51 There is a letter of February 1998 (Blue 140) in which the appellant pours out her distress about having been told "to get up get out" and about things said and done in the recent past. She accused the respondent of not caring for her, while professing her continuing love for him. 52 The letter effectively acknowledged the apparent termination of the relationship albeit in a context in which the appellant was at pains to justify her actions. She expressed the belief that "even though time will heal there will always be a special place in my heart for you and memories that will never go away". The letter was written in the hope that "it will help me realise that it's over". The appellant offered advice to the respondent about things he should do for his girls and to maintain his own health. The letter concluded: LOVE YOU ALWAYS GOODBYE. 53 Based on this material McLaughlin AsJ found that the first period of the asserted relationship was a separate one, with the consequence that it came to an end more than two years before the institution of the proceedings. I agree with this conclusion, albeit that I do not share his Honour's view that the relationship was never that of a de facto couple. 54 His Honour concluded that the appellant was therefore out of time for bringing a claim (s18(1) of the Act). He also held that no application had been made for extension of time pursuant to s18(2). In so doing, he overlooked prayer 7 of the Statement of Claim. It will therefore be necessary to address the appellant's extension application later in these reasons. 55 In June 1998 the appellant phoned the respondent "because I still loved him and missed being with him". It is common ground that the parties resumed their sexual relationship shortly thereafter, visiting each other at their then respective homes. 56 In August 1998 (according to the appellant) or January 1999 (according to the respondent) the appellant moved back to the property. The appellant says, but the respondent denies, that it had been agreed that the boarders then in the place would move out. The boarders did not move out straight away. 57 When the appellant returned to the property she resumed paying $90 per week plus expenses. Once again there is controversy as to whether this showed that she was more than a mere "boarder". 58 The other boarders eventually moved out just before Christmas 1998. The appellant says that she "resumed paying half household expenses again". On her evidence the share consisted of $120 towards the mortgage, $60 to pay off the respondent's Visa account and $30 contribution to groceries. The contribution increased during a period when the appellant's sister came to board with the couple. 59 The respondent disputes this, in part. He agrees that the appellant "continued to pay $90 per week board". He states that the appellant reimbursed him for expenses, but these were with respect to expenses he incurred on her behalf, just as other boarders did. He agrees that she contributed $25 per week towards groceries, but this too was similar to arrangements with the other boarders when they lived at the property. 60 There is a document dated 17 June 2000 in which the appellant gives two weeks formal notice of her intention to move out (Blue 144). This was done at the request of the respondent, but there is now dispute as to whether this betokened the respondent's domination over the appellant or the purely commercial nature of the relationship. In any event, the appellant did not move out until she relocated to Port Macquarie in August 2000. This occurred when she was offered a job there, and at short notice (Black 16-17). She was there until May 2001. The respondent agrees that the appellant asked him to consider moving to Port Macquarie. 61 The respondent says that this move to Port Macquarie amounted to cessation of whatever relationship then existed. This submission is unconvincing, especially in light of respondent's own version of the separation which was in the following terms: The plaintiff came to stay with me from time to time - approximately once every 3 weeks on average. I would fly up to Port Macquarie on rare occasions. I paid for her flight on each occasion. The plaintiff would on rare occasions be with the girls on weekends when I was working afternoon shifts. On many occasions Ashley, who was then 13, would look after Megan. The plaintiff and I would not always have sexual relations on these weekends.

62 The appellant's evidence was that, during her time in Port Macquarie, she returned to the property nearly every weekend. The respondent paid for the flights. There were times when the appellant cared for the respondent's daughters on weekends when he was unable to look after them due to shift work. During the 2000 Christmas period the respondent and his daughters stayed with the appellant in her Port Macquarie unit. Nothing was paid by the appellant to the respondent during the Port Macquarie era. 63 Telephone records also attest to the fact that there were lengthy and frequent phone conversations between the couple during this period. 64 According to the appellant, the relationship was not broken by this relatively short period of physical separation. Indeed, the contact that continued between the parties despite the separation shows that the appellant was always significantly more than a "boarder" even when she lived at the property. I agree. 65 The Port Macquarie job did not work out as the appellant expected. In May 2001 she moved back to the property. At that time the only boarder was her sister. She resumed paying at least $90 per week plus a $25 contribution for food, a little more on her version of the evidence. 66 In my view, the Port Macquarie interlude did not represent a break in the parties' relationship. The appellant's decision to try out a job in Port Macquarie was discussed with the respondent. Close personal contact continued during the relatively short period the appellant was away. The appellant returned immediately back to the property when the job did not work out. 67 The appellant moved out of the property finally in August 2002 in consequence of increasing disharmony between the couple because of the tension between the appellant and the respondent's two daughters. The appellant took away her belongings. 68 There was no contact between the parties for about two months apart from one telephone call concerning a video recorder. In my view, this separation represented the end of the de facto relationship. 69 In October 2002 the appellant resumed her (presumably sexual) relationship with the respondent, staying with him two to five nights per week. She otherwise lived with her son and kept her belongings at his place. I am not persuaded that this entailed a resumption of the de facto relationship. 70 Matters came to a final end in January 2004. The parties and the two girls went away together on a fortnight holiday. There were arguments involving the appellant and one of the daughters. The day after returning from the holidays the respondent told the appellant to get out of his house and that was the end of the relationship. 71 I have therefore concluded that the parties lived together in a de facto relationship for about 24 months between early 1996 and early 1998 and for a little over four years between late 1998 and August 2002.

Should an order be made pursuant to s18 with reference to the earlier period of the relationship? 72 Because I disagree with the Judge's characterisation of the relationship it falls to exercise the s20 jurisdiction without being controlled by his Honour's conclusion in that regard. 73 The Judge's finding, with which I agree, that any prior relationship ceased in February 1998 means that a claim arising out of the earlier period is prima facie barred by the operation of s18. To overcome s18's two year limit referable to this first period, it would be necessary for the Court to be satisfied that greater hardship would be caused to the appellant if leave were not granted than would be caused to the respondent if it were granted. 74 Contrary to the understanding of the primary judge the appellant did seek the requisite leave in her originating process. It is therefore necessary that this Court consider whether a proper case has been established to satisfy it that the barrier of s18 has been passed with regard to de facto relationship that ended in February 1998. 75 I am not thus satisfied. The reasons for this conclusion will become apparent when I address the claim referable to the second period of de facto relationship that, on my findings, came to an end in August 2002. Suffice it for the present to say that the absence of substantial homemaker contributions during the 1996-98 period leaves the situation as one based upon the appellant's financial contributions. Those financial contributions, standing alone, were not sufficient to make it just and equitable for a property adjustment order to be made. In particular, the appellant's contributions did not exceed in value the rights of residence that she obtained in return. Nor was anything said or done on the respondent's part to generate an expectation by the appellant that she might be contributing towards a share in the property.

Should orders be made under ss18 and 20 with reference to the later period of the relationship? 76 It is unclear whether the second relationship commenced in August 1998 or January 1999, but I shall assume in the appellant's favour that it was the longer period. The claim thus comes to be addressed on the basis that a relationship of four years duration ended in August 2002. This leaves the claim as one brought two months outside the two year time limit prescribed by s18. 77 Section 20(1) of the Act empowers the Court to:- 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. 78 Evans v Marmont (1997) 42 NSWLR 70 established that the Court is concerned with what is just and equitable having regard only to the respective contributions of the parties of the type referred to in s20 see also Kardos v Sarbutt [2006] NSWCA 11; (2006) 34 Fam LR 550 at [38]). 79 There is detailed discussion of the processes involved in the exercise of the discretionary power conferred by s20 in Bilous v Mudaliar [2006] NSWCA 38; (2006) 65 NSWLR 615; Kardos; and in Manns v Kennedy [2007] NSWCA 217. 80 In Kardos, Brereton J (with whom Basten JA and Hunt AJA agreed) said (at [31]): Although usually the preferable approach is to value property as at the date of trial, giving where appropriate separate and special consideration to contributions to value made between separation and trial, nonetheless the ultimate task of evaluating the respective contributions of the parties may sometimes be facilitated by adopting the date of separation for identifying and valuing the property, particularly when there have not been ongoing contributions by one party which have benefited the other since separation….

81 The parties' submissions said little about the applicable principles. In these circumstances, it would be inappropriate to essay a further survey or to address the tensions that possibly exist in the details of the recent case law in this Court. 82 It is sufficient for present purposes to record that the Court is required to make a holistic value judgment in the exercise of a discretionary power of a very general kind (Kardos at [36]). But before this final step is carried out, the Court needs to identify and (so far as possible) value the contributions that have been taken into account and to identify and (so far as possible) value the property concerning which it is open to the Court to make an adjustment (Manns at [64]). 83 In the present case I perceive the critical issue to be whether the appellant's contributions, financial or otherwise, were of such a level as to make it just and equitable for an adjustment order to be made. There is also the additional question of lifting the two year limitation bar. 84 The appellant's case barely grappled with the application of the principles to the facts of the case. At first instance, her counsel's written submissions rose no higher than pointing to the property increase in value between 1995 and 2006 and concluding (Black 106): 16. The Plaintiff's claim is a claim of a personal right and in all the circumstances, taking into account contributions of a financial kind, which at times included half the household and mortgage expenses, direct drawings by the Defendant from the Plaintiff's money, petrol and the indirect contribution of significant domestic duties including looking after Ashley and Megan, it is submitted it would be appropriate for an order to be made in her favour and it is submitted that the Court would consider an order for a payment to her of a sum in the vicinity of $100,000.00 to $125,000.00 plus costs. 85 The written and oral submissions on appeal provided a comparable level of assistance to this Court. We were reminded of the terms of s20 and of the valuation evidence regarding the increase in the property's value between 1995 and 2006. Beyond this, the submission rose no higher than the conclusory assertion that (Orange 16): The Appellant made a significant contribution as homemaker as briefly outlined above and as set out in the evidence. 86 The generality of the submissions reflected and stemmed from the generality of the appellant's evidence on the critical matters. 87 The Summons does not seek an order declaring any interest in the property beyond the effective charging of any monetary award upon the property (Red 4). The appellant's counsel indicated that, in practical terms, the property is the only asset over which there is a claim. Its value at the date of trial was $450,000 but it remained subject to a substantial mortgage. 88 It is to me of considerable significance that the property has been the long-time home of the respondent: it was not purchased in the course of the relationship. This said, the Court must not overlook the need to consider contributions to the "acquisition, conservation or improvement" of property. Assistance in the form of monetary contribution towards the burden of an existing mortgage is capable of falling within this test. 89 Section 20(1)(a) also contemplates an order based on what is just and equitable having regard to contributions to the "financial resources of the parties or either of them". 90 There was in the present case nothing to show that the appellant was financially worse off because of the contributions. Nor was it shown that the respondent was financially better off because of the appellant's contributions by way of "board". The appellant's "board" and expenses were not shown to exceed the value of the accommodation rights she acquired in return. And it was not shown that an alternative "boarder" would not have presented him or herself if the appellant had not been in residence. 91 In December 2001 the appellant became a bankrupt on her own petition. It would appear that her gambling difficulties were the main cause of this state of affairs. She was discharged from bankruptcy about three years later. In her Statement of Affairs dated 18 December 2001 she declared that she had no spouse or partner. Her answer to a question about assets she had contributed to or helped purchase nominated only a motor vehicle and some household appliances. There was no reference to the subject property. 92 The appellant had no significant assets as at the hearing apart from a small ($8000) interest in a private superannuation fund not controlled by her. 93 In an affidavit sworn on 15 June 2005 the respondent gave his current financial position as follows: Asset Value 863 Henry Lawson Drive Picnic Point E$485,000.00 Mitsubishi Challenger 4WD vehicle E$ 25,000.00 Furniture and personal effects Minimal 1888 Qantas shares (these were issued to me as part of the QANTAS employees bonus profit sharing scheme. Further shares had n [sic] been issued on this basis since 1996) NK Superannuation with Qantas Fund. In addition to the employers contribution I made contribution to the fund E$ 90,000.00 Boat $ 900.00 Gross assets $600,900.00 Liabilities Mortgage to Aussie Home Loans (I have borrowed to purchase the Challenger car as set out above) $132,000.00 Line of credit (Qantas Credit Union) (limit $11,000.00) $ 6,400.00 Credit card Visa (limit ($17,000.00) $ 7,336.00 Total Liabilities $145,735.00 Net Assets $455,165.00

94 The respondent was made redundant at Qantas in April 2006. It would appear that his superannuation benefit is still unable to be accessed. He is still aged under 50. 95 In the periods when the appellant lived at the property she did cleaning and cooking, but so too did the respondent and the other "boarders". According to the appellant's sister, "As a general consensus household duties were shared in the house" (Black 48). The appellant claimed that she did more than the others and more than the respondent, but this was disputed and there are no findings favourable to the appellant in this regard except for those summarised at [40] above. As indicated, the Judge generally concluded that the housework and other activities performed by the appellant was always in accordance with the specific arrangements made between the parties and in line with the work done by any other boarder (J58, 61). The conclusion strikes me as somewhat improbable, but I find myself unable to be satisfied to the requisite degree that it should be rejected by an appellate judge who has not seen the witnesses under cross-examination. 96 The appellant's financial contributions on behalf of "board" and other expenses, and her assistance around the home were therefore no different in effect than that of the outside "boarders". More to the point their level has not been shown to have exceeded the benefit of the accommodation rights conferred in return. 97 This said, it is undoubtedly true that the appellant's financial contributions, like those of the other occupants, assisted the respondent in his steady progress towards unencumbered ownership of his house. However, I am unpersuaded that (standing alone) they were of such a nature or extent as to make it just and equitable that a property adjustment order should be made. No expectation to that effect was ever raised by communications between the parties, not that this is conclusive. 98 I am not persuaded that the extent or duration of the appellant's financial contributions, direct and indirect, were such as to make it just and equitable to make an order that in its terms or effect would give the appellant some interest in the property that has for many years been the respondent's home. 99 Nor do I regard the appellant's non-financial contributions in the form of cleaning and cooking as being such as to make it just and equitable for an order to be made. This is not because of any devaluing of the nature of such domestic assistance. But in the present case there is, on the Judge's findings, nothing to show that the nature or level of that assistance differed to any appreciable degree from that provided from time to time by every resident of the property, including the respondent and the outside "boarders". This was a household in which each resident adult, including the respondent, "mucked in" and did his or her share. The same can be said for financial contributions with respect to household "expenses". 100 The appellant did not give up her job in favour of managing the household or caring for the respondent's children and, as indicated, the couple did not intermingle their financial affairs. 101 During the final twelve months of the de facto relationship the appellant also contributed by assisting the respondent with the care of his teenage daughters. The respondent had obtained custody of the girls from his former wife on the basis that the appellant would help supervise the children outside school hours. His rotating shift cycle meant that he was frequently at work between 3pm and 11pm (Blue 104). The girls were aged 14 and 11 when they came to live at the property. The appellant involved herself in preparing school lunches and assisting with transporting the girls, although the details are disputed (but see Blue 105). She claims that her involvement with the girls contributed to her losing her employment between September 2001 and April 2002. 102 It is difficult to get a clear appreciation of the extent of the appellant's contribution in this regard. It did not entail around the clock assistance and it certainly does not call to be valued at the rates payable to a commercial nanny. The benefits received by the appellant for residence and other aspects of the relationship need to be factored in to the equation. 103 Ultimately I am unpersuaded that the competing hardships render it appropriate to grant leave pursuant to s18(2). I do not think that it is just and equitable that there should be any further adjustment of the property interests of the parties. There was much give and take during the relationship. Its ending did not leave the appellant in the situation of someone whose interests called for an order under the Act. 104 I would dismiss the appeal with costs. 105 BEAZLEY JA: I have had the opportunity of reading in draft the judgment of Mason P. 106 His Honour has set out the facts involved in the relationship between the parties and the law which applies to the application brought by the appellant for a property adjustment pursuant to s 20 of the Property (Relationships) Act 1984 (the Property (Relationships) Act). 107 In my opinion, the appellant's contribution as a homemaker provided by way of the care of the respondent's children was significant, especially in circumstances when the appellant was also working and otherwise 'paying her way' within the relationship, in the last period of cohabitation. Mason P refers to this evidence at [40] and [41]. I consider that that contribution was of sufficient value and importance in the relationship to make it just and equitable that there be an adjustment of the property interests of the parties in her favour. 108 I also consider that her contributions as a "boarder" and as a homemaker were such as to constitute a "contribution" for the purposes of s 20. The appellant paid a weekly amount for "board" which was the same as she paid when that was her status within the household and which was the same as paid by other boarders. Nonetheless, during the period in which she was in a de facto relationship, she was not a boarder and her contribution must, in my opinion, be seen in that light. 109 It is apparent from the evidence as a whole that the respondent was dependent upon the money received from the boarders, including the appellant, both when she was only a boarder and when her relationship was properly classified as a de facto relationship within the meaning of the Property (Relationships) Act. 110 The assessment of her contribution must be in an amount that is just and equitable in all the circumstances. That task is particularly difficult when the contribution, both financial and non-financial is indirect. However, doing the best I can, I am of the opinion that an appropriate assessment is $15,000. Accordingly, I would allow the appeal and order that there be an adjustment of property under s 20 in that amount. I would also order the respondent to pay the appellant's costs. 111 HAMMERSCHLAG J: I agree with Mason P. **********

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(2001) 28 Fam LR 656

(2006) 34 Fam LR 550

(1989) 13 Fam LR 559

At a glance

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Judgment (29 paragraphs)

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Cases Cited (12)

Cited By (8)