Joy v Cox

Supreme Court of NSW|2007-11-01|Before: Gzell J, Bryson J, Mr J

DECISION : Judgment for the defendant. Plaintiff to pay defendants costs.

CATCHWORDS : FAMILY AND CHILD WELFARE - De Facto Relationships - Legislation - Whether a sexual relationship of 14 years' duration constituted a de facto relationship - Parties maintaining separate houses and separate investments - No financial dependence or interdependence - Whether just and equitable to adjust the interests of the parties in property

LEGISLATION CITED : Property (Relationships) Act 1984

Ye v Fung [2006] NSWSC 243 Roy v Sturgeon (1986) 11 NSWLR 454 Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677 Howlett v Neilson (233 Fam LR 402 Chanter v Catts (2005) 64 NSWLR 360 CASES CITED : Kardos v Sarbutt (2006) 34 Fam LR 711 Foster v Evans, NSWSC, unreported, 31 October 1997, Bryson J Jones v Grech (2001) 27 Fam LR 711 Sullman v Sullman [2002] NSWSC 169 Evans v Marmont (1997) 42 NSWLR 70 Bilous v Mudaliar (2006) 65 NSWLR 615

PARTIES : Denise Rosalie Joy - Plaintiff John Russell Cox - Defendant

COUNSEL : Mr J Hamilton - Plaintiff Ms A Rees - Defendant

SOLICITORS : Gianacas Argiris Monnox - Plaintiff Boyd Olsen Lawyers - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

5550/2004 DENISE ROSALIE JOY v JOHN RUSSELL COX JUDGMENT 1 The defendant, John Russell Cox, admits that he and the plaintiff, Denise Rosalie Joy, were in a de facto relationship as that term is defined in the Property (Relationships) Act 1984, s 4 from June 2000 until they separated in September 2003. Mrs Joy asserts that the relationship commenced in September 1989. Mrs Joy seeks an adjustment of interests with respect to the property of the parties under s 20(1). Jurisdiction 2 The Property (Relationships) Act 1984, s 15(1)(a) prohibits the court from making an order adjusting the interests with respect to the property of the parties to a relationship unless satisfied that the parties to the application, or either of them, was resident within New South Wales on the day on which the application was made. The application was made on 12 October 2004 when both parties resided in New South Wales. 3 The Property (Relationships) Act 1984, s 15(1)(b)(i) prohibits the court from making such an order unless satisfied that both parties were residents of New South Wales for a substantial period of their domestic relationship which, pursuant to s 15(2), is satisfied if the parties lived together in the State for a period equivalent to at least one third of the duration of their relationship. For at least one third of the period from June 2000 to September 2003 or from September 1989 to September 2003 the parties were resident in New South Wales. 4 The Property (Relationships) Act 1984, s 17(1) provides that, with an exception irrelevant for present purposes, the court shall not make an order of the sort claimed in these proceedings unless satisfied that the parties have lived together in a domestic relationship for a period of not less than two years. A domestic relationship is defined to include a de facto relationship in s 5(1)(a). That requirement is satisfied whether the cohabitation was for the longer or shorter period alleged by the respective parties. 5 The Property (Relationships) Act 1984, s 18(1) provides that if a domestic relationship has ceased, an application for an order of the kind here sought can only be made within the period of two years after the date on which the relationship ceased, except as otherwise specified in that section. The application before the court was made within that time limit. 6 Each of the parties owned property with respect to which an adjustment of interests might be made. 7 In my view, it is within the jurisdiction of the court to make an order adjusting interests in the property of the parties if that course is appropriate. The relationship 8 Mrs Joy said that she and Mr Cox commenced a full sexual relationship in September 1989. It was not a matter of a gradual relationship, but one that was "full on from day one". Mr Cox said it was a gradual relationship. He stayed with Mrs Joy in her house about once per week until it built up to three or four nights per week after Rachel left for Canada. Mr Cox was a chemical engineer. He lived in China from September 1998 to June 2000. Apart from that period, he lived in New South Wales. Mrs Joy visited Mr Cox in China on three occasions. They slept in the same bed both in China and in New South Wales. 9 Mr Cox had three children but they did not live with Mrs Joy or Mr Cox during their relationship. Mrs Joy had four children, Derrick who was 19½ in September 1989, Mitchell who was 18½, Rachel who was a little over 15 and Nikolas who was 5 ½. Nikolas was diagnosed with attention deficit disorder and hyperactivity. His condition got worse as he grew older, or if he did not take his medication, or maintain his milk-free diet. 10 Mr Cox lived alone in his house at Whitebridge. Mrs Joy lived in her house in Wallsend with her four children. Mrs Joy said that she and Mr Cox slept in her bed at Wallsend from Monday to Friday and in Mr Cox's bed in Whitebridge over the weekends. Mr Cox admitted that they slept in the same bed when at his house or at hers. 11 When Derrick went to University, he ceased to live with his mother except during the mid-year break and at the end of the year. When he finished university he returned to live with his mother for about two years. Later Mitchell attended university and subsequently TAFE in Wollongong and he returned to live with his mother during university breaks. When he concluded his tertiary education he returned to live with his mother for approximately two years. Derrick left his mother's house in 1995, Mitchell left in 1998. Rachel lived in Canada from May 1994 to July 1995 and from December 1995 to December 1997. She returned to live with her mother after her second period in Canada and finally left her mother in 2001. 12 Mr Cox returned to his house on each working day. He brought his toiletries and clothes for the next day when he came to the Wallsend house and he took his used clothes and toiletries away with him when he went to work the next morning. He left none of his things in the Wallsend house. Mr Cox did all his own washing and ironing. He said he never had breakfast at Wallsend, but Mrs Joy and Rachel said he did. 13 In about 1997, Mr Cox said it was 1996, Nikolas threatened him with a kitchen knife saying that he was going to kill him. Mr Cox reported the incident to the police. There followed a six-month period during which Mr Cox did not sleep at Wallsend and Mrs Joy did not sleep at Whitebridge. She said they continued a sexual relationship during this period. Mr Cox denied it. When the relationship resumed, Mr Cox said he would not have Nikolas in his house. 14 Mrs Joy said that Mr Cox told her he did not want to live in her house. He did not want to be anybody's father. He said he did not want to live with Nikolas. He did not like having meals with Nikolas, but Mrs Joy said he still did so. Because of his concern over Nikolas, Mr Cox said he usually arrived after Mrs Joy and the children had finished their evening meal. Mrs Joy accepted that Mr Cox said he did not want Nikolas as part of his family, and at times he said he did not want Nikolas anywhere near his house. Mr Cox did not financially support any of Mrs Joy's children, nor did he give them any gifts. 15 Rachel supported her mother's evidence that from September 1989 her mother and Mr Cox shared her bedroom during the week at Wallsend and Mr Cox's bedroom at Whitebridge during weekends. Both she and Mrs Joy had said that Mr Cox ate with them at Wallsend every night. In cross-examination it transpired that Mr Cox ate at a rugby league club once a week and took Mrs Joy to the league club on another night during the week. 16 When they went out together, Mr Cox paid. He attended social functions with Mrs Joy. He took her on holidays for which he paid. He attended Christmas functions and other family picnics in which Mrs Joy's relatives were involved. He gave her gifts of jewellery. 17 Early in the relationship Mr Cox paid for skiing trip with Mrs Joy and Nikolas. Subsequently he took Mrs Joy, Rachel and Nikolas on a camping holiday in the Snowy Mountains after which he said he would not take Nikolas on another holiday because of his behaviour. In 1992 he paid for Mrs Joy to accompany him on a one to two week holiday in Singapore. He paid for a holiday in New Zealand in 1998. He paid for annual skiing trips with Mrs Joy. After he returned to Australia from China in June 2000, Mr Cox paid for a driving holiday with Mrs Joy in North Queensland, a skiing holiday in Perisher and a skiing holiday with Mrs Joy and Rachel in 2002. He did not pay for Rachel. Mrs Joy did. 18 When Mrs Joy visited Mr Cox in China, he paid for trips to Hong Kong, Beijing and Xian as well as local excursions to Shanghai and adjacent cities. In 2002 Mr Cox paid for Mrs Joy to accompany him on a holiday to the United States of America. 19 Mrs Joy said she regarded Mr Cox as her partner during this period but she made no mention of a de facto relationship in her income tax returns or in her applications to the Department of Social Security for a child disability allowance and she referred to Mr Cox as her boyfriend in a statement to police following an accident. 20 Of the statement to the police, Mrs Joy said that in consequence of the accident she did not know what she was saying. Of the income tax returns, she said Mr Cox prepared them for her. Mr Cox did not include an acknowledgement of himself as a de facto partner in the income tax returns he prepared for Mrs Joy in the period in which he admitted that a de facto relationship existed. 21 Mrs Joy paid the mortgage, rates and outgoings on her Wallsend property and Mr Cox paid the outgoings on his Whitebridge property. 22 At no time did Mrs Joy and Mr Cox conduct a joint bank account. Mr Cox made Mrs Joy a signatory on his Visa card. He said this was because Mrs Joy complained that Nikolas was stealing money from her purse. Mrs Joy gave Mr Cox authority to operate on her accounts. Mr Cox maintained a ledger indicating the nature of each Visa transaction and the Visa card charges were paid by transfers of money from his account and from Mrs Joy's account under his authority to operate upon her accounts so that each of them paid for their respective charges to the card. 23 At no time did the parties acquire property, real or personal together nor did they borrow moneys together, nor give security for one another. 24 In 2003, Mrs Joy and Mr Cox each purchased in their own names, off-plan, adjoining units in Newcastle West. 25 There was one occasion when Mr Cox said Mrs Joy requested a loan from him of $2,590 to pay for kitchen cupboards at the Wallsend house. The builder did not take visa cards. Mr Cox says the amount has not been repaid. 26 When Mr Cox went to China, Mrs Joy, Rachel and Nikolas moved into Mr Cox's house and the Wallsend property was leased out. Mrs Joy did not share the rent with Mr Cox but kept it for herself. She did not pay Mr Cox any rent for living in the Whitebridge property but looked after the upkeep of the premises. Mr Cox objected to Nikolas being in his house but he had nowhere else to live. When Mrs Joy visited Mr Cox in China, Rachel looked after Nikolas. 27 Mr Cox returned from China on a couple of occasions when he lived in his house with Mrs Joy and Rachel. He was concerned that Nikolas was also living there. Nikolas was again aggressive towards Mr Cox and he again said he did not want Nikolas living in his house. On his return from China in December 1999 for a Christmas break, he told Nikolas to get out. Centrelink allowance and accommodation was found for Nikolas in Hamilton. 28 When Mr Cox finally returned from China he lived with Mrs Joy in his home at Whitebridge in a de facto relationship. Rachel was then the only child of Mrs Joy who lived in Mr Cox's house. Mr Cox and Mrs Joy shared the outgoings on the house, shared the cost of food and utilities and shared the cost of some house purchases. They shared household tasks such as cleaning, washing and ironing and shared cleaning of the house. They also shared the one motor vehicle, the expenses of which were shared. 29 In the period from 1989 to 2003 Mr Cox assisted in painting or repairing the Wallsend property and Mrs Joy assisted in cleaning, repairing or painting rental properties owned by Mr Cox. 30 During the relationship Mrs Joy did not work, except for a period when she worked at the office where Mr Cox worked. She was in receipt of a pension as a result of her husband's death. 31 A friend, Julie Ann Harvey gave evidence of observing affectionate behaviour between Mrs Joy and Mr Cox and observing Mr Cox striking Nikolas on a number of occasions. 32 Mr Cox's son, Jason Oliver Cox, gave evidence that when he visited his father's house at Whitebridge the internal furnishings and carpet had not changed. They were the same as when his parents parted. He was never aware of any furniture of Mrs Joy being in the house. He returned to Newcastle in 1996 and visited his father at his Whitebridge home. He said he rarely saw Mrs Joy at the property during his visits. His visits were usually at the weekend. After his father's return from China, he saw Mrs Joy and, sometimes, Rachel at his father's house. He did, however, attend a picnic at which his father and Mrs Joy were present. 33 Mr Cox's daughter, Lisa Michelle Cox, gave evidence. She lived overseas from 1996 to 2000. She, too, said that when she visited the Whitebridge home, furniture and fittings were largely the same as they had been when she left in 1984. In 1993, Ms Cox graduated from Newcastle University and stayed in her father's house after the ceremony. She said she did not observe anything that suggested that anyone other than her father lived there. When her father returned from China and she visited the house, she saw Mrs Joy. In cross-examination, she agreed that in the period from 1993 to 1996 when she visited the Whitebridge property Mrs Joy was present on some occasions.

De facto relationship 34 The first question to be determined is whether the de facto relationship commenced in September 1989, as Mrs Joy claimed, or in June 2000, upon his return from China, as Mr Cox claimed. 35 In Ye v Fung [2006] NSWSC 243 at [45]-[50], I considered the origin of the definition of a de facto relationship in the Property (Relationships) Act 1984, s 4. It adopted the approach taken, and most of the factors to be taken into consideration in determining whether such a relationship existed, enunciated by Powell J in Roy v Sturgeon (1986) 11 NSWLR 454 and by Kearney J in Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677. The definition is as follows: "(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." 36 For the purpose of the Property (Relationships) Act 1984, s 4(2)(a) there was a relationship between the parties that lasted for 14 years. That length of time favours a view that the relationship was a de facto one. But it is not determinative of the matter. All the circumstances of the relationship must be taken into account. 37 In terms of the Property (Relationships) Act 1984, s 4(2)(b), there was no common residence of the parties before June 2000. Mr Cox maintained his residence at Whitebridge and Mrs Joy maintained her residence at Wallsend. Neither party moved any chattels to the other premises.

38 There was a sexual relationship between them during the 14 year period broken only by the six months following the threatened attack on Mr Cox by Nikolas and the periods of separation while Mr Cox was in China and Mrs Joy was not visiting him there. 39 There was no financial dependence or interdependence or arrangements for financial support between the parties. They maintained their own investments. Mr Cox paid for the Whitebridge property and his investments and Mrs Joy paid for the Wallsend property and her investments. Visa card charges were discharged by the person who raised the debit. The parties were financially independent. They maintained no joint accounts. As Mrs Joy said, they each had their own income and so had relative independence. 40 So far as ownership, use and acquisition of property is concerned, the parties, again, maintained their independence. There was no joint ownership of property and the use of the Wallsend property by Mr Cox and the use of the Whitebridge property by Mrs Joy were more or less the same. 41 The degree of mutual commitment to a shared life was relatively low before June 2000. It involved sleeping at one or other of the houses, going on trips together, the making of gifts to Mrs Joy by Mr Cox and his paying for their entertainment. 42 Mr Cox made no financial contribution to any of Mrs Joy's children nor did he provide any of them with gifts. He made it quite clear that he did not want to be the father to any of Mrs Joy's children and he clearly rejected the notion that Nikolas should be part of a family. He did not care for any of Mrs Joy's children and until he finally returned to New South Wales from China none of her children were admitted by him to a family. He accepted Rachel in his home for the short period until she left in 2001. 43 Mrs Joy said that she performed household duties on Mr Cox's behalf by washing and ironing his clothes. Mr Cox, on the other hand, said he brought clothes he needed for the next day to Wallsend and took away his dirty clothes to wash and iron them himself at Whitebridge. That evidence was supported by Rachel. 44 Apart from attending social functions together, including occasions involving Mrs Joy's relatives, there was little evidence of reputation and public aspects of the relationship. When asked whether there was a single document that referred to Mr Cox as her de facto husband, Mrs Joy said there was none. She said that she never introduced Mr Cox as her partner or her de facto husband. In her representations to the Department of Social Security and to the Australian Taxation Office throughout the relationship, Mrs Joy represented herself to be a single parent. 45 Looking at the matter overall, this was, in my view, very much a case of individuals maintaining their independence but enjoying a sexual relationship together in the period up to June 2000. Things changed at that stage because Mr Cox returned to the Whitebridge property where Mrs Joy and Rachel were then living. He accepted that situation and, thereafter, he and Mrs Joy shared the expenses of their cohabitation. 46 In my judgment, the de facto relationship between Mrs Joy and Mr Cox commenced in June 2000 and concluded in September 2003. Adjustment of interests 47 Any adjustment of interests with respect to property of the parties to a domestic relationship is governed by the Property (Relationships) Act 1984, s 20 which is in the following terms: "(1) On an application by a party to a domestic relationship for an order under this Part to adjust interests with respect to the property of the parties to the relationship or either of them, a court may make such order adjusting the interests of the parties in the property as to it seems just and equitable having regard to: (a) the financial and non-financial contributions made directly or indirectly by or on behalf of the parties to the relationship to the acquisition, conservation or improvement of any of the property of the parties or either of them or to the financial resources of the parties or either of them, and (b) the contributions, including any contributions made in the capacity of homemaker or parent, made by either of the parties to the relationship to the welfare of the other party to the relationship or to the welfare of the family constituted by the parties and one or more of the following, namely: (i) a child of the parties, (ii) a child accepted by the parties or either of them into the household of the parties, whether or not the child is a child of either of the parties. (2) A court may make an order under subsection (1) in respect of property whether or not it has declared the title or rights of a party to a domestic relationship in respect of the property." 48 It has been said on a number of occasions that the exercise of jurisdiction under this provision involves three steps. First, the identification and valuation of the property of the parties; secondly, the identification and valuation of the respective contributions of the parties, of the types referred to in the provision; and, thirdly, the determination of what, if any, order is just and equitable having regard to those contributions (Howlett v Neilson (2005) 33 Fam LR 402 at 407, Chanter v Catts (2005) 64 NSWLR 360 at 366, Kardos v Sarbutt (2006) 34 Fam LR 550 at 558).

49 Counsel for the parties provided a list of the property of the parties. In each case the net value exceeds $2 million. There is some difference between the lists. Counsel for Mrs Joy used values at trial, the typical situation, though not the invariable one (Kardos at 558[30]). Counsel for Mr Cox used values at separation. Counsel for Mr Cox said in her final address that the parties were not arguing about the figures. They were agreed. The lists can be represented as follows: Asset Ownership Value at separation Value at trial 40 Seladon Ave, Wallsend (sale) Plaintiff $270,000 $270,000 Worth Place, Newcastle Plaintiff 1,000 - Shares (sale) Plaintiff 9,500 9,500 Ford (sale) Plaintiff - 500 CBA Plaintiff - 500 $280,000 $280,500 Less: ATO debt 4,000 4,000 Totals c/d $276,500 $276,500 5 Illira Close, Whitebridge Defendant 285,000 300,000 2 Kaleen St, Charlestown (sale) Defendant 251,000 251,000 7 Illira Close, Whitebridge Defendant 285,000 285,000 1/22 Hanbury St, Mayfield Defendant 195,000 175,000 2/22 Hanbury St Mayfield Defendant 185,000 165,000 Worth place, Newcastle Defendant 1,000 - CBA Defendant 5,369 5,369 Bank of Hong Kong Defendant 73,600 73,600 Newcastle Permanent Defendant 122,089 122,089 Shares Defendant 163,670 474,782 Village Roadshow (sale) Defendant 9,200 9,200 Superannuation Defendant 442,100 440,000 Newcastle Permanent Superannuation Defendant - 35,000 Loans to children Defendant - 170,000 $2,018,028 $2,506,040 Less: debt to mother 70,000 70,000 Visa debt 8,900 2,000 Totals b/d 276,500 276,500 $2,250,939 $2,710,540

50 In the scheme of things, the difference in total value is not of great significance.

Contributions 51 Mrs Joy approached Plaintiff - values 40 Seladon Avenue, Wallsend Datsun motor vehicle AMP Policy - Nikolas MLC Policy - Derek Plaintiff's policy Gift from father to IAG SHARES and AMP $103,935.00 Defendant 5 Illira Close, Whitebridge Equity in 1 Kaleen Street, Charlestown Savings in Commonwealth Bank Savings in Commonwealth Bank Chemplex Staff Superannuation Gift from mother in 1994 Forgiveness of partial Pro rata redundancy Gift from mother to defendant in 1997 $435,500.00 Therefore: Plaintiff's individual Defendant's individual $539,435.00 the quantification of the contributions made by the parties by isolating the assets brought into the relationship at the time she said the de facto relationship commenced and at their then value. The assets of the parties were then reduced by these individual contributions and it was submitted that her individual contribution should be refunded and her non-financial contributions should be taken to justify a just and equitable sharing between she and Mr Cox of the balance of the assets. When the net assets she had at trial were deducted, her claim was to an order for an amount just under $1 million and leave was sought in final address to amend the statement of claim to increase her claim of $500,000 to the resultant figure. The calculations were as follows: at commencement of cohabitation $79,250.00 5,000.00 3,174.00 1,837 3,174.00 plaintiff used to reduce mortgage 2,500.00 shares arising from plaintiff's membership of NRMA and demutualisation of AMP 9,500.00 $105,000.00 13,000.00 10,600.00 1,900.00 67,000.00 8,000.00 debt from defendant to mother (1994) 100,000.00 paid to defendant in 1993 100,000.00 30,000.00 contributions $103,935.00 contributions 435,500.00

Net Assets: $2,710,540.00 Minus combined individual contributions 539,435.00 $2,171,105.00 Therefore Plaintiff receives: Refund of contributions $103,935.00 Half of balance 1,085,500.00 $1,188,435.00

Plaintiff already has proceeds of sale of Seladon Ave, Whitebridge $270,000.00 Proceeds of sale of Ford 500.00 Commonwealth Bank 500.00 Sale of IAG shares and AMP shares 9,500.00 $280,500.00 Less: ATO debt 4,500.00 $276,000.00

Therefore $1,188,435.00 - $276,500.00 = $911,935.00 (Amount sought by plaintiff).

52 As a result of my finding that the de facto relationship did not commence until June 2000, the pro rata redundancy figure must be adjusted. Mr Cox received $128,500.00 in relation to a ten year period of service from 1983 to 1993. Because it was argued for Mrs Joy that she and Mr Cox were in a de facto relationship for four years of that period, the figure of $128,500 was reduced by 20% to exclude the proportion attributable to the period of the de facto relationship. But since the de facto relationship did not cover any of that ten year period, the reduction ought not to have been made and, on the figures put forward for Mrs Joy, the redundancy should be $128,500.00. 53 It was argued that such an adjustment should not be made because, it was said, the Court could take account of contributions made before commencement of the de facto relationship. 54 True it is that the view taken by Powell J in Roy at 466 that it was not open to a court to have regard to contributions made prior to the commencement of the de facto relationship was rejected by Bryson J in Foster v Evans, NSWSC, unreported, 31 October 1997. His Honour took the view that the Property (Relationships) Act 1984, s 20(1)(b) did not contain a limitation to the period during which there was a de facto relation. While inherently unlikely, it was not impossible that contributions might be made to a former de facto partner after the relationship had ended. 55 In Jones v Grech (2001) 27 Fam LR 711 at 721 it was held that events that had occurred prior to the commencement of the last period of the de facto relationship should be taken into account. 56 But that was a case in which, over a period of more than 32 years, the parties lived together or otherwise in some form of a relationship but de facto relationships existed from 1985 to 1991 and from 1993 until final separation in 1997. 57 That is not the situation in this case. There was, in my view, one period during which a de facto relationship existed and that was from June 2000 until September 2003 and with respect to the contributions made during that period I see no reason to discount the redundancy paid to Mr Cox. 58 The problem with the approach taken on behalf of Mrs Joy is that it does not identify and quantify financial and non-financial contributions made by the parties. Instead it combines the second and third steps referred to in the authorities and by broad sweeping submission argues that Mrs Joy's non-financial contributions were such as to justify an equal division of property interests as being just and equitable. I have difficulty with that approach. 59 For Mr Cox it was submitted that it was not open to Mrs Joy to represent to the Commissioner of Taxation and the Department of Social Security that she was a single mother, and to claim in equity that she was in a de facto relationship. It was submitted that she did not come to court with clean hands and her application should be dismissed. I prefer to base my judgment on other grounds. 60 Central to Mrs Joy's case is the argument that her non-financial contributions to the relationship justify a large adjustment of property interests of the parties. That submission depended, in large measure, upon the proposition that Mr Cox had accepted Mrs Joy's children into the household and that Mrs Joy performed household duties for Mr Cox and the family, thereby enabling him to earn income and increase his investments. 61 Not only was the family during the de facto relationship limited to Mrs Joy, Mr Cox and, for a short period, Rachel, but also in the period from September 1989, should I be wrong in my conclusion of when the de facto relationship began, Mr Cox did his own washing and ironing and homemaker duties performed by Mrs Joy for his benefit were limited. 62 Furthermore, as Campbell J pointed out in Sullman v Sullman [2002] NSWSC 169 at [348], it is not just and equitable to give credit for the entirety of homemaker duties performed on behalf of a family. A mother will make a home available for her children and perform household tasks for them regardless of a de facto relationship. The only credit to which she is entitled for the purpose of calculating what is just and equitable within the meaning of the Property (Relationships) Act 1984, s 20(1) is any extra benefit over and above what she would have done in any event. 63 I doubt that any extra benefit was conferred on Rachel during the short period her mother provided her with the benefit of household tasks from June 2000. 64 In the period of the de facto relationship the contributions to the household were mutual and of similar proportion. In the earlier period there was no financial contribution by Mrs Joy to the investments of Mr Cox and her assistance in painting, cleaning and repairing his properties was of a similar nature to the contribution Mr Cox made to her Wallsend property. 65 Mrs Joy had the advantage of retention of the rent from her Wallsend property. She also benefited from a driving holiday to North Queensland, a skiing holiday in Perisher and a further skiing holiday with Rachel for whom she paid. 66 If, contrary to my view, the de facto relationship commenced in September 1989, or it is appropriate to consider contributions made from that time, a similar pattern emerges. The benefits she obtained from her relationship with Mr Cox far exceeded any contributions she made of the type referred to in the Property (Relationships) Act 1984, s 20(1). 67 In my view, the contributions that Mrs Joy made to the relationship were of the type referred to by Gleeson CJ and McClelland CJ in Eq in Evans v Marmont (1997) 42 NSWLR 70 at 75-76: "…it is important to bear in mind that s 20(1) directs that regard be had to contributions of the designated kinds made by each of the de facto partners: often it may be found that contributions of the kind referred to in par (b) will involve shared activities or reciprocal benefits not giving rise to any disproportionate burden which it would be just and equitable to satisfy by an adjustment of interests in property." 68 Further, as Ipp JA said in Bilous v Mudaliar (2006) 65 NSWLR 615 at 628, where one party has acquired valuable investment assets in a way that has little to do with the contributions of the other party to the relationship, it is likely that no adjusting order will be made: "Coming to a different point entirely, I would add, as a general proposition, that, where the primary income earner has professional or business talents which have enabled him or her to acquire valuable investment or business assets in a way that has little or nothing to do with the contributions of the other party to the relationship, it is likely that no adjusting order would be made in respect of those assets. That is simply because it is likely that the justice and equity of the case would require such a result." 69 Mrs Joy and Mr Cox were financially independent of each other and made their own investments in a way that had nothing to do with the contributions made by the other partner to the relationship. In my view, it would not be just or equitable to make any adjustment of the interests of Mrs Joy or Mr Cox in their property.

70 There is no need for an amendment to the statement of claim. I give judgment for Mr Cox upon it. Mrs Joy must pay his costs.

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.

(2006) 34 Fam LR 711

(2001) 27 Fam LR 711

(2005) 33 Fam LR 402

(2006) 34 Fam LR 550

At a glance

Court

Decision date

Before

Source

Judgment (20 paragraphs)

Parties

Cases Cited (11)

Cited By (1)