Rather than endeavouring to divide the lump sum damages award into its component parts, it seems to me appropriate that I treat the wife as a minor contributor within the meaning of s 79(4)(a), (b) and (c) to those moneys received by way of an award for damages by the husband. Given that the settlement represented $125,000 out of a total pool of $400,000, it seems to me that the wife's contribution to the pool of assets represented by the house, the superannuation, and the damages award should be assessed at 40%.
74 Accordingly, I shall treat the damages award made to the Defendant as her property, although I shall consider the Plaintiff's contribution to that property.
75 The Defendant alleged that, at the date of hearing, she had a debt owing to her mother of about $250,000. Her evidence was that the debt had been incurred as a result of her mother advancing moneys to the Plaintiff, or on her behalf. In support of the alleged debt, the Defendant tendered a bundle of bank documents, which, so it was said, had amounts advanced, highlighted in green, the total of which was nearly $270,000.
76 The Defendant also tendered a document dated 20 July 2010, addressed to her solicitor, apparently signed by the Defendant's mother, which stated that:
I have loaned my daughter… in excess of $250,000 for renovations to [the Willoughby property] and for legal fees to do with custody disputes and various other litigation…. The amount was agreed to be paid back when the house was sold. This was always agreed to be a loan and not a gift. I need this money to be paid back now as a matter of urgency to enable me to buy my own accommodation…
77 Subsequent to the hearing, the Court was provided with a document by the parties, the effect of which was that about $178,000 was admitted as having been spent by the Defendant's mother.
78 The Plaintiff disputes the alleged debt and says that even if any money was advanced, the Defendant's mother may not, in fact, require it to be repaid. Mr Jackson, counsel for the Plaintiff, in this regard pointed out that the Defendant's mother had not given evidence and, therefore, could not be cross-examined on the purported loan document.
79 The failure by the Defendant to adduce any evidence directly from her mother, and from her aunt, in this case is important. It is clear, from the Defendant's evidence that her mother was in Sydney, at least, during the hearing. There is no explanation for the failure to have her swear an affidavit and/or to call her to give oral evidence (assuming that were permitted). This aspect is heightened since it has also been admitted by the Defendant that her mother played a role in assisting the Defendant in the claim for damages for personal injuries and was a witness in the Federal Court proceedings in which the parties were involved.
80 In relation to the Defendant's aunt, I have referred to the relevance of her evidence previously, and the explanation advanced by the Defendant for not having her give evidence.
81 The so-called "rule" in Jones v Dunkel is really one of commonsense: Ghazal v Government Insurance Office of New South Wales (1992) 29 NSWLR 336. Kirby P (as His Honour then was) there observed at 343:
... The rule in Jones v Dunkel is one of commonsense reasoning. It provides that an unexplained failure by a party to call a witness may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted the case of the party who might be expected to call the witness. It is important to note that this is a facility. It is not an obligation in the reasoning of the decision-maker: cf Café v Australian Portland Cement Pty Ltd (1965) 83 WN (Pt 1) (NSW) 280 at 287; [1965] NSWR 1364 at 1370. The rule has no application if the failure to call the witness is satisfactorily explained or readily understood. The usual explanations are the absence of a witness from court and a reasonable explanation for not compelling the witness' attendance by subpoena. But failure by a party to call a witness likely to be friendly to the interests of the other party has been held sufficient to entitle a court not to draw an adverse inference from such failure. …
82 The conditions for the operation of the principle are those laid down in Payne v Parker [1976] 1 NSWLR 191, at 201, by Glass JA:
(a) the missing witness would be expected to be called by one party rather than the other,
(b) his evidence would elucidate a particular matter,
(c) his absence is unexplained.
83 In this case, I would have expected her mother and her aunt to be called by the Defendant, rather than by the Plaintiff; the evidence of each, on different matters, would elucidate matters to which reference has been made; and that the absence of each is not satisfactorily explained.
84 Accordingly, so far as is presently relevant, I draw the inference that the evidence of her mother would not have assisted the Defendant. In the circumstances, and without more, I am not satisfied, on the balance of probabilities, that there is, in fact, a legally enforceable debt owed to her mother by the Defendant.
85 Yet, this does not mean I should ignore the amounts proved to have been advanced by the Defendant's mother to, or on behalf of, the Defendant. Section 20 specifically refers to "financial …contributions made …by or on behalf of the parties to the relationship…". I propose to treat the advances proved, or agreed to have been made, as a financial contribution made on behalf of the Defendant: Powell v Supresencia at [56]-[57].
86 It is next necessary to attempt to determine the other contributions said to have been made by, or on behalf of, each of the parties.
87 I should note, in this regard, that it was submitted, on behalf of the Defendant, that the relevant contributions to be taken into account are those made in New South Wales. No authority to support the proposition has been cited. I do not accept the submission. Nowhere in s 20 is there a geographical element limiting the nature of the contributions to those made in New South Wales. Section 15, as stated, only requires "substantial contributions… have been made in New South Wales" which suggests contributions made elsewhere may be relevant.
88 In C v B [2007] 1 Qd R 212, McMurdo J considered the territorial jurisdiction of the Queensland equivalent of s 20. His Honour held that:
[14] … The term "property" and "financial resources" are used without any express territorial limitation, such as property within Queensland. Nor is the occurrence of some relevant contribution, including a financial contribution, made expressly relevant or irrelevant according to its connection with Queensland.
[15] Some territorial limitation upon the operation of Part 19 must be implied. Part 19 cannot be understood as applying to the world, and to confer potential rights and impose potential obligations regardless of any connection with Queensland. …
89 The same can be said about contributions referred to in s 20 and New South Wales.
90 In his oral evidence, the Plaintiff said that he paid for virtually everything during the relationship. He says he did this either by paying for specific things directly, or indirectly, by giving cash to the Defendant, which she used to pay for things. The Defendant denied that this was so.
91 Having read the evidence and heard the parties being cross-examined, it seems to me that it is more probable than not that, during the time the parties were living in New Zealand, the Plaintiff did assist the Defendant financially. He was receiving at least $400 per week and, no doubt, for some of the period (about 9 months), he had other sources of income, being from his selling items at the markets and otherwise. It is not possible to work out the total amount of his income. In addition, throughout this period, the Defendant lived in a property rented by the Plaintiff.
92 The Defendant, during this period also had some income, being child support ($80 per week), which she received from the father of her son, and income from social security benefits which she received. It is also likely that she used this income for family expenses.
93 In the course of cross-examining the Defendant, Mr Jackson, counsel for the Plaintiff, indicated that he intended to ask her questions about the receipt of social security benefits in New Zealand. Objection was taken by Mr Galvin, counsel for the Defendant, generally to questions on the topic, by reference to s 128 of the Evidence Act 1995, that is, on the ground that the answer might tend to prove that the witness had committed an offence under New Zealand law in the period that the parties were living in New Zealand as a couple (on her evidence between about October 2003 until April 2005) and under Australian law in the period that the parties were living in New South Wales (about October 2005 until April 2007). The apprehended offence was, in substance, in each case, that she received social security payments at the single rate whilst she was a member of a couple with the Plaintiff.
94 With the express concurrence of the parties, and because I considered that the interests of justice required that the Defendant should give evidence (see, for example, Cureton v Blackshaw Services Pty Limited [2002] NSWCA 187), I required her to give evidence on the topic, but granted a certificate pursuant to s 128 of the Evidence Act in respect of that evidence. (The parties, in fact, joined in requesting that the court require the evidence to be given and did not require reasons for the grant of the certificate.)
95 Mr Jackson submitted that I should ignore the Defendant's use of any income from social security benefits received in New Zealand, it being said that as she had engaged in a criminal activity, the court should disregard the use of funds obtained thereby in considering the respective financial contributions of a direct, or indirect, nature. Reliance was placed on Beattie v Reid [2002] NSWSC 1088; (2002) 31 FamLR 204 and Fletcher v Furnance.
96 The period about which the submission could be made, was, according to the evidence of the Defendant, in the period of about 12 months or so, that is between February 2004 and April 2005.
97 Whether or not I take the Defendant's contribution into account, in the circumstances, does not really matter, since I find that the Plaintiff's financial contribution to the day to day living, and other, expenses of the parties was more significant than that of the Defendant during the period that they lived together in New Zealand. I find that he paid the majority of their expenses in this period. I do not accept that he used all of his income for the purposes of the relationship, since, later in his cross-examination, he asserted that he put a "fair bit" of his accident benefits into his company, Hydraujoint.
98 I cannot say the same for the period after October 2005. The Defendant received the amount of about $600,000 in respect of her damages claim, in early 2006. I accept that, thereafter, she was able to, and did, contribute to the household expenditure. In this regard, I note that there is a reference to the parties "living off savings and investments" in the Progress Notes (3.04.07). Also, the Plaintiff, in cross-examination, said that he "continued to fund everything for a further six months until she did get paid out" (T21).
99 During the period between about February 2006 to September 2007, I think it likely that the Defendant's contribution to the living expenses was greater than that of the Plaintiff. In this period, his income appears to have been limited to receipt of accident compensation benefits of about AUS$386 per week. He accepts, also, that during this period, at least $20 to $50 per week was being spent by him on poker machines.
100 I do not consider that the money spent by the Plaintiff through gambling affects the assessment of the value of his contributions. The effect of his gambling was that he spent his own money so that it was not available to be applied to the family's needs. But that does not detract from the value of such contributions as he did make. However, the fact that he acknowledged that he spent money for that purpose does provide some additional support for acknowledging the contribution made by the Defendant following the receipt of the damages by her in early 2006.
101 One example of the major financial contribution by the Defendant appears to be in relation to the purchase of a car, in March 2006, for $27,000. The Plaintiff admitted that the Defendant had paid about $20,000 (she asserted that he paid only $5,000) towards the purchase price of the car. However, when it was sold in December 2007, he retained the whole of the proceeds of sale (of about $11,000). I treat this as the Plaintiff receiving about $7,500 more than he should have received, based upon the respective proportions of the purchase price paid by each of the parties.
102 I turn next to the contribution to the property and financial resources of the parties. I have no doubt that the whole of the purchase price of the North Sydney property was paid by the Defendant. In this regard, she purchased it in late 1996 or early 1997, for the amount of $205,000. Until her accident, in early 2002, she seems to have been able to financially look after herself, which includes making mortgage repayments. Thereafter, I accept that the Plaintiff did contribute to some of the mortgage repayments, although there was no attempt to quantify, precisely, the actual amount he paid, whilst they were living in New Zealand. Even assuming that he paid $80 per week, as he asserted, for the period between June 2002 and April 2005, this is about $10,500 for the whole of that period.
103 However, the Defendant paid the balance of the mortgage debt (about $176,000) from the amount awarded to her in early 2006. The sale price of this property was $325,000 gross.
104 I also accept that the Plaintiff did do some work maintaining the North Sydney property prior to its sale, but this seems to have been limited to preparing it for, and actually, painting, it once, and part of it twice. However, whilst it may have taken him three weeks to complete the preparation and painting, it was not a very big unit.
105 The Plaintiff was not cross-examined on his assertion that he managed various tenancy disputes in respect of this property, but it is impossible to determine what he did in this regard and the value if any of his contribution.
106 I do not accept that it was the Plaintiff who organised the sale of the North Sydney property. In this regard, I note that on the contract for sale, real estate agents were shown as the vendor's agent and that advertising expenses ($97.52) and commission ($3,575 incl. GST) was charged, and paid, by the Defendant. In addition, the Plaintiff did not have a specific recollection of showing the actual purchasers the home unit, which, one might think he would have done, if he had been the effective cause of the sale of the unit to them.
107 I note that from the gross proceeds of sale, the Defendant received almost $280,000, although there was deducted almost $27,000 which was paid to the Office of State Revenue (which was the stamp duty on the purchase of the Willoughby property).
108 In relation to the purchase price of the Willoughby property, the Plaintiff does not assert any financial contribution to its purchase price, or otherwise. (I have already noted that the stamp duty was paid out of the proceeds of sale of the North Sydney unit.)
109 There is a dispute about whether he did anything in respect of its maintenance, after the Willoughby property was purchased, and if he did, whether he was paid $5,000 for the work that he did. I am of the view that the Plaintiff was, probably, paid for the work that he did because his only income was his accident compensation at this time, whilst the Defendant had, by then received the proceeds of sale of the North Sydney property and also the damages amount.
110 Whether the Plaintiff was paid, or not, I am of the view that any work that he did on the Willoughby property was minimal.
111 I also find that the Defendant's mother assisted in paying for some of the renovations and the other expenses incurred by the Defendant in respect of the Willoughby property. The amount that I am satisfied that she paid is no less than $178,000. In the circumstances, I treat the amounts paid by the Defendant's mother as a financial contribution made on behalf of the Defendant to the conservation or improvement of that property.
112 In relation to the contribution as a homemaker and parent, the Plaintiff first said that he did all of the work around the home and in respect of the Defendant's child, James, (prior to the birth of Tegan) and then when Tegan was born, for both the children. When it was pointed out to him that, in his affidavit, he had referred to having done "most" of what was done at home, he said that he "could not remember" what the Defendant had done. He acknowledged only that the Defendant read books to Tegan.
113 The Defendant denied that the Plaintiff did all that he alleged, particularly between about June 2002 and April 2005. The difficulty I have accepting the Defendant's evidence about this issue relates to what the Defendant, herself, stated in the litigation in which damages were claimed.
114 In the Statutory Declaration declared on 16 August 2005, the Defendant stated:
"105. In May 2002, I underwent the scaphoid reconstruction surgery in Sydney.
106. During the post operative recovery, my need for assistance increased significantly as my right dominant wrist remained in plaster for several weeks.
107. My mother had taken time off work for several weeks to look after me.
108. On average, from the date of the injury until mid 2002, when I left for New Zealand, I received at least twelve hours of care per day from my mother and, to a lesser extent, my brother.
109. I have experienced and continue to experience the following difficulties with respect to my activities of daily living as a result of the injuries suffered in the accident:
a) Difficulty turning taps due to right wrist pain and weakness and some weakness in my left wrist, which I favour. Prior to the accident I was right handed.
b) Restricted movement in my right wrist and reduced strength in my right hand and right arm.
c) Restricted and painful movement in my right shoulder. Restricted ability to lift and carry. I have basically no strength at all in my right wrist.
d) Difficulty reaching and lifting items in/out of kitchen cupboards.
e) Inability to lift items in/out of oven and on/off stove top due to reported left and right wrist pain and weakness.
f) Difficulty with food preparation such as chopping vegetables due pain and weakness in the injured wrist.
g) Inability to do grocery shopping (due to fear of driving and difficulty lifting and carrying. Also, I am unable to cope with the grocery shopping due to my potential to have panic attacks in the store or whilst travelling home by myself.
h) Difficulty completing laundry and house cleaning tasks, due to right wrist pain and weakness and limited physical endurance.
i) Inability to look after my daughter properly due to pain and stiffness in my injured arm, limited physical endurance and reduced frustration tolerance.
j) I was unable to flush the toilet for several months.
k) Inability to wash hair properly due to numbness in my hand and arm.
l) Inability to cut food right through, such as children's school sandwiches.
110. Whilst living in New Zealand, my partner, Mr Stephen Kemp has provided me with a lot of care.
111. I have difficulty with fine movements. I am unable to hold a needle, do up buttons, or use scissors.
112. It is difficult for me to type. I am unable to rotate and apply strength when using my wrist or hold my arm in position for long periods due to numbness and pain.
113. It is difficult for me to cook, cut, chop, stir or hold pots. I am unable to grate cheese, cut pumpkin, mash potatoes, chop vegetables, lift pots, turn taps, lift dishes in/out of oven, use a knife in my right hand etc.
114. My wrist is worse in cold weather and with a change in weather.
115. We had a wood fire in New Zealand. I was unable to cut wood or carry wood.
116. I have difficulty cleaning. I am unable to mop the floor or do the scrubbing of the bathroom.
117. It is difficult for me to do the laundry and hang up washing.
118. I have difficulty opening jar lids and cans. I can't easily use a can opener.
119. I am unable to make my bed, as I am unable to lift the mattress to tuck the sheet under.
120. I am unable to drive due to stress and anxiety and fear.
121. It is difficult for me to look after my children.
122. In New Zealand, Stephen drove my son to and from school. He spent at least one hour each day doing so.
123. On average, Stephen provided at least four hours of care per day, seven days per week, over and above what he would have provided me in any event.
124. I believe I require at least the same level of assistance in the future, and more care if and when my condition deteriorates.
125. I also require assistance with handyman tasks and lawn and garden maintenance.
126. I am unable to live on my own without assistance."
115 In a "Schedule of Damages as at February 2005" prepared by the Defendant's solicitors, it was claimed that: