Determination
169As I have said in other cases, a de facto relationship, unlike a marriage, can commence and end without any legal pre-requisite or formality. Furthermore, unlike a marriage, which commences, and ends on a defined day, when a de facto relationship commences, and when it ends, can be the subject of some dispute and uncertainty. Often, it is impossible to conclude that the relationship began or ended on a specific day. (In stating the last matter, of course, I omit the circumstance of the death of one of the parties.)
170The dispute and uncertainty exists because a de facto relationship tends to develop over time. Similarly, it tends to break down over time as well. Nevertheless, in this case, the Court must determine when the de facto relationship commenced. When it ended is not in dispute.
171In this regard, I refer to what was said by Bryson AJ in Dion v Rieser [2010] NSWSC 50 at [14], that:
"[14] A de facto relationship is a continuing course of conduct and behaviour, not an event at a fixed point of time. No matter how close their involvement in each other's emotional lives, a conclusion that people are living together as a couple involves consideration of the circumstances in which they are living, including the places at which they are living. The test is not primarily locational, but it has a locational element."
172Nor is it possible to apply some mathematical formula to the activities of the parties and determine whether the relationship has commenced. There can be no doubt that a de facto relationship, like a marriage, may include periods of separation. Thus, the relationship ends when one, or both, of the parties form the intention to sever, or not to resume, the relationship and he, she, or they act on that intention.
173I note that in the Statement of Claim, the Plaintiff asserts that she commenced living with the Defendant at the end of May 2006.
174In Jones v Grech Jones (2001) 27 Fam LR 711; [2001] NSWCA 208, at [70] and [76], Ipp AJA said:
"[70] It is not uncommon for parties to a de facto relationship to terminate their relationship and, thereafter, at a later date, to re-commence living in a de facto relationship. On occasions, the same parties may live in a de facto relationship over many intermittent periods. The question therefore arises whether, for the purposes of s 20(1), each one of the intermittent periods is to be regarded as constituting a separate and different de facto relationship, or whether the aggregate of the intermittent periods is to be considered as being one de facto relationship to which the Court should have regard.
...
[76] The purpose of the Act is remedial. It is intended to remedy injustice, inter alia, because the law prior to the Act had "the effect of permitting a de facto partner to be enriched at the expense of the contributions, whether financial or non-financial, made by the other partner." For that intention to be adequately fulfilled, it is necessary, in my view, for the contributions made by a de facto partner to be assessed by reference to the entire period of the de facto relationship, irrespective of whether it is made up of a series of broken or intermittent periods or whether it is constituted by one continuous period of cohabitation."
175In Hamblin v Dahl [2010] FMCAfam 514; (2010) 239 FLR 111, Demack FM, at [63] - [65] said:
"[63] In essence, it seems to me, that if two people commence or renew a relationship, then absent something extraordinary, they are renewing or recommencing the same relationship they had earlier. It would appear to be a fiction to suggest that two earlier intimates commenced a new relationship, rather than entering a new phase of their lapsed or previous relationship. And it would seem, that within the realms of human experience, having another intimate relationship for either a short or longer time, in the midst of another relationship, is not of itself extraordinary.
[64] In this case, it should be remembered that although the parties ceased sharing a common residence in December 1999, from that time until the applicant commence her new de facto relationship with Ms M in 2006, the parties had maintained a relationship of some description. It is not a matter for this decision to clarify that relationship, but some relationship persisted during that time. In so much that it persisted, it provided an on-going link between the earlier and later periods of cohabitation that a ten year gap may not imply.
[65] I cannot see that either the gap between periods of cohabitation, or the intervening de facto relationship between the applicant and Ms M have any extraordinary features which would draw me to the conclusion that these were two separate relationships."
176In this case, I doubt that the parties, themselves, thought that they had two separate de facto relationships. I consider that they got back together and resumed their original relationship. To use the words of Master Macready (as his Honour then was) in McKone v Maretta [1999] NSWSC 438 at [60]; (1999) DFC 95-213:
"In one sense having resumed their relationship one might regard it as a continuance of what was the former de facto relationship which existed..."
177I have come to the view that after their separation, the parties simply recommenced their former relationship - they did not start another one. I shall treat the relationship, albeit punctuated by a break of about four months, as one relationship. To do otherwise, would, in my view, create a fiction; it would ignore the important fact that the same two parties to the relationship were involved; that the time apart was relatively short, and that during that time, they were in telephone, and other, contact.
178Thus, I am satisfied that the de facto relationship between the parties commenced in about the end of May or early June 2006 and continued until about mid-March 2007. Then, the parties had a separation (between about mid-March and the end of July 2007) and then resumed their relationship (between about the end of July 2007 and 23 March 2008). In all, the relationship existed for about 17 months in total (excluding the period between 15 March 2007 and 28 July 2007). Accordingly, it was of less than two years duration.
179Even if I am wrong in determining that there was just one relationship, it does not matter, since each relationship was of less than two years duration.
180As I have said, the respective accounts of their relationship are contradictory. I endeavoured to explain to the parties that, in considering the issue of contribution, financial or otherwise, it is the contributions of both parties that must be considered and evaluated.
181I am satisfied that at the commencement of their relationship, apart from the damages payment that the Defendant received as a result of his injuries and disabilities suffered in, or arising from, the motorcycle accident in which he was involved, the property of each of the parties was of little value and consisted of no more than personal possessions, a small amount of cash, and a motor vehicle. The value of the property as at the date of trial (excluding the value of the investment portfolio) was not significantly different.
182However, taking into account the investment portfolio of the Defendant, the parties entered into the relationship with significantly unequal assets. Of course, the Plaintiff made no direct, or indirect, financial, or other, contribution to the damages award that the Defendant had received well before the parties met.
183Their relationship, thereafter, was very short.
184Neither party acquired any property, and there was no joint ownership, or co-ownership, of property during the relationship. There was no property purchased for their joint, or common, use or benefit (other than in respect of their child). Whilst the value of the Defendant's investment portfolio fluctuated during the relationship, virtually all of that investment has been spent.
185The Plaintiff's submission was:
"... what I feel I had to do with that was the contribution I made financially assisted Charles without having to withdraw funds from that share portfolio and if he withdrew those funds he would get interest and he agreed on that on the stand and he was advised not to do that as well."
186It may be that the Plaintiff did pay some of the expenses but there were occasions when the Defendant withdrew cash sums from the proceeds of his investment. On one occasion, he withdrew about $45,000 and whilst it was initially drawn out for a specific purpose, it was used, at least in part, for the parties' joint, or individual, expenses.
187In weighing up the contributions of each of the parties and carrying out the comparative assessment, overall, I am of the view that the financial contribution of each to her, his, or their, expenses of daily living of the type to which I have referred, were about equal, although it seems that from about September 2007, when the Plaintiff stopped work, the financial contribution of the Defendant was likely to have been greater. I am simply unable to conclude that, overall, the financial contributions of one were greater than those of the other. No doubt, there were occasions when the Plaintiff paid more than did the Defendant; at other times, it is likely that he paid more than she did. It is impossible to determine whether, over the course of their relationship, one made a greater contribution than the other, and if she, or he, did, over what period and by how much.
188Furthermore, the financial contributions of each really did not go beyond what might be regarded as normal contributions made by each member of a couple who live together.
189In addition, the Plaintiff did not make any direct financial outlay, by way of contribution to the conservation and improvement of any of the Defendant's property. Of course, in contributing some proportion of his, her, or their, joint expenditure, that means that the Defendant did not have to expend his own moneys, but there was no obligation upon him to fully support the Plaintiff.
190It seems that the expenditure of the parties was limited to expenses of daily living, such as rent, food, holidays, and associated expenses. In this regard, at times the Plaintiff seems to have contributed more, whilst at other times, the Defendant contributed more. In my view, considering their whole relationship, such contributions do not require an adjustment of property.
191In relation to the homemaker contributions, prior to the birth of their child, each side asserts that her, or his, contribution was greater than that of the other. It is clear, from the evidence, that their relationship, at times, was somewhat difficult, although at other times, it appears to have been relatively harmonious and happy.
192Whilst I tend to favour the evidence of the Plaintiff in regard to homemaker contributions after the birth of their child, it is impossible to conclude, on this topic, that the Defendant should be disbelieved completely. For example, I consider that his evidence on steps he took to clean the Bella Vista property after the Plaintiff left, in order to obtain the return of the bond, had a ring of truth to it.
193I also accept, since it was not disputed, that it was the Plaintiff, who actually took steps to attend the Tenancy Tribunal to recover the bond. However, it appears that she received slightly more than half of the amount of the bond that was repaid, apparently, to take into account her efforts in this regard.
194On the homemaker contributions during the relationship, I am not satisfied that the contributions of either were such as to lead to an adjustment of property. In regard to these contributions, the evidence was extremely general and neither party really challenged the evidence of the other in cross-examination.
195Bearing in mind the duration of the relationship, and what I have said so far, one might consider that little scope at all exists for an adjustment of property interests based on the factors expressly stated by s 20(1), especially in circumstances where each party asserts financial and other contributions to the other. I must also remember that almost all of the Defendant's property, at the commencement of the relationship, and thereafter, was derived from compensation relating to injuries and disabilities he sustained before the relationship began.
196At the commencement of the relationship, there was an inequality in the value of property of the parties; at the end, the financial position of each was not vastly different from that of the other. The Plaintiff's financial position improved, marginally, as she had more in savings than she had at the commencement of the relationship, although she had been employed, earning a reasonable salary, for most of the relationship. Whatever the Plaintiff had in the way of separate property at the commencement of the relationship, she retained at the end.
197The financial position of the Defendant had not improved at the end of the relationship, but, at least in part, this was because of the impact of the global financial crisis. Whatever the Defendant had in the way of separate property at the commencement of the relationship, he retained at the end. The value of that property has changed, dramatically, for the Defendant, since the termination of the relationship.
198In stating the above, I have not forgotten the allegations of family violence and the conclusions I have reached, particularly in the period following the termination of their relationship. Whilst I accept that the repeated text and MSN messages were unwarranted and inappropriate, and that the Plaintiff would undoubtedly have felt threatened by what occurred, I do not consider that an adjustment of property is warranted on that account either. Whilst not in any way condoning the Defendant's conduct, I accept that emotions may run high upon, and shortly after, the termination of what was, at some time, a loving relationship. I also realize that these emotions were inflamed, even more, in the present case, because of the Defendant's belief that he was being kept from sharing the experience of the parties' child.
199Since the birth of their child, I consider that the Plaintiff's non-financial contribution as a parent has been greater than that of the Defendant. She has been the full-time carer of the child from her birth, although, in part, this has been caused by the, as yet undetermined, very serious allegations that have been made against the Defendant which have resulted in his contact with their child being limited and supervised. I remember that the contribution made by the party performing that role (in this case, the Plaintiff) should be recognised "not in a token way but in a substantial way".
200I am also satisfied that the Plaintiff is paying expenses for the child, but the Defendant is contributing in accordance with the child support assessment (although, presently, he may be two months in arrears). As the father of the parties' child, he has legal obligations, together with the Plaintiff, to provide for her support, which obligation he appears to accept. That obligation, has been, and if necessary, may be, addressed, under other legislative provisions for child support. Neither party has any obligation to maintain the other.
201Objectively viewed, at the present time, the Plaintiff's most compelling claim is for a property adjustment reflecting the fact that, since separation, she has continued to have the primary responsibility for the parties' child. However, as I have said, this is not because the Defendant has abrogated that responsibility to her. To the contrary, he has maintained, and it seems, continues to maintain, a desire for a greater involvement in the day-to-day care of the child. The Plaintiff conceded that since interim parenting orders have been in place, the Defendant has participated, so far as he is able to because of the orders, in caring for the child.
202Whether the current arrangements will change cannot be predicted. A hearing, for five days in February 2012, in another jurisdiction, will determine that issue.
203I reject the Plaintiff's submission that she stated in this way:
"I entered the relationship as if it was a de facto relationship. I went into a relationship in a domestic relationship on the basis that we were living together as a couple and when Annaleise was born we were living together as a family. I believed on that basis all of our assets would be included as one."
204That is not what the Act provides. The role of the court is not to use the division of property to remedy any justified grievances that one party may have against the other, or to compensate a party for disappointed or unfulfilled expectations: Kemp v French at [38].
205In all the circumstances, I am of the view that no order adjusting the interests of the parties in the property is just and equitable having regard to 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 to 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 a child of the parties,
206Even if I am wrong in concluding that an adjustment order should not be made, there is another reason for not making a property adjustment order in the present case. It is a necessary prerequisite to the making of an order under the Act for the Court to determine that there exists property to meet the order and the order made must be just and equitable in the circumstances of the case. An order can only be seen to be just and equitable if it can be measured against the whole of the available property of the parties. The justice and equity of an order must address the interests of both parties, not just the interests of one.
207I have carefully considered the Plaintiff's submissions that the Defendant has not satisfactorily accounted for about $65,000. Whilst the cross-examination of the Defendant does lead to the view that his explanation of the expenditure of the amount of $60,000, withdrawn in January 2011, together with other amounts withdrawn since then, is not entirely credible, I note that in the affidavit sworn in September, 2011, he had said that he had paid about $230,000 (not about $170,000) in legal expenses. At the time he prepared that affidavit, he could not have known the substance of the cross-examination, or that, ultimately, an amount of about $65,000, would be the amount said to be unexplained.
208It follows that the property available to be adjusted is only the amount of about $12,000 (since the Plaintiff accepted that the Defendant required a car for the benefit of their child). In circumstances where that is all that is left of the damages awarded to the Defendant, and where it is clear that the Plaintiff made no financial contribution to the property, it having been awarded before the parties met, other than as set out above, I do not think it would be just or equitable to make an order in favour of the Plaintiff which would have the effect of denuding the Defendant of the whole, or part, of that amount.
209What little remains of the property of the parties, or either of them, in the possession of each, should be retained by that party, with no other orders made in relation to property settlement. It follows that the Plaintiff's claim should be dismissed and I so order.
210In the circumstances of the case, and in the exercise of my discretion, I do not propose to make any order for costs.
211I order that the exhibits be dealt with in accordance with the Uniform Civil Procedure Rules 2005.