Ledwos v Angilley

Supreme Court of NSW|2001-07-16|Before: Horgan Bryson J, Evans Bryson J

CITATION : Ledwos v Angilley [2001] NSWSC 618 revised - 23/10/2001 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 4978 of 1999 HEARING DATE(S) : 16 & 17 May, 16 July 2001 JUDGMENT DATE : 12 October 2001

PARTIES : John Ledwos v Jeannine Edith Angilley JUDGMENT OF : Master Macready at 1

COUNSEL : T. Ostini-Fitzgerald for plaintiff B. Knox for defendant SOLICITORS : Calvin Nelson & Co for plaintiff Miller Goddard for defendant CATCHWORDS : Family Law. Application under Property Relationships Act 1984. Consideration of whether contributions before and after the relationship can be taken into account. - Held in circumstances of this case they could. Claim for an adjustment to reflect the rental value of one party's occupation of the home during the relationship not allowed. Consideration of the impact of domestic violence on homeamker contributions. Del Gallo v Fredericksen unreported 23 July 1999 Roy v Sturgeon (1986) 11 NSWLR 454 MacDonald v Stilsa [2000] NSWCA 302 Evans v Marmont (1997) 42 NSWLR 70 Jones v Grech [2001] NSWCA 208 Fotheringham v Fotheringham CASES CITED : Bennett v Horgan Bryson J unreported 3 June 1994 Walter v De Jong (1997) DFC 77659 Fuller v Taaffe (1998) DFC 77740 Foster v Evans Bryson J unreported 31 Oct 1997 Doherty v Doherty (1996) FLC 92-652 Marando v Marando (1997) FLC 92-754 Green v Robinson (1995) 36 NSWLR DECISION : Paragraph 55

1 MASTER: This is an application in which the plaintiff seeks two principal forms of relief. One of these is for relief under s 20 of the Property (Relationships) Act 1984. The plaintiff also claims relief by way of a constructive trust in respect of the contributions to the construction of a house on the defendant's land which construction occurred prior to the commencement of the parties' de facto relationship. A Judge of the court has ordered that the whole of the proceedings be determined by a Master. 2 The parties had a de facto relationship from 1989 until 29 June 1999. There is a dispute as to the precise starting date but there is no dispute that the relationship was a de facto relationship. There were no children of the relationship. 3 The parties commenced an exclusive relationship in about 1972 and this continued over the years apart from country postings until they commenced their de facto relationship in 1989. At that stage the plaintiff was 35 years of age and the defendant 33 years of age. In 1983 the defendant had purchased a vacant block of land at 16 Eldridge Street, Cherrybrook for $46,500. In 1988 a project home was built on the vacant land at Cherrybrook. The total cost of the home was $94,997.40 in respect of which the defendant says she contributed $61,726.56 and the plaintiff paid $33,270.84. There is a dispute as to the extent of these contributions to which I will return later. 4 The contract for the construction of the home was signed in April or May 1998. At this time the plaintiff had been living in a rented apartment at North Sydney and the defendant had been living with her parents at Pennant Hills not far from the block of land at Cherrybrook. It seems that the builder completed the house at Cherrybrook at the end of 1988 or early in January 1989. During the period of the relationship the parties lived in this house until the defendant vacated it on 28 June 1999. Thereafter as a result of an application made in these proceedings an arrangement was entered into under which the plaintiff purchased the defendant's share based upon a value of the property of $420,000. That purchase was completed on 18 February 2000 and pursuant to the arrangement the defendant received one half of the proceeds. The balance of the funds was invested pending the resolution of the remainder of the disputes in the present proceedings. 5 It is necessary to determine the conflict between the parties as to the commencement date of the relationship. It would seem that after completion of the house a number of people occupied the property. The plaintiff says he occupied the property from January 1989 and there is reference in the evidence to the defendant's sister and now brother in law occupying the property. 6 There is evidence that the defendant was on holiday from March until the end of May when she was overseas with her parents and sisters. When she returned she went to live with her parents for several weeks before moving to Cherrybrook in mid June. In these circumstances it seems to me that the parties commenced their relationship in June 1999. There is no suggestion in the evidence of any earlier periods when the parties lived as a de facto couple. 7 As the house at Cherrybrook was built before the commencement of the relationship it is necessary to decide whether these contributions can be taken into account. There is a debate in the cases on this point. I recently I dealt with this matter again 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." 8 There was an appeal in Del Gallo v Fredericksen [2000] NSWCA 293 to the Court of Appeal and in the 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. 9 The matter was briefly touched upon again by the Court of Appeal in MacDonald v Stilsa [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 regard to what was said in Evans v Marmont (1997) 42 NSWLR 70 concluded that a trial judge was entitled to take into account 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. 10 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. One 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 prargraphs 70 to 74 referred to Fotheringham v Fotheringham 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. 11 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 contributions made before the de facto relationship started 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. 12 Prior to agreeing on a house to be constructed the parties looked at a number of houses with a view to selecting one in which they would both live together after its construction. Clearly the payments which were made to the builder were made by both of them prior to the commencement of the de facto relationship. Since such payments were for the purpose of providing a house for their planned relationship, which eventuated, I would have thought that such contributions were closely connected to the financial and non-financial contributions made during the period. These later contributions included work carried out by the parties in establishing gardens and meeting the expenses of the house. 13 In any event it seems to me that where the parties agreed that the plaintiff's land would be used for the construction of a house for the express purpose of commencing their relationship, it would be unreal not to regard the provision of that land and the payment of construction costs as contributions to the parties' property for the purposes of s 20 of the Act. The provision of those items are directly related to the property to be occupied for the purposes of the relationship and the recognition of such contribution does not need to draw upon principles under the Family Law Act where reliance is often placed upon s 75(2)(o) of that Act. 14 The parties also approached the matter on the basis that I should regard the contribution costs as contributions under the Property (Relationships) Act 1984. They were at issue as to whether the land was to be regarded as a contribution. 15 Although there was a declaration sought that the defendant held 50 percent of her interest in the property upon a constructive trust for the plaintiff, this was not pursued in submissions as a week before these took place the Court of Appeal delivered judgment in Jones v Grech. The admitted joint endeavour between the parties, in the circumstances of this case, may have been terminated with attributable blame. See Bennett v Horgan Bryson J unreported 3 June 1994. 16 The other declaration as to a beneficial entitlement sought by the plaintiff relied upon the terms of settlement of an interlocutory application brought by the plaintiff. The motion sought to restrain the defendant, in whose name the land was still registered, from selling or mortgaging it, to extend the caveat, to give the plaintiff occupation (which he already had) and the return of certain personal property. 17 The orders made on the hearing on 15 December 1999 were to extend the caveat up until February 2000, order the transfer by the defendant to the plaintiff of the property at Cherrybrook in exchange for $420,000 by 21 February 2000. The motion was then stood over and the court noted the agreement of the parties set out in the order. The agreement basically contemplated that if a bank cheque was not provided then the defendant was thereafter at liberty to sell the property to a bona fide purchaser for value and there were certain agreements about the fact that the relationship permanently ceased on 28 June 1999 and to deal with uplifting of possessions. There was also an undertaking given by the defendant that upon receipt of the $420,000 she would cause $210,000 to be held in an interest bearing account in the name of solicitors on trust for the plaintiff and the defendant such sum not to be disbursed pending:- "(1) further order of the court or (2) prior written agreement of the respective solicitors for each party". 18 There were also agreements and undertakings which cover the circumstances if the $420,000 was not paid. However they are not necessary to consider as the $420,000 was paid. In the circumstances it seems to me that this is a mechanism which does not lead to any admission as to the plaintiff's beneficial ownership in the property. Property Relationships Claim 19 As has been made clear in many cases it is useful to note the property of the parties both at the commencement and conclusion of the period of cohabitation. In the present case the listing of their property makes it apparent that the plaintiff and the defendant acquired substantial other property from their savings which they continued to manage quite separately from the other partner. Indeed in this case the evidence has focused upon the Cherrybrook property and also the contributions made by the defendant to one of the plaintiff's properties which he inherited shortly after the relationship commenced. The parties have approached the matter on the basis that the only property that needs to be adjusted, taking into account all relevant contributions, is the Cherrybrook property apart from some items of personalty.

Property of the plaintiff at the commencement of co-habitation. Unit at 9/4-8 Arthur Street, Merrylands 100,000 1975 Celica car 4,000 Furniture and personal effects 13,470

Property of the defendant at the commencement of co-habitation. Unit 6, 2/4 Lachlan Avenue, North Ryde 130,000 Land at 16 Eldridge Street, Cherrybrook Purchased in 1983 for 46,500 1980 Sigma car 4,000 Bike 50 Furniture 460 Bank account 5,593 Liabilites Mortgage on unit 28,924 Property of the plaintiff at the conclusion of co-habitation. Commodore car worth approximately 7,000 Investments and cash 195,093.40 Boat and motor 6,050 Furniture and items of equipment 89,537 Home unit value not known

Property of the defendant at the conclusion of co-habitation. Cherrybrook property 410,000 Investments acquired during the period of the relationship 373,961.10 Unit at North Ryde Value not known Sigma Car, Value not known Bank accounts 18,111.11 Furniture 4,065 Liabilites Investment loans 155,169

Finding on financial contributions to the house 20 The parties are at issue as to the actual contributions towards construction of the property. The defendant suggests that she paid $61,726.56 and that the plaintiff paid $33,270.84. The plaintiff in his evidence in chief suggested that his contributions were in fact $35,270.61. He identified various entries in his bank statements as to those amounts. In the circumstances it seems that the appropriate contributions were as suggested by the plaintiff for his own contributions of $35,270.61. I do not accept the plaintiff's questioning of the defendant's payment of $27,900. He suggested that he gave a cash payment to her of $13,500. Given the nature of the plaintiff and his care with managing his finances it would be totally out of character and contrary to way in which the parties operated. Accordingly, one has the cost of the house of $96,997.17. 21 One of the substantial debates before me concerns how one should determine the amount of the initial contributions. The defendant for her part suggests that the land was something which she had purchased long before the parties had ever contemplated building a house on it. In these circumstances she suggests that one should take out of the equation the current land value of the property. The evidence before me would suggest that the property presently has a value of $410,000 and the parties are agreed that the present land value is $265,000. This would value the improvements at $145,000. The plaintiff for his part suggests that the correct approach is to also regard as a contribution the land which was brought in by the defendant when the decision was made to erect a house for the purposes of the relationship. The only evidence of the value is what the defendant paid for it in 1983, namely, $46,500. On this basis the proportional contributions by the parties are the plaintiff 25% and the defendant 75%. 22 Thus dealing with the house alone the plaintiff would be entitled to 25 percent of the present value of $410,000, namely, a sum of $102,500 and the defendant $307,500. 23 If one first excludes the land value from the adjustment process, the plaintiff is entitled to 36 percent of the present value of the improvements of $145,000, namely, $52,200 and the defendant 64 percent, namely $92,800. Crediting the defendant with the present land value the entitlements are the plaintiff $52,200 and the defendant $357,800. 24 In the circumstances where the parties decided to erect a house on the defendant's land for the express purpose of enabling them to commence their de facto relationship, it would be contrary to the facts to consider that the land was not contributed to the relationship by the defendant. Such contribution should thus be taken into account in the adjustment process. 25 The value at which the land is taken into account is a problem as the only evidence of value is that in 1983 of $46,500 and 2001 of $265,000. I am prepared to take judicial notice of the fact that inflation in relation to land value did occur but not necessarily in a straight line relationship between 1983 to 2001. 26 However, as has been said in many cases the adjustment process cannot be made exact so I will adopt a land value of $72,833 at 1989. This puts the contributions of the plaintiff at $86,100 and the defendant at $323,900. 27 The defendant also claimed that there ought to be an allowance in the adjustment process for the fact that she was the owner of the property and that the plaintiff has had the benefit of the occupation of the property up until the present time. The first thing to note on a factual basis about this claim is that the defendant herself gave evidence of a conversation she had with the plaintiff before she moved in when he asked whether he had to pay rent. She herself said, "no" apparently on the basis that one does not normally charge a person rent if one is going to live with them. She now advances a claim to receive a credit in the adjustment process of one half of the rental value of the property during the period of the relationship. There is evidence of the rental value and one half during this period is $91,330. It seems to me quite wrong to consider that an appropriate adjustment. It runs quite counter to what the parties themselves agreed was the basis of their on-going relationship when they commenced that relationship. The relationship was commenced with the full knowledge that the land was owned by the defendant and both parties contributed to the erection of the house. The matter was specifically adverted to by the defendant and the parties no doubt conducted their relationship on the basis that no such rent would be paid. There were benefits to both parties in this regard. To now charge a rental component in the adjustment process is contrary to the assumptions the parties themselves made for the purpose of their relationship. I also note that in Walter v De Jong (1997) DFC 77659 that this matter was referred to by Stein JA. At page 77661 he said:- "I add one further comment. The appellant submits that the Master failed to take into account his contribution of providing free accommodation for the respondent. It is not apparent to me that the Master did not take this fact into account, although it is far from self-evident that it is a contribution envisaged under s 20(1) of the Act. In any event, it does not appear that the fate of the appeal rests on this point." 28 Accordingly, I do not propose to take into account the rental value for the purposes of adjusting the parties' interest in the property for the period up to the date of separation. 29 After separation it will be recalled that in February 2000 the plaintiff purchased the property and accordingly there can be no basis for any adjustment after he had acquired it. The period from the end of June 1999 until February 2000 is a period of 33 weeks. The rental value was $400 per week making a total of $14,520. In Fuller v Taaffe (1998) DFC 77740 Rourke J discussed at length the De Facto Relationships Act and concluded that he could take into account contributions which were made after termination of the relationship. In that case His Honour accepted that the provision of accommodation for his former partner and child after the relationship ceased would be a contribution to be taken into account. Recently in Jones v Grech, to which I have referred, there was reference to the question of contributions made after the termination of the relationship. His Honour Mr Justice Powell maintained the view which he had advanced in Roy v Sturgeon (1986) 11 NSWLR 454. That view was not followed by Bryson J in Foster v Evans unreported 31 October 1997 or by Rourke J in Fuller v Taaffe. Mr Justice Ipp considered the authorities and disagreed with Powell J. He held that there was no difference in principle between contributions made before the de facto relationship to those made thereafter. He said that the court could have regard to both. He was also of the view that in respect of contributions prior to the commencement of the relationship that as a result of MacDonald v Stilsa, to which I have referred, those could in appropriate circumstances be taken into account. It seems to me that the reasoning of His Honour Mr Justice Ipp is correct and that I could have regard to the value of this contribution.

Other Financial Contributions 30 So far as the parties' income is concerned, it is agreed that their respective taxable incomes during the period was as set out in Exhibit 6. 31 The plaintiff's taxable income from 1989 to 1998 was $458,985 and the defendant's $606,171.

Contributions to household expenses 32 It seems that the plaintiff paid 90 percent of electricity and telephone accounts and a mobile phone. The defendant paid council and water rates on the property. There is a dispute on the cost of the purchase of groceries and fruit. The plaintiff claims he paid 90 percent of those costs. The defendant says that the plaintiff did not pay for the majority of these accounts. There is no way that the evidence allows me to resolve this dispute with certainly but it is not of great importance.

Furniture 33 It appears that the plaintiff had items worth about $11,867.50 which were brought into the relationship. The plaintiff had very few items, only a bed and some other items worth about $460. During the relationship the plaintiff seems to have purchased substantially all the furniture in the property which came to about $36,000. He also had some test equipment which he acquired for $51,975. There is no doubt these were acquired by the plaintiff and the defendant does not suggest she acquired them. On separation she took some items when she moved out which were not of substantial value. In the circumstances it seems to me that no particular order should be made in respect of furnishings and, indeed, none is sought. The defendant sought to suggest that because she did not charge the plaintiff rent that she made a contribution to his acquisition of furniture by allowing him to have the resources to buy the furniture. That I do not think is an appropriate approach given my comments above. As the plaintiff is retaining the test equipment and substantially all the furniture which he purchased no adjustment is called for in the exercise.

Indirect contributions to Corrimel. 34 There was a weekender which the plaintiff and his brother had an interest in at East Corrimel during 1996. There were a number of weekends and holidays spent by both parties doing work renovating that property. It was also used as a weekender. The defendant certainly helped in this process and apparently she did work which included removing wallpaper, washing down walls and ceilings and assisting the plaintiff with some of the work which he did on the property. Although it was not substantial I will take into account this contribution by the defendant to the plaintiff's property.

Further contributions to the Cherrybrook property after its construction 35 There are a number of contributions alleged by the parties in relation to the finishing of the Cherrybrook property. The plaintiff did a number of things to assist such as working on the site spreading road base and constructing gardens. There was also work done by the plaintiff in maintaining the Cherrybrook property. This was reasonably substantial as he appears to have been quite a handy person given the description of the work which he carried out. The plaintiff also paid for a lot of miscellaneous expenses in completing the house. There was assistance given during the building of the property by the defendant's father who was a mechanical and construction engineer. He gave instruction and advice on some matters connected with the construction including removal of water from pier holes and the like. This contribution, which is not substantial in terms of the cost of the house, has to be credited to the defendant. Overall the work done by the plaintiff in maintaining the house and his contributions to the actual finishing off of the surrounds of the house appear to be substantially greater than the contributions made by or on behalf of the defendant.

Homemaker contributions 36 Each party claims to have contributed in this regard. In this case there are a number of matters to be considered in respect of allegations of domestic violence which have been said to have been perpetrated by the plaintiff on the defendant during the course of the relationship. No claim for damages for assault is made but it is suggested that such violence can be taken into account in assessing these contributions. 37 Two cases under the Family Law Act, Doherty v Doherty (1996) FLC 92-652 and Marando v Marando (1997) FLC 92-754 are of note. 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." 38 Of interest is the reference to such conduct either increasing one party's contribution or diminishing the other party's contribution. 39 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 LR 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." 40 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." 41 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. 42 The first incident related by the defendant was one where she referred to an occasion when they were driving near Parramatta when the plaintiff lost his way. According to the defendant he got angry, stopped the car in James Ruse Drive, Parramatta, forced her out of the car and left her on the street. She had to walk to Parramatta and catch two buses to get home. The plaintiff's affidavit evidence was that he had stopped to read a map and that the defendant left the vehicle. He realised he was stationary, in a dangerous position and could not reverse so he decided to continue on. As demonstrated in cross-examination this was merely a contrived response. All he needed to do was to ask the defendant to get back in the car before moved off the first time and he could have safely got out of any dangerous situation. His explanation, particularly in cross-examination, was simply not believable. Accordingly, I accept the defendant on this matter. 43 The defendant gave evidence that there were occasions at their home when the plaintiff would shout and abuse her. According to the defendant he took care to ensure that the windows and doors of the residence were closed so that no one would hear. The plaintiff admitted to disagreements and increasing the tone of his voice in his affidavit evidence. He also admitted to having closed the sliding patio door and bathroom widow both of which were close to neighbours. In cross examination he admitted at times he would throw papers about as was alleged by the defendant. It seems to me having regard to the plaintiff's concessions that the defendant's version of abuse while windows and doors were closed to keep it from the neighbours is more likely to be correct. Accordingly, I accept the defendant on this matter. 44 In 1992 there was an incident recounted by the defendant when they were at East Corrimal working on the garage. According to the defendant the plaintiff became angry and violent over some water leaking in the garage and that he repeatedly hit and punched her in the upper body resulting in bruising. He demanded that she move out of the house but she first had to finish the garage and move out when the garage was finished. She was reluctant to do so and according to he defendant the plaintiff hit her across the mouth. The defendant produced a copy of the note that she was forced to write recording those matters. The plaintiff admitted that at East Corrimal he dropped something on the floor which then flicked up and, according to him, hit the defendant in the mouth. His recollection of this version in cross examination was non-existent and accordingly I was not satisfied that it was a genuine explanation. Accordingly, I am prepared to accept the defendant on this matter. 45 There was an incident in 1994 which the defendant recounts of having been abused by the plaintiff after which she went for a long walk to Pennant Hills. Ultimately her father drove her home at about 10 o'clock at night. The plaintiff became furious and, according to the defendant, refused thereafter to pick her up from the train station in the evenings when she was teaching as had been his custom. The plaintiff conceded that he no longer picked her up from the train station and he says it was simply because of his concern. However, quite clearly his reaction was one to punish her which he did. 46 During a holiday in Perth the defendant washed the plaintiff's shorts and the plaintiff noticed that a clip had come off. According to the defendant the plaintiff made her repeatedly search the laundry, the motel room and other areas and when she was unable to find it he made her take them back the next day to the store where it had been purchased to exchange it. The plaintiff gave an explanation of feeling unwell the next morning and having to sit down and that was the reason he let the defendant go back to the shop. Having regard to his cross-examination I think I would be prepared to accept the plaintiff on this matter. 47 In March 1998 the parties were on their boat on the Parramatta River when the engine broke down. According to the defendant the plaintiff repeatedly hit and punched her in the legs and upper body and abused her. The plaintiff said that he recalled the incident and that he was trying to repair the engine as quickly as possible because there was a radio tower transmitting nearby. He wanted to be away from any radiation levels. He admitted to having perhaps brushed the defendant on her legs while working with tools. In cross-examination he conceded he was stressed at the incident. This was in effect a slight further concession. It seems to me that it was more likely that the defendant's version is correct. With regard to these allegations of physical abuse, particularly in relation to the incident at Corrimal, it is useful to note that there was some evidence called from three friends of the defendant who gave evidence of having observed bruises on the defendant's arms and after their questioning of the plaintiff they were told by he defendant that she had been assaulted by the plaintiff. One friend recounted a conversation in which the defendant had reported being hit by the defendant. Another witness gave evidence of statements by the defendant that the slightest thing would set off the defendant who would fly into a rage without warning. The statements were made at a time before separation and, to my mind, support the nature of the relationship which has emerged in the more specific evidence before me. 48 The incident immediately prior to separation was one which, according to the defendant, was as a result having been hit and punched by the plaintiff. The night before she left, according to the defendant, the plaintiff was demanding that she fix up his paper work the next morning and take time off work to do so. She had already planned to go away next day for work. She did however start picking up the paper which the plaintiff had thrown off the dining room table. According to defendant, when she stood up the plaintiff started punching her on the shoulder and arms. It is apparent from a letter written by the plaintiff immediately after separation that he recognised the existence of his anger. He said that he was "in a downhill slide as far as his anger was concerned" and that he was going to attend counselling about his stress and anger. In these circumstances it seems that the defendant's account is more likely to be correct. Shortly after leaving the defendant obtained an Apprehended Violence Order against the plaintiff based upon the events to which I have referred. 49 It is hard to deal with all the minor incidents and whether in fact the plaintiff would call the defendant an idiot or a moron. What does appear over the course of this evidence is that the plaintiff does appear to be a person who was short tempered and angry. I am satisfied that there were a number of occasions some of which I have recounted when there was physical violence against the defendant. Clearly it reached the stage where ultimately the defendant did what she was advised to do by her friends, namely, leave the plaintiff because she could not take any more. 50 I have to consider the effect this behaviour. Clearly the defendant has conceded that after these episodes the parties would get back together and continue on with their relationship as before. However, it does seem to me that the concerns the plaintiff had about her safety made the relationship quite unpleasant. Certainly this aspect of the relationship must be taken into account when considering the extent of the homemaker contributions put forward by the plaintiff. 51 There was little evidence concerning homemaker contributions. The defendant appeared to do most of the cooking. The plaintiff said he did some cleaning on days' off but the majority would have been done by the defendant. She also did the majority of the laundry. These contributions were for a period of ten years. Given the violence I have referred to, no credit should be given to the plaintiff for his homemaker contributions which, in any event, were less than those of the defendant. 52 I need to take into account the other non-financial contributions to East Corrimel and Cherrybrook. Overall, these favour the defendant. The defendant's contributions of $14,520 for the occupation of the property by the plaintiff after separation has to be taken into account. 53 The sale of the house realised a fund of $420,000 of which the defendant has already received $210,000. The remaining $210,000 is held in a trust account pending this decision. On their contributions to this fund the plaintiff is entitled to $88,200 and the defendant $331.800. Deducting the rental value gives the plaintiff $73,680 and the defendant $348,320. 54 To these figures have to be applied an adjustment to take account of the plaintiff's homemaker contributions and parties' other non-financial contributions. 55 An appropriate order to take account of these would be for the remaining fund of $210,000 to be applied as to $60,000 to the plaintiff and $150,000 to the defendant together with any interest accrued in appropriate proportions. 56 I will hear argument on costs and direct the parties to bring in short minutes.

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Judgment (19 paragraphs)

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Cases Cited (8)