Giacceri v Fitsimmons

Supreme Court of NSW|2004-06-17|Before: Mr P

CITATION : Giacceri v Fitsimmons [2004] NSWSC 536 HEARING DATE(S) : 15, 16, 17 June 2004 1 November 2004 JUDGMENT DATE : 17 December 2004 JURISDICTION: Equity Division JUDGMENT OF : Master Macready at 1 DECISION : Paragraph 101

CATCHWORDS : Family Law. Application for adjustment of property interests under s 20 of the Property (Relationships) Act 1984. Orders for adjustment. No matter of principle. PARTIES : Giacceri v Fitsimmons FILE NUMBER(S) : SC 3488 of 2002 COUNSEL : Mr P Cummings for plaintiff Mr D.M. Loewenstein for defendant SOLICITORS : Boyd Wooi Olsen Lawyers for plaintiff Gillis Delaney Brown for defendant

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

3488/02 Paul Vittorio Giaccari v Leanne Fitzsimmons JUDGMENT 1 Master: This is an application for adjustment property interests under section 20 of the Property (Relationships) Act 1984 NSW. The parties lived together in a de facto relationship for a period of about eight years until they separated on 10 October 2000. The plaintiff puts the commencement of the relationship at 30 May 1992 when he says that the parties commenced cohabitation when the defendant and her children moved to live at 23 Amsdale Ave, Macquarie Hills. The defendant suggests that the relationship commenced in January 1991 when the plaintiff separated from his wife or, alternatively, in November 1991 when the purchase of the Amsdale Avenue property was completed. 2 The plaintiff and the defendant had previously been married prior to commencing their relationship. There were no children as a result of their relationship. The plaintiff was born on 6 June 1957 is now 46 years of age. He was formerly married to Jillian Sue Ace in 1980 and they separated in 1991. The plaintiff had two daughters, Rachael born 9 March 1984 and Sarah born 5 January 1989. Sarah lives with her mother and on occasions Rachael has lived with the parties as part of the household. This was from December 1996 until the parties separated. 3 The defendant had been married in 1981 and separated in 1987. She was divorced in 1990. There were two children of the marriage to her husband a Mr Maguire, Emma born on 20 September 1982 and Shaun born 16 August 1986. These children resided with the parties during the period of their relationship. 4 The plaintiff held a Diploma in Civil Engineering and for many years prior to 1991 he had worked for Allco Steel. The defendant had qualifications as an enrolled nurse have worked at Wallsend District hospital. During 1990 the plaintiff had incorporated a company Brentworth Holdings Pty Ltd ("Brentworth") through which he intended to carry on business with a partner. Unfortunately his partner died and the plaintiff commenced the business after he resigned from Allco Steel on 20 February 1992. He worked with them as a consultant for a few months until he commenced business with his new company. The defendant gave up her work after the commencement of cohabitation and came to work for the plaintiff's company as the company administrator which involved her in clerical and accounting functions. She continued working and was paid a wage from the company until January 1999. 5 The company provided funds for the defendant and funds for the plaintiff over the years until January 1999. Its accounts showed no particular profitable years although it had a substantial turnover and an administrator was appointed to the company on 13 January 1999. It ceased to trade on 29 January 1999 and there was then a scheme of arrangement which concluded in October 1999. As a result of the scheme of arrangement the secured creditor Westpac was paid in full and unsecured creditors were paid a dividend of 82 percent. The company was then deregistered. 6 The relationship between the parties deteriorated during 1999 and 2000. Neither of the parties had any productive employment after the collapse of the company and prior to their separation on 10 October 2000. The date of commencement of cohabitation

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

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

9 It can be seen from the terms of s 5 (1) that a domestic relationship can be either a de facto relationship or a close personal relationship. In the present case this is not of importance as the case was based upon the existence of a de facto relationship.

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

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

12 It is necessary to consider the various aspects of the definition to see when the relationship commenced. 13 The defendant's case on this aspect was that after January 1991 the defendant and her two children would stay three nights a week with the plaintiff at his rented unit and on the other nights the plaintiff would reside with the defendant at her premises at Taylor Avenue. The plaintiff seems to have rented his flat and the defendant paid the mortgage on the property at Taylor Avenue. The purchase of the property at 23 Amsdale Ave, Macquarie Hills was completed in November 1991. According to the defendant she and her children moved in immediately after the purchase. The plaintiff says that they did not move in until May 1992 after he had left Allco Steel. 14 The plaintiff has always conceded that he was in a casual relationship with the defendant at the beginning of 1991. His evidence which does not seem to be disputed was that on 4 January 1991 he separated from his then wife and moved into a rented townhouse at Eighth Street, Adamstown. . Later that year on 1 July 1991 he moved out of that rented unit to share rented accommodation with Mr Peter Diamante at Royal Street, New Lambton. He stayed there with Mr Diamante for another four to five months.

15 The present case raises two essential questions, the first being the determination of the time when the defendant and her children moved permanently to Amsdale Avenue and the second being whether the relationship prior to their move was such that it could properly be described as a de facto relationship.

16 On the first point it is interesting to note that the defendant in cross-examination insisted that she moved all the furniture into Amsdale Avenue before Christmas in 1991. When it was suggested to her that Grace Removals might have done the move she then changed her evidence and suggested that they moved the children's beds and clothing down to Amsdale Avenue in the November and December period. The reference to Grace Removals was relevant because there was a quotation in evidence being Exhibit "R" which was the quote for the removal of all the household furniture and personal effects from Taylor Avenue to Amsdale Avenue on 30 May 1992. Her only explanation for the use of Grace Removals was that it might have been to clear out the garage in May. Given the estimate of four hours this is hardly likely. The defendant tried to distance herself from the signature on Exhibit R. It seems highly unlikely that the main move would have been before Christmas without the benefit of Grace Removals whom the defendant said she often used and whom she said were used to clean out the garage in May 1992. 17 There were also tendered letters addressed to the defendant about her child support or maintenance which demonstrate that between 4 May 1992 and 1 June 1992 her address was changed in their records from Taylor Avenue to Amsdale Avenue. Having regard to the amount of the payment which was $412.00 a month it was probably important to her to change that address. The defendant had no explanation for this when asked in re-examination.

18 There was evidence from Mr Fitzsimmons, the defendant's father, that in November 1991 Leanne and Paul moved into the property at Amsdale Avenue. He claimed to have a very clear recollection that at the time they moved into Amsdale Avenue the plaintiff was unemployed and he thought it was prior to Christmas 1991. In his affidavit he even put it as far back as 1989. The other unchallenged evidence in the case clearly indicates that the plaintiff was employed until 20 February 1992 at Allco Steel. Mr. Fitzsimmons and his wife spent Christmas with the parties and the children at Amsdale Avenue and there is no dispute about this. This may, in fact, be the source of the confusion in Mr. Fitzsimmons' mind as to when the parties lived together at Amsdale Avenue. There was also a video taken outside Amsdale Avenue showing the children departing from the house in their school uniforms some time in January 1991. This is not in my view determinative of the matter considering the continuing contact prior to the final move.

19 There is evidence from Emma Maguire the defendant's daughter. She recalled that at the time she, her brother and mother moved into Amsdale Avenue, her mother moved some furniture that had been at Taylor Avenue. She was only nine-years-old at the time but this provides further support for the move being in May 1992. 20 In her affidavit evidence the plaintiff was inconsistent referring to many different times when the relationship commenced and when she moved into occupation at Amsdale Avenue. An illustration of inaccuracy in her evidence occurred when she says the plaintiff came to reside with her at Taylor Avenue to recover from an appendectomy. She put it at September/October before the purchase of Amsdale Avenue. Later documents established the date of the appendectomy at 4 November 1991, which was about the time of the purchase of Amsdale Avenue. She then retreated from her earlier evidence. 21 Without getting into credit issues in respect of the plaintiff and the defendant it seems to me that the objective evidence is that in all likelihood the defendant moved into the plaintiff's house on a fulltime basis in May 1992.

22 However, in this case it is necessary to consider the question of the parties' credit as they were at issue on a number of matters. I found the plaintiff to be a most unimpressive witness. She could not be objective to her own cause and she frequently would denigrate the plaintiff on baseless assumptions. For instance when faced with her signature on a document that was against her interests she would retreat into saying that she could not remember having signed it and that if she had it must have been under duress. Given the circumstances of the case in question it was unlikely.

23 When explaining what happened to the $45,000 she received from her property settlement, the defendant gave affidavit evidence that she paid $15,000 to the plaintiff and that she made those payments by cash withdrawals from her account being cash withdrawals of $5,000. When confronted with her bank records, which clearly disclosed there was only one possible, such withdrawal she had no explanation. Clearly this was in the context of trying to paint the plaintiff as having received directly some of the funds from her property settlement at a time when the business was collapsing. 24 The defendant in cross-examination suggested that she had not taken any significant period of sick leave after September 1998 apart from two weeks. She agreed that sick leave would not show up on the records unless she was in fact sick. When confronted with the records which showed significant periods of sick leave taken by her after September 1998, in fact some months worth of sick leave, she suggested that this was as a result of a direction of the plaintiff that sick leave be drawn down before the company was wound up. This answer could have been proffered beforehand but it was not. In respect of that period of sick leave the defendant denied that she had any medical certificate for the period. When she was confronted with the medical certificate that showed she was unfit to work up until 15 December 1998, she suggested that it was not her because it related to Leanne Giaccari and she had used her maiden name when visiting the doctor. Eventually when confronted with medical records in relation to her treatment in September 1998, which clearly showed that she went under the name of Leanne Giaccari, she conceded that the certificate did refer to her. Clearly the defendant had no regard for the truth and it was only when she was confronted with documentary evidence that she could not avoid that she made concessions. 25 On many occasions when confronted with a signed document in the witness box she would retreat into a generalized statement that it was signed under duress. These matters were never raised in her affidavit. At times she blamed others such as the accountant, Scott Lucas, in respect of the transaction she made on the superannuation account but that was exposed as incorrect. 26 At times the plaintiff exaggerated. For example, in relation to the hours of work, she suggested that she worked 96 hours per week from the commencement of the operation of the company. In cross-examination it became plain that this was an exaggeration and that she only intended to convey a range of hours between which she worked for about the first twelve months. Clearly this sort of exaggeration reduces the reliability of her evidence. Generally, given her demeanor and the many examples of exaggeration and untruthfulness I would not be prepared to accept the defendant unless her evidence was supported in some other cogent manner. 27 So far as the plaintiff is concerned he asked to be relieved from answering questions as to whether or not cheques for consultancy fees paid to him were included in his tax returns. The inference is that his evidence would not have assisted him in that regard. The other relates to payments made as tax-deductible payments by the company when in fact the funds were used in repayment of a loan to the plaintiff's brother. The plaintiff gave appropriate concessions when cross-examined about these matters. The plaintiff had no compunction in filling out false loan applications describing them as exaggerations rather than a lie. Although these instances reflect badly on the plaintiff's credit in so far as his obligations to correctly record matters for taxation and borrowing purposes are concerned, there were no particular instances where the plaintiff had fabricated evidence for the purpose of these proceedings. Having regard to the detail which he gave and the way in which he gave his evidence, apart from the qualification which I have just mentioned, I found him to be far more reliable than the defendant. 28 I return to the remaining question about the commencement of the de facto relationship. The defendant maintained that she and her children would spend upwards of three days a week at the plaintiff's residence in the period up until the time when they moved into Amsdale Avenue. The evidence of Peter Diamante, who had no interest in the proceedings other than his friendship with the plaintiff, was that after July 1991 "from time to time Paul received visits at our home from Leanne Fitzsimmons and on many weekends Leanne's children came to stay with her and Paul at the property". This is somewhat far removed from the evidence of the defendant, which has an inherent improbability, as the flat was a small two bedroom flat. It seems to me that it is a not uncommon situation of the parties staying overnight from time to time during the week at one or other of the parties' house and occasionally with children staying overnight. The parties ultimately decided to get together in a full relationship when the defendant moved into Amsdale Avenue with the children. As I said before, this occurred in May 1992 and in my view the de facto relationship did not commence until that time. 29 As the relationship commenced in May 1992 this result means that an issue arises, namely, whether the Court can look at the circumstances prior to the commencement of the relationship which in this case includes the purchase of the property, Amsdale Avenue, Macquarie Hills.

30 I dealt with the law on this matter in Del Gallo v Fredericksen unreported 23 July 1999 at paragraphs 32 to 35 where I had the following to say: "Can pre-relationship contributions be taken into account in the adjustment process?

This brings me to the question which was debated in submissions about whether one can take into account contributions prior to the commencement of the relationship. In Roy v Sturgeon this matter was dealt with at length by His Honour Mr Justice Powell then sitting at first instance. At pages 460 through to 466 His Honour analysed the provisions of the Defacto Relationships Act and the Family Law Act and ultimately came to a conclusion that, contrary to the approach taken by the Family Court in applications under s 79 of the Family Law Act, it was not open to this Court when dealing with applications under s 20 of the Act to have regard to contributions said to have been made prior to commencement of the of the particular "defacto relationship". His Honour pointed out that there was no injustice in this result for it would still remain open to a defacto partner to rely upon prior contributions as supporting a claim under the general law. (See the Act ss 7, 14(2), 38(1), 38(2).)

This aspect of the decision which was not over-turned on the appeal from the particular decision has been referred to at first instance in two cases. The first of these is Griffiths v Brodingham Fam LR 822 a decision of Chisholm J of the Family Court who was hearing an application under s 20 of the Defacto Relationships Act pursuant to the cross-vesting legislation. His Honour concluded that it was open to the court to have regard to the contributions of the kind mentioned in s 20 notwithstanding that those contributions might have been made before or after the period of the defacto relationship. His Honour's conclusion is at page 834 to 835. His Honour's reasons, particularly in considering the Family Law decisions do not seem to take account of the significant differences between the Family Law Act and the Defacto Relationships Act. However, I will not go into His Honour's reasons at this stage in detail for reasons to which I will later refer. The second decision is a decision of Mr Justice Bryson in Foster v Evans (1997) DFC 95-193. He was there concerned with contributions which were made after the conclusion of a relationship. His Honour did not accept that s 20 within its own terms contained a limitation for the period during which there was a defacto relationship as a period during which any contributions to the welfare of the family might have been made. He ultimately held that there could be contributions after the defacto relationship in circumstances where one of the partners continued to care for a child.

So far as I am concerned I think the matter is put to rest by the subsequent decision of the Court of Appeal in Fotheringham v Fotheringham. In that court the Judges were Powell JA, Beazley JA and Stein JA. One of the principle matters in issue was whether it is possible for a court to have regard to contributions made during an earlier period of a defacto relationship which pre-dated the relationship which was brought forward in the proceedings. The question which arose was whether it might be necessary for there to be leave to bring the action in respect of the earlier period of the relationship. Inherent in the judgment of Mr Justice Powell is an acceptance of the proposition which he had adumbrated in Roy v Sturgeon that it is not possible to take account of contributions prior to a defacto relationship. Justice Beazley agreed with the decision of Justice Stein who held that the relevant six week interruption did not mean that there were two periods of cohabitation. Accordingly, it was not necessary for either of these two justices to address the point in question in these present proceedings.

However, the decision of Powell J is a decision of a judge of an appellate court reaffirming a decision which he had made at first instance. In these circumstances I feel constrained to follow his Honour's decision in Roy v Sturgeon and for this reason it is fruitless for me to embark upon a consideration in detail of the decision of Bryson J and Chisholm J and to contrast them with Mr Justice Powell's decision in Roy v Sturgeon on this point. However I do note that Griffiths v Brodingham predated Evans v Marmont (1997) 42 NSWLR 70 in which the majority relied upon the difference between the provisions of the Family Law Act and the Defacto Relationships Act. They were of the view that those differences were conspicuous and deliberate. They noted the lack of the application of s 75(2)(o) which is fundamental to views taken by Powell J in Roy v Sturgeon . Mr Justice Bryson does not seem to have been referred to these aspects of the approach of Powell J." 31 There was an appeal in Del Gallo v Fredericksen [2000] NSWCA 293 and in its judgment on 24 October 2000 the Court dismissed the appeal. Although there was substantial argument on the appeal as to whether or not the earlier views which I have followed of His Honour Mr Justice Powell in Roy v Sturgeon (1986) 11 NSWLR 454 should prevail, the Court ultimately did not decide that matter because it made no difference to the factual outcome of the appeal. 32 The matter was briefly touched upon again by the Court of Appeal in McDonald v Stelzer [2000] NSWCA 302. This was an appeal from Bergin J and there was a suggestion that she had taken into account contributions made prior to the relationship. On a factual basis the court did not come to this conclusion. However, His Honour Mr Justice Priestley having had regard to what was said in Evans v Marmont (1997) 42 NSWLR 70 concluded that a trial judge was entitled to take into account the circumstances of or related to the parties' relationship which occurred prior to the commencement of the relationship provided such circumstances were closely connected in subject matter, time and relevance to the financial and non-financial contributions made during the period of the relationship. Such matters could be given some but not fundamental weight.

33 The matter has recently been dealt with by the Court of Appeal in Jones v Grech [2001] NSWCA 208 an appeal from a decision of Master McLaughlin. Powell JA at paragraph 10 found that there were two distinct relationships involved, the first being from 1984 to 1991 and the second commencing in 1993 and ending in September 1995. Relying upon the reasons he had previously adumbrated to which I have referred above, His Honour only allowed the contributions made within the second period. Ipp AJA at paragraphs 70 to 74 referred to Fotheringham v Fotheringham (1999) 46 NSWLR 194, [199] NSWCA 21 and came to a different conclusion to Powell JA. He held that a court must take into account the aggregate periods during which the de facto partners have lived in a relationship adopting my reasoning at first instance in Fotheringham v Fotheringham.(unreported, NSWSC 19 November 1996). Given the current state of appellate difference I could follow either Powell JA or Ipp AJA. In accordance with my previously expressed views I will follow Ipp AJA.

34 Importantly Ipp AJA also referred to McDonald v Stelzer which he said was determinative of whether the court may have regard to contributions made before the de facto relationship commenced agreeing with the comments of Priestly JA. His Honour said that he found no difference in principle between the contributions made before the de facto relationship stated and those made thereafter. The court, he said, could have regard to both. Davies AJA agreed with Ipp AJA that it was necessary to have regard to events which occurred prior to the last period of the de facto relationship. 35 The matter is not of great moment as it is clear on the evidence that it was the plaintiff who contributed all the funds for the purchase. Although he originally had a mortgage of $95,000 at the time of purchase it had reduced to $900 at the commencement of cohabitation. The defendant suggested that she helped select the property and that it was purchased in the plaintiff's name so there would be no interference with her own property settlement. The plaintiff denies this and says he made it clear that the purchase was for him. I accept the plaintiff on this aspect. 36 Although the parties were at issue as to whether the purchase was for the purpose of commencing their relationship it is still appropriate to regard the house as part of the pool of assets as they used it as their residence for some years.

The property of the parties at the commencement of the relationship 37 The plaintiff's assets and the time of commencement of cohabitation were as follows: --

House at Amsdale Ave Macquarie Hills, equity $124,000 Motor vehicle $21,000 Cash and bank accounts and $32,000 Superannuation $124880 Shares and miscellaneous entitlements $14,000 Furniture and personal effects $18,000 Construction plant and equipment $64,721 Debts due from his company Brentworth Holdings $7611 Interest in Brentworth Holdings $33,000 38 The plaintiff had purchased the property at Amsdale Avenue, Macquarie Hills for $125,000. It was subject to a small mortgage of $900.00. The plaintiff at that time had already effected a property settlement with his wife. 39 The defendant's assets at the commencement of cohabitation included a car that was subject to a loan to a building society in the sum of $4,000. She had some furniture, clothing and personal effects. She and her husband owned the property at Taylor Avenue that was subject to a mortgage of approximately $75,000. The property was eventually sold in 1996 and after payment of expenses the plaintiff received approximately $45,000 in 1999. Acquisition of property during the course of the relationship 40 There were two properties purchased in April 1996 in the plaintiff's name. They were 1 Nautilus Close, Elermore Vale, which after completion became the parties' home and 1 Sixth Street, Cardiff. The latter property was purchased from the plaintiff's brother for $120,000 and was rented out. The purchase price was provided as to $60,000 on completion and the balance repaid over the next 18 months. 41 The funds for the purchase of Nautilus Close and the $60,000 paid on completion of Sixth Street was provided by way of a loan from Westpac which the company took out at the time. The amount was debited to the plaintiff's loan account. 42 After the parties moved out of Amsdale Avenue the property was renovated and rented out. Thereafter the rental was received by the plaintiff as was the rent from Sixth Street, Cardiff. 43 On 21 March the plaintiff completed the purchase in his name of the property at 77 Cambronne Parade, Elermore Vale. The purchase price was $190,00 plus $5,000 for furniture. The plaintiff says that the purchase was made on behalf of his parents who moved into occupation after completion. 44 According to the plaintiff in his initial affidavit the following was the position: "63. On about 21 March 1997 I completed, on behalf of my parents, the purchase of the property at 77 Cambronne Parade, Elermore Vale. The purchase price was $190,000 together with $5,000 for the purchase of existing furniture and appliances. I had a number of discussions with my parents about the purchase of this property and I am aware that they are giving Affidavits in these proceedings regarding the circumstances of the purchase of the property.

The funds for the purchase of the property came from monies borrowed from my father prior to 1993 and interest owing, money provided by my father for the deposit ($20,000), money provided later ($105,489) from the sale of my parent's property at 35 Kings Road, New Lambton and a financial compensation to my father for work he had done for the company for which he had not been paid previously. In addition to the works carried out for the company, my father had also carried out maintenance works for me on all the properties. These works included repairs, painting and gardening. Once again he had not been paid directly for these services. 66. As I did not have the funds readily available at the time to repay my parents to allow their direct purchase of this property, (also their property at Kings Road New Lambton had not been sold yet) it became necessary for me to obtain a loan with Westpac Bank (loan amount of $140,000 which was subsequently, repaid in total) in my name to cover the shortfall in funds. To this end combined with the fact that my parents are old age pensioners and arranging interim finance for them would have been difficult, the property was purchased in my name. My parents live at this property, and have done so since its purchase. Leanne did not provide any finance for the purchase of the property. 45 The plaintiff's father also gave evidence in the following terms in his first affidavit: "10. In late 1996 there was a large family gathering at our home and present were Paul and Ms Fitzsimmons.

I recall discussing an insurance claim I had with the NRMA arising from post-earthquake damage to our property. Paul said to me words to the effect: "Why d on't you sell the house?" My wife and I had discussions and I decided to put my home up for sale. Shortly afterwards Paul found another property that he thought would be of interest to us.

Paul found the property at 77 Cambronne Parade, Elermore Vale and we had a number of discussions about the purchase of that property. At that stage our New Lambton property had not been sold. Paul said to me words to the effect: "I still owe you all the money you lent me for the business and the work you have done. I can get a loan in my name." This is what happened and the Cambronne Parade property was purchased in Paul's name.

The purchase was completed in March 1997 and the purchase price was $190,000 and $5,000 for furniture which was included in the sale.

As soon as the purchase was completed and with considerable help of my brother-in-law who is a painter, we painted the whole interior and exterior of the house. We hired a bricklayer to carry out the erection of a brick fence and with the help of others we did the remainder of the work to make the property habitable and pleasant. 15. I recall that Ms Fitzsimmons had been present when Paul and I had discussions about the purchase of the Cambronne Avenue property. We moved into the house in April of that year. I attempted, over the following 12 months, to sell my old home at New Lambton.

I completed the sale of my New Lambton property in 1998 and I recall Paul receiving the settlement cheque for a little over $105,000.00. 46 In his next affidavit he expanded on the conversations in these terms: "8. After the conversation referred to in paragraph 11 of my earlier affidavit, Paul took my wife and I to inspect the property at 77 Cambronne Parade, Elermore Vale. We inspected the property with him on two or three occasions and I believe that his partner, Leanne, was present on at least one of those occasions. Paul said to my wife and I words to the effect, " This place is a bargain. It's been on the market for two years. It has been empty. It will need some work, but I think you should get it. " 9. On another occasion, Paul said to me words to the effect, "You and Mum aren't getting any younger, this place will be handy to my place."

As well as Paul, my wife and I have two daughters and a son. All of our children inspected the property at Cambronne Parade before it was purchased.

After a number of inspections, I said to Paul words to the effect, "Yes, let's go ahead and buy it " Paul and I then had a number of discussions about how this would be achieved. The property owned by my wife and I at New Lambton had been on the market, but there was little interest. I said to Paul words to the effect, "I've got enough for the deposit on the new place, but that's all." I then discussed with Paul, money he owed me from loans I had previously given to him. He said to me words to the effect, "I can't repay you now, but I should be able to get a home loan in my name. You're both pensioners. You won't get a home loan. That's how we'll be able to go ahead and buy Cambronne Parade. " 12. I understand Paul went to the bank and obtained the loan. I then gave Paul a cheque for $20,000.00 being for the deposit on the purchase of the Cambronne Parade property. I had discussions with my wife about these arrangements throughout

Some months after my wife and I moved into the Cambronne Parade property I recall a conversation I had with Leanne. She said to me words to the effect, " You'll have to try harder to sell New Lanibton. Paul can't keep paying the mortgage for you here. He can't go on paying it forever." I remember Leanne was very insistent. She said, "The business is going bad. You'll have to sell Kings Road. "

After further discussions with my wife, we proceeded to sell our property at New Lambton. It had been on the market well over a year and it realised much less than I had hoped. Arrangements were made for the proceeds of sale to that property to be drawn in a cheque payable directly to Paul and I recall he received the settlement cheque for a little over $105,000.00. It was my understanding that Paul used those funds to reduce or discharge the mortgage on the Cambronne Parade property.

I recall some months later having a conversation with the solicitor, John Palmieri. John is a personal friend of mine and we were board members of a local soccer club together. I said to Mr Palmieri words to the effect, " How much would it cost to get Cambronne Parade transferred into the names of me and my wife from Paul? " I recall Mr Palmieri said words to the effect, "It'll cost about $6, 000.00 in stamp duty. "

I then discussed this possibility of such transfer with Paul and he said to me words to the effect, "Don't worry Dad. There is no need to pay that. You'll never be kicked out. The place is yours." I accepted what my son told me. I believe I had paid my son for the property. He had the loans of $80,000.00, the deposit of $20,000.00 and the proceeds of the New Lambton sale. I also did not seek interest at the rate we had discussed for those earlier loans.

I do not see and have not sought repayment of the $20,000.00 which I have to Paul for the deposit on Cambronne Parade. 47 The plaintiff commented on this evidence in the following terms: "14. I have seen the Supplementary Affidavit of my father sworn on 24 May 2004 and filed in these proceedings. I agree with the contents of that Affidavit so far as they refer to my conversations with my father and mother in preparation for the purchase of the Cambronne Parade property. I also said to my father on one occasion words to the effect: "The house will be yours, but I have to borrow in my own name. You're pensioners and you won't get a loan." 48 The defendant gave no particular evidence on the matter. Mr Palmieri, a solicitor who acted on the purchase, gave some evidence of a general recollection of the plaintiff proposing to purchase the property for his parents but could give no detail. 49 The evidence discloses that the plaintiff obtained the loan and that in due course on the sale of the parents' property the sale price was paid to the plaintiff and the loan thus substantially paid off. There was no real challenge to the fact that the plaintiff employed his father and owed money to the work is father had done for him over the years. 50 It was the plaintiff's case that there was a resulting trust in favour of his father and that he had no beneficial interest in the property. However, in the circumstances of this case the purchase was in the name of the son and the father gave the funds, which allowed repayment of the loan used to purchase it, to the son. The operation of the presumptions have been recently been discussed in Nelson v Nelson (1995) 184 CLR 538 by the High Court in the following terms at page 547. The presumptions The presumptions operate to place the burden of proof, if there be a paucity of evidence bearing upon such a relevant matter as the intention of the party who provided the funds for the purchase. The first presumption is that where a person in the position of Mrs Nelson paid the purchase price for the Bent Street property and caused it to be transferred to other persons, they hold the property upon trust for the person who provided the purchase money. The other presumption, that of advancement, is perhaps not strictly a presumption at all. Rather, the position is that there are certain relationships from which equity infers that any benefit provided for one party at the cost of the other has been provided by way of "advancement". The consequence is that the equitable estate follows the legal estate and is at home with the legal title; there is an absence of any reason for assuming that a trust arose. The operation of the presumption of advancement may be rebutted by evidence of the actual intention, at the time of the purchase, of the parent or other person who provided the purchase money. Evidence also may be given to support the presumption of advancement. Where the presumption of advancement is rebutted, the trust which then is enforced is a resulting trust, not an express trust. The trust thus is outside the operation of the requirement for writing in s 7 of the Statute of Frauds 1677 (Eng) and its modern Australian equivalents. Accordingly, oral evidence is admissible to rebut the presumption of gift and thus to affirm the operation of the presumption of resulting trust. Professor Scott deals with the matter as follows: "This reasoning is somewhat artificial; but trusts arising where the evidence shows an intention to create a trust when land is purchased in the name of a relative were considered to be resulting trusts before the enactment of the Statute of Frauds, and that statute expressly excepts resulting trusts from its operation." 51 Although there was no objection to some of the evidence it is to be noted that it is the true intention of the person who has paid the purchase money which is the only relevant intention. 52 In Jacobs' Law of Trusts in Australia Sixth Edition the learned authors refer to the evidence necessary before this in these terms: "In order to ascertain the true intention of the person who has paid the purchase money, the court will admit evidence (written or parol) of the circumstances surrounding the transfer: for example, the relationship of the parties, and statements made by the parties. Evidence of acts and declarations of the parties before or at the time of the purchase or so immediately after it as to constitute a part of the transaction will be admissible either for against the actor or declarant. But no so as regards subsequent acts and declarations. In regard to the latter, the rules of evidence relating to declarations against interest will apply. The decision of the House of Lords in Shephard v Cartwright makes it clear that in rebutting either the presumption of a resulting trust or the presumption of advancement subsequent acts are inadmissible in favour of the person doing those acts but are admissible against him. The High court in Calverley v Green reaffirmed this as the law in Australia." 53 In the present case there are no such subsequent declarations against the interest by the father. Indeed, some of his actions shortly after the transfer enquiring about having the title but back into his name, support the absence of any presumption of advancement. When considering the statements and discussions between the plaintiff and his father at the time it is clear to me that the presumption of advancement has been rebutted and that the plaintiff holds the property upon a resulting trust for his father. In these circumstances, it should not be considered as part of the property of the parties. Property at the conclusion of the relationship 54 At the conclusion of the relationship the defendant had her personal possessions and some cash but the evidence did not address the detail of her assets. Each party had retained a car that had been purchased earlier and in respect of which money was the owing to the plaintiff's father. The plaintiff still had the four properties to which I have referred. Details of other assets do not appear in the evidence. Since the parties separated 1 Sixth Street has been sold. The defendant has continued to reside in the property at Nautilus Close up to the time of hearing while the plaintiff has either lived with his parents or in rental accommodation since separation.

55 The parties have agreed on the following values of the relevant properties. Property At separation At hearing

56 The decrease in value of the Amsdale Avenue property is because it is been found to have serious cracks in the foundations. There is doubt as to whether this cracking can be repaired and even if it can there does not seem to be any estimate the cost of repair. I will adopt the valuation which was made on the basis that the faults could not be satisfactorily remedied and the site was valued for redevelopment purposes. 57 The property at 6th Street sold on 24 January 2001 for $135,000 and I would infer that it had a similar value at separation. I refer to the disbursement of these funds later in these reasons. 58 The plaintiff was excluded from Nautilus Close after separation and accordingly it would seem the majority of personal effects were retained by the defendant. Each of the parties had an interest in the self managed superannuation fund and each also had employer-sponsored superannuation funds. 59 At separation the defendant had a total sum invested in superannuation of about $86,000 which comprised of amounts in industry funds of a totalling $18,000 and an amount in the self managed PLG superannuation fund of about $68,000. This last item is represented by an amount of $43,000 still remaining in the fund and an unauthorised withdrawal of $25,000 by Leanne. Such removals put the fund into breach of the relevant taxation laws and for this reason the plaintiff seeks that the amount be returned to the fund so that its affairs can be regularised. 60 The plaintiff's interest in the superannuation fund was rolled into another fund by him and the amount of it at separation does not appear in the evidence. His superannuation as at June 2004 amounted to $94,291 which gives some indication of the extent of his superannuation at separation. 61 Leaving aside any land in respect of Cambronne Parade the debts at separation were the loan from the plaintiff's father for the purchase of cars of about $21,000, credit card debts and household debts.

62 The only contribution made by the defendant was the amount from her property settlement in the sum of $46,000 which was eventually received on 1 July 1999. She had a vehicle with little equity and there were some wages that she received from the commencement up until October 1992. 63 It is quite clear that the defendant contributed nothing to the purchase of Amsdale Avenue or the setting up of the company Brentworth Holdings. The provision of funds for these were provided by the plaintiff and I have already set out earlier in this judgment the extent of the assets that the plaintiff had in this regard at the commencement of the relationship. 64 There are 1,000 issued shares Brentworth Holdings and the plaintiff initially held these. In July 1992 he appointed Leanne a director of the company and transferred one of those thousand shares to her. She did not pay for that share. 65 It was through funds made available by the company that the properties at Nautilus close and Walter Street were purchased. These amounts were provided to the plaintiff as part of his loan account. Even after the commencement of the company there were some funds totalling $12,000 that the plaintiff contributed to the company from other personal entitlements that became available to him. The company was the complete source of income for the parties throughout the period of the relationship.

66 There are a number of different contributions referred to in the evidence the principal one being the contribution to the business which supported the parties and allowed the purchase of the various properties during the course of the business and I will turn to these first.

67 The plaintiff and the defendant worked hard in the business particularly in the initial years. It is clear that the company owed it very existence and its success for some years to the plaintiff's expertise and connections that he had developed over many years with his involvement in the engineering and construction business when he was employed by Allco Steel. 68 It is clear that the plaintiff, who had an engineering background, had had extensive experience with BHP and Allco Steel. It was that experience which allowed him to commence the company. For her part the defendant had been trained as a nurses' aid and apart from working in that field she had also been involved in administering a medical practice. Her role in the company was quite a different from that of the plaintiff. Put simply, the company would not have commenced or continued for as long as it did without the plaintiff's input and business skills. This is not to decry the fact that during the early years the defendant worked hard to help the plaintiff with the business. This is only to be expected given that it was a new venture for both of them in the early stage of their relationship. 69 There was some criticism by the defendant that the plaintiff did not arrive at work until late in morning. Having regard to the nature of the work which he did for the company this certainly does not indicate that he was lazy but more that his business involvement took him away from the office at those times. The plaintiff for his part was critical of the defendant's performance of the functions as an employee during the relationship. There may be some substance in the criticism but probably the defendant did her best given her experience. 70 Prior to the commencement of the relationship the defendant had been employed in a salary range of $20,000 to $24,000. Her salary increased to $30,000 - $35,000 when she was employed by the company. However between 1993 and 1996 one half of the defendant's wages were paid into her account of the remaining half into the plaintiff's account at Westpac. 71 Another matter that has to be considered is the additional remuneration the defendant received over and above her salary. She gave specific evidence of her salary and in the initial part of her cross-examination she conceded that the amounts shown in her tax returns and assessments for the last three years before the closure of the company were as follows:

Year ended 30 June 1997 $45,415 Year ended 30 June 1998 $46,618 Year ended 30 June 1999 $50,263 72 It became apparent that, apart from these funds, which were shown in the defendant's tax returns, she also transferred monies by way of salary into accounts for her children, Shaun and Emma and to account in her own name. She was the sole trustee on the children's accounts and she used the pay system that she administered to make those payments. That system did not require the plaintiff's signature for the payments to be made. As was demonstrated in cross-examination, the defendant transferred an additional $85,677.87 into those accounts over and above the salary paid to her by the company. No tax was paid on that additional amount and the defendant was the trustee of the children's accounts. She has received the funds and taken the benefit of them as well as the income that was fully paid to her in those years. 73 When the defendant was confronted with documents in the witness box she suggested the plaintiff had authorised them. The plaintiff denied this. It should be noted that Shaun and Emma lived with the parties at this time. The plaintiff's daughter, Rachael, also lived with the parties at this time. If, as the defendant suggested, it was a scheme on the part of the plaintiff one would have expected him to have included an account for his daughter. The whole of the defendant's evidence in her affidavits and in her initial cross-examination was deliberately false as far as her income was concerned. In her affidavit she made allegations of fraudulent payments made by the plaintiff contrary to the proper allocation of payments for taxation purposes but she made no reference to this particular matter in her affidavits. 74 In my view, the defendant has deliberately drawn these funds from the company for her own personal benefit without the knowledge or approval of the plaintiff. 75 It is plain that after the closure of the company in January 1999 there was no further income from the company. Cross-examination disclosed that between January 1999 and June 2000 the defendant spent approximately $140,000. These monies comprised: Drawings on her credit cards $9,000 Child support $15,000 Fund used from the plaintiff's account $53,000 Drawn from PLG superannuation account $5,000 Property settlement $41,000 Samaritans BHP Trust $ 3,000 Tax return $9,000 76 The support by the plaintiff for the defendant and her children continued throughout the year 2000. 77 The defendant has had other benefits since the cessation of the relationship in October 2000. This included the use and occupation of Nautilus Close, which even she conceded had a rental value of $200.00 per week. The for a period of four years this amounts to approximately $41,600. 78 Apart from the$5,000 which I have referred to above which was drawn from the superannuation fund there is also evidence that a further $20,000 said to have been withdrawn by the defendant from the superannuation fund account. In his second affidavit the plaintiff attached an acknowledgement signed by the defendant on 16 May 2001. In her affidavit in reply the defendant merely indicated that she did not recall signing the document. In cross-examination she conceded that it was her signature but suggested that it must have been as a result of duress. This, of course, was not raised in her affidavit and it is a common answer from her when she is faced with documents signed by her which are against her interests. It is clear that there were a number of documents signed by her during 2001 in order to regularize the parties' affairs. The defendant suggested that she was constantly harassed and frightened by the plaintiff. However, this would seem contrary to her evidence that they had attempted a reconciliation in 2001 and contrary to emails which she sent to the plaintiff. I am satisfied that the defendant signed this document without any pressure from the plaintiff and it is another benefit received by her to the detriment of the superannuation fund. 79 There were a number of other benefits received after separation. 80 On the sale of Sixth Street, Cardiff on 24 January the funds were dispersed in accordance with a Court order as to $10,000 to the plaintiff, $10,000 to the defendant and $83,920 to a joint account held by the parties. A further sum of $21,644 was repaid to the plaintiff's father in repayment of monies advanced for the purchase of two motor vehicles in September 2000. The defendant and the plaintiff have continued to receive the benefit of those motor vehicles. On 26 February 2001, by agreement between the parties, the joint account was closed and the funds in the account paid to the plaintiff. 81 There are proceedings in the Local Court in which the plaintiff seeks to recover the $13,700 advanced to the defendant after the relationship ended and those matters can be dealt with in those proceedings. Homemaker and parenting contributions 82 There was not a lot of dispute about these contributions. The plaintiff gave detailed evidence in schedules to his first affidavit. The plaintiff concedes that the defendant made a greater contribution as a homemaker and it is to be noted that for most of the relationship the defendant's two young children lived with the parties. It is clear that there were substantial parenting contributions by the defendant in respect of these children. The plaintiff's daughter, Rachael, was part of the household for about half of the relationship and there was some inter-reaction between her and the defendant. There seems to be a dispute as to the closeness of the relationship. The evidence showed that there was correspondence between the defendant and Rachael's school that would suggest that she did play a role with regard to Rachael. 83 The defendant's parents assisted with the children when they came to stay for an extended period in 1996. This was when the parties' new home at Wallsend was being constructed. It is apparent that Mrs Fitzsimmons cooked meals and Mr Fitzsimmons mowed the lawns and they certainly helped to look after the children. The defendant should be credited with this contribution.

84 There are allegations of domestic violence made by the defendant against the plaintiff. No claim is made in the proceedings for damages for assault and it is necessary to consider the allegations and the way they may be relevant to a consideration of the contributions.

85 I made reference to the authorities on this aspect in Jackson v Jackson [1999] NSWSC 229 in these terms: "49 I turn to the question of what effect the assaults may have in the adjustment process. The defendant relied on two cases under the Family Law Act, Doherty v Doherty (1996) FLC 92-652 and Marando v Marando (1997) FLC 92-754. In the first of these cases the Full Court said at page 82,683:- "On page 26 the trial judge made reference to the appellant's drinking habits and to domestic violence and aggression, which he exhibited towards the respondent and the children, particularly to S. Although the trial Judge did no more than record these events, it is clear from his findings that the wife's contribution as homemaker and parent may have been increased as a result thereof. Although the domestic violence complained of related to a relatively small period of time at the end of the marriage, nevertheless, his Honour would, in my opinion, have been entitled to have found that because of the appellant's conduct, the respondent's contribution diminished as a consequence, leading to the overall weighting based upon contribution in favour of the wife being increased, albeit only slightly, having regard to the facts of this case." 50 Of interest is the reference to such conduct either increasing one party's contribution or diminishing the other party's contribution. 51 In Marando v Marando at 84,168-9 Gee J had the following to say about the issue of domestic violence. In my opinion however, the wife over the very long period of cohabitation made a much greater contribution than the husband to the welfare of the family, particularly as homemaker and parent. I am satisfied on the evidence that in her homemaker and parenting role the wife in that role and by way of general contribution to the family's welfare carried out responsibilities well beyond the norm. She had the responsibility of the home and the children almost entirely without the husband's assistance for a very long period of time. Amongst other things, she thereby enabled him to work and earn income over and above his full time work as well as his full time work. In this family she was the uniting force and the one who provided the support, love and affection necessary to maintain this particular family unit over a long time. This was made especially hard by the husband's abuse and denigration of her and the children in the ways described by them in their evidence, which I largely accept on this issue, as well as by his attitude to 'women's work' and by his drinking which necessitated the wife working especially hard and harder than would be usual in normal situations as homemaker, parent and as the prime navigator of the welfare of this family through the many seas of problems and difficulties which confronted them over the years These are special factors of the kind to which the Full Court drew attention in Ferraro v Ferraro 16 Fam LR 1, especially at pages 38, 39 and 47, that being a decision affirmed in McLay v McLay 20 Fam LIZ 239 at pages 248 to 249, and is no doubt what Baker J had in mind when speaking for the Full Court in Doherty v Doherty 20 Fam LR 137 at page 141. His Honour's remarks, although, in my respectful opinion, obiter and given in an extempore judgment, are entitled to great respect. They do not represent new law. It has been suggested in some quarters since that judgment was delivered that they have, but I disagree with that suggestion. The remarks of Baker J in Doherty's case were simply an expression, in the context of domestic violence, of the passages in Ferraro's case cited above. Neither Ferraro's case nor Doherty's case purported to overrule Soblusky (1976) 2 Fam LR 1, nor Ferguson (1978) 4 Fam LR 312, where investigation of fault or misconduct per se was deprecated. Any intention to overrule Ferguson was deprecated in Ferraro's case at page 39, and I am, with respect, unable to accept that either Fogarty J or Baker J, who were members of the Full Court in both Ferraro and Doherty, would have intended such decisions to be overruled without expressly saying so. 52 In Green v Robinson (1995) 36 NSWLR 96 Cole J at 119 after discussing the dictionary definitions of "homemaker" adopted the definition as "one who creates and maintains a comfortable and welcoming ambience for the members of their household". He went on to say at page 119:- "However, even such a second meaning is inadequate if it is intended to convey that only one person in a household may be responsible for the creation or maintenance of such a welcoming ambience for it is clear, in my view, that each party to a relationship, be it of marriage or of a de facto relationship, may contribute to the homemaking in which that relationship subsists. Parties to the relationship may, depending upon their various capacities, skills, inclinations, interests, available time and other factors, contribute significantly to the making of a home. The concept of " homemaker" or "making of a home" has a different and wider connotation than housekeeping or maintaining a house. It involves the creation of an emotional ambience of stability . To take but three examples. A person, not infrequently the male in the relationship, may have skills related to home improvements which are exercised for the mutual advantage of the parties in the relationship. That is an aspect of homemaking for it permits the more pleasant enjoyment of the domestic relationship. To similar effect, a person, most frequently the female in the relationship, may practice cooking and decorating skills which also are aspects of homemaking for they similarly lead to a comfortable and welcoming ambience in the home in which the parties in the relationship live. And each, both the male and female partners, may bring to the relationship aspects of stability, and attitudes of tolerance and understanding critical to the creation of a home. It is important to recognise that contributions as a homemaker may be qualitative as well as quantitative, and that a lesser quantitative but higher qualitative contribution may be of equal or even greater importance and value to the relationship and the partners and children than a seemingly greater quantitative contribution. The width of aspects of contribution, and in some instances the amorphous qualities which a party may bring as his or her contribution as a homemaker to a relationship, highlights the difficulty of trying to quantify in precise money terms the contribution of each party. It lends emphasis to the need for the Court in most instances to exercise a significant element of judicial assessment in determining whether it is just and equitable that a property adjustment be made. 53 Clearly his Honour includes the qualitative aspects as well as the quantitative. Accordingly in the adjustment process it is possible to take account of these actions of the plaintiff in assessing his homemaker contributions. Whether it is appropriate to do so rather than give a judgment for assault is the next question. 86 There were three incidents of violence alleged by the plaintiff during the course of the relationship. One was at a Christmas party in 1995 in the Newcastle Hotel with the Brentworth staff and BHP staff. The defendant says an argument developed between her and the plaintiff and he demanded they leave which they did. When they arrived home she says the plaintiff accused her of flirting with gentlemen at the party which she denied. An argument developed, at which stage the defendant was naked, and according to her she was pushed outside onto the front patio and the door locked behind her. She knocked and the plaintiff came out and pushed her to the ground. She started to run down the driveway and she slipped and fell onto her back, which resulted in skin off her shoulder blades. She says that the plaintiff kicked her and told her to get up. He then grabbed her by the hair and dragged her up the driveway. He got her back into the house and she stayed there the night. The next morning she called her sister-in-law and attended her doctor. She also complained to the police. 87 The second incident occurred in February 1996 when the parties were at work and the defendant was printing out a workers' compensation document. The defendant says that she disagreed with what was to be in the document and refused to sign it. The defendant says that the plaintiff then hit her and threw her against the wall and he kicked her between the back of her shoulder blades. 88 The third incident was in June 1996 when the parties were again going through some documents. The defendant says she asked the plaintiff how they could explain cash cheques to the accountant. The plaintiff insisted on proceeding that way and he lent across and slapped her across the face and picked her up and threw her down. 89 The plaintiff denied these incidents. In the first incident he painted a picture of the defendant being drunk and amorous and of her own volition running out into the street naked and yelling. He says he had to bring her back into the house and while she struggled they both sustained minor injuries. 90 The plaintiff's account of the first incident is inherently unlikely and I accept the defendant's evidence on this. 91 The other incidents are harder to resolve and it should be noted that there was no particular evidence given of difficulties caused by the two alleged assaults in 1996. They seem to be isolated incidents with no on-going repercussions. Given the circumstances, namely the improper treatment of accounting records, I favour the defendant's version of these incidents. In respect of the 1995 incident there would be difficulties which the defendant suffered as she recovered from her injuries which would have had an effect on her ability to carry out her homemaker and parenting roles. 92 However, in the context of the entire relationship these incidents, although serious, did not detract in any substantial way from the homemaker contributions. As I have said earlier, there was no claim for damages for assault and, accordingly, the Court does not need to indicate its disapproval of domestic violence by awarding such damages. Claims by the parties 93 The plaintiff's claim was that the defendant had received sufficient recompense during the period of the de facto relationship and afterwards and accordingly sought the following orders: 1. That within 14 days the Defendant delivers up to the plaintiff, with vacant possession and in good order and repair, the property situated at and known as I Nautilus Close, Elermore Vale, New South Wales. 2. That within 28 days the defendant pay into the PLG Superannuation Account the sum of $25,000.00. 3. That within 28 days the defendant pay to the plaintiff the sum of $13,700.00 being the amount advanced by the plaintiff to the defendant per loan agreements executed by the parties between 26 February 2001 and 3 August 2001. 4. That the defendant's cross claim be dismissed. 5. That within 28 days the defendant pay to the plaintiff costs incurred by the plaintiff in these proceedings. 6. That the caveats lodged by the defendant be withdrawn.

94 The defendant for her part sought the transfer to her of the property at Nautilus Close free of any liability together with her superannuation in the company superannuation fund. 95 When one comes to consider the respective claims of the parties it is to be noted that we are concerned with a relationship of only eight years' duration. The defendant's children were accepted into the household and required substantial parenting. The plaintiff's daughter, although older, also required such care. These contributions together with other non-financial contributions to the business have to be recognised in a substantial could not taken way. See Black v Black (1991) 15 Fam LR 109 where Clarke JA speaking for the Court said: "It is established that the contributions referred to in s 20(1)(b ) ... should be recognised in a substantial and not a token way and that the purpose of the subsection is to give recognition to the position of a woman who, by her attention to the home and children, frees her partner to earn income and acquire assets." 96 In this case we are not concerned with a mother who stays at home but the contributions still have to be recognised. There is also the defendant's contribution to the business which in part was rewarded by her salary. However in this case it must be appreciated that it was the plaintiff's contribution in a financial and business sense that enabled the parties to have the lifestyle which they enjoyed for the years up until 1999. It should be noted that the plaintiff's salary recognised his greater contribution. For example in the years from 1997 to 1999 the plaintiff received the sum of $395,951 while the defendant received the sum of $142,198. The plaintiff's financial contribution was modest and only came at the end of the relationship after the business failed. 97 Leaving aside the parties superannuation and personal effects the pool of assets at present property values appears to be a sum of approximately $748,420. This sum includes the $103,920 received on the sale of Sixth Avenue which funds were paid as to $10,000 to the defendant and $93,900 to the plaintiff. To order the defendant to receive the whole of Nautilus Close would be to give her approximately 63% of the pool of assets. This is a wholly disproportionate claim as it is necessary to take into account the many benefits which the defendant has received to date. These include the unauthorized drawings and the occupation of Nautilus Close for some four years. These equate to about $150,000. 98 The property at Amsdale Avenue has decreased in value over the period of the relationship and both parties should share this loss. In terms of financial contributions, given his ownership of Amsdale Avenue and his contributions to the company, the plaintiff has contributed the substantial part of the assets that led to acquisition of the property which the parties were able to acquire during the course of the relationship. These factors (and other ones mentioned in these reasons) suggest that the appropriate percentage of the pool which the defendant should receive is in the order of 30%. Adding back in what she has already received by way of unauthorised payments and use of Nautilus Close leads me to the conclusion that in the circumstances of this case the appropriate adjustment, which takes into account a time adjustment for on the benefits received by the defendant, is that the plaintiff should pay by way of property adjustment to the defendant the sum of $100,000. 99 Part of this sum, namely $25,000, should be paid by the plaintiff into the defendant's superannuation fund so that the default under legislation is rectified. The plaintiff and the defendant are to retain the assets in their present possession including their interest in the superannuation. 100 Over the years since the parties separated the plaintiff has mortgaged the properties at Nautilus Close and Amsdale Avenue to an extent that in June 2004 the amount owed to Westpac bank was the sum of $623,000. The plaintiff has entered into a number of business ventures in which he has placed funds and there may be some doubt as to whether these will be recoverable by him. He has a number of credit card debts. The purpose of mentioning this is that the defendant had in her cross claim sought the setting aside of the mortgages. The mortgagee was not joined and accordingly no such orders can be made which affect their interests without their joinder. For this reason I propose to allow liberty to apply in case there are difficulties in enforcing the orders that I propose to make in this matter. 101 The orders that I make are as follows:

That the plaintiff pay by way of property adjustment between the parties: (a) the sum of $75,000 to the defendant, and (b) the sum of $25,000 to the PLG superannuation fund upon the defendant: (a) delivering up to the plaintiff with vacant possession and in good order and repair the property situated known as one Nautilus Close Elermore Vale, New South Wales, and (b) delivering up to the plaintiff withdrawals of caveats over any of the properties in the name of the plaintiff.

Otherwise each party is to retain any property in their own name and their present existing superannuation entitlements. 3. I reserve liberty to apply for orders by way of enforcement or otherwise. 102 I will hear argument from the parties at an appropriate time as to costs.

Last Modified: 12/23/2004 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.

Property (Relationships) Legislation Amendment Act 1999(NSW)

(1991) 15 Fam LR 109

At a glance

Court

Decision date

Before

Source

Judgment (50 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (13)