Fotherington v Fotherington Court of appeal 28/08/98 followed.
DECISION : Paragraph 89
Source
Original judgment source is linked above.
Catchwords
Fotherington v Fotherington Court of appeal 28/08/98 followed.
DECISION : Paragraph 89
Judgment (9 paragraphs)
[1]
New South Wales
Supreme Court
CITATION : McKone v Maretta [1999] NSWSC 438
CURRENT JURISDICTION : Equity
FILE NUMBER(S) : 4354/96
HEARING DATE(S) : 08/02/99, 09/02/99, 10/02/99, 18/03/99, 19/03/99
JUDGMENT DATE :
12 May 1999
[2]
PARTIES : Norma Jean McKone v Alfredo Maretta
JUDGMENT OF : Master Macready at 1
[3]
COUNSEL : Mr A. Blackman for the plaintiff
Miss P. Hanna for the defendant
SOLICITORS : Messrs Pogson Cronin, Lavington, NSW for the plaintiff
Messrs Tress Cock & Maddox for the defendant
CATCHWORDS : Family Law. Application for adjustment of parties' property interests under Defacto Relationship Act 1984. Application in respect of different periods. Application for leave under s18. Held only one period has to be for at least 2 yearts. ; Fotherington v Fotherington Court of appeal 28/08/98 followed.
DECISION : Paragraph 89
[4]
49
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
[5]
4354 of 1996 NORMA McKONE v ALFREDO MARETTA
JUDGMENT
[6]
1 MASTER MACREADY: This is an application under the Defacto Relationships Act for the adjustment of the parties' property interests. According to the plaintiff the parties lived together in a defacto relationship for a number of periods between late 1984 and the middle of 1995. The parties have no children of the relationship although each party had children from a marriage. There is a substantial dispute between the parties as to whether or not a defacto relationship did exist at any stage. There is also a substantial dispute as to whether or not there have been any financial contributions by the plaintiff.
2 It is useful to first set out the parties' contentions in relation to the existence of the defacto relationship in order to put into context the chronology of events which becomes important in the matter.
The Plaintiff's version of the relationship.
3 For the plaintiff's part she says that in late 1984 she was residing in rented accommodation at 17A Clissold Street, Ashfield. She had previously met the defendant when she went to work for him in his business. At all relevant times during the period in question up until late 1995 the plaintiff did work in a clerical capacity for the defendant in his business. There are disputes about payment of wages for some of the period. The plaintiff, who appeared to be the defendant's bookkeeper, had duties which included maintaining wage and other financial records. It was September 1976 when she commenced this work.
4 The plaintiff suggests that at some time prior to late 1984 they started seeing each other socially at which time a sexual relationship commenced. Towards the latter part of 1984 the plaintiff was living with her daughter, Melanie, at Clissold Street. Melanie was then engaged to be married in December of that year. According to the plaintiff the defendant moved in to live with her at Clissold Street after Melanie left the home upon her marriage. She says that he continued to reside there until September 1986 when the parties had an argument about his children. According to the plaintiff he then moved to the factory premises at Arthur Street, Leichhardt where he carried on his business. The defendant, according to her, and he concedes this, modified those premises to provide for some minor living accommodation so he could live in those premises.
5 In December 1986 the plaintiff purchased a flat at 4/15 Nagle Street, Liverpool. The purchase price was $41,000 of which $11,000 was paid by the plaintiff in cash and the balance was borrowed. The plaintiff concedes that after its purchase she moved all her furniture into the unit and commenced to live there. She says that in March or April 1987 she moved to the factory and started to live with the defendant at his premises in the factory. According to the plaintiff it was more convenient and saved her travelling. She still maintained the property at Liverpool which was not let.
6 In December 1990 the plaintiff exchanged contracts for the sale of the property at Liverpool which sale was settled in February 1991. The proceeds she retained and placed in an account in her own name. At the end of 1990 she moved with the defendant to his former matrimonial home at Haberfield. The next date of significance in the plaintiff's story is that in April 1992 following a dispute about marriage she moved out of Haberfield and rented a flat in her own name at 2/22 Prospect Road, Summer Hill. She furnished it with her furniture and took a six months' lease in her own name in respect of this property. While she was still living there and prior to her getting together again with the defendant she purchased a unit 11/26 Waterside Crescent, Carramar. She used the funds which she had obtained from the sale of the Liverpool unit and some borrowed funds from St George Bank. She moved in with the intention of living there. In September 1992 the plaintiff and the defendant when they were out one evening at the Apia Club won a cruise to the South Pacific. In that month they both went on that cruise.
7 According to the plaintiff in December 1992 she returned to live in the residence at Haberfield. The defendant had in 1988 resolved his financial affairs with his wife and one of the properties which he retained was the matrimonial home at Haberfield.
8 On 1 July 1995 the relationship, according to the plaintiff, ended. She sold her unit in Carramar and with the proceeds, later in that year, purchased a property at Holbrook in Southern New South Wales to which she moved.
The Defendant's version of the relationship.
9 The defendant's version of events was somewhat different. The defendant who was born on 26 September 1933 first had contact with the plaintiff in 1976. This was when she came to work for him. He says that there was social contact between them between 1982 and 1985 and that in 1985 they commenced a sexual relationship. He, according to his evidence, separated from his wife in 1984 when he was living at the matrimonial home at Haberfield. In mid 1985 he moved to a property which he and his wife owned at Brighton-le-Sands and remained there until early 1986. He then moved to the accommodation which he had built in his factory premises. The defendant says that in 1986 his son, Adrian, joined him in the factory premises and for that purpose he constructed an extra room there for Adrian. The defendant freely concedes that from 1985 the parties had a sexual relationship and that they would socialise and go out together. He concedes that the plaintiff would sometimes stay overnight after they had been out or, alternatively, he might stay overnight at the plaintiff's property.
10 On 3 March 1988 there was a property settlement and under that the defendant received the matrimonial home at Haberfield, the factory and one of two Callala Beach properties which the defendant and his wife had owned. Following the property settlement the defendant says that he and Adrian with minimal help from the plaintiff renovated the Haberfield property and that in late 1990 he and his son, Adrian, moved in to live. The defendant says that in late 1990, after the plaintiff had sold her Liverpool unit, she asked if she could move in to Haberfield. He agreed and in early 1991 she moved in to Haberfield. Apparently, according to the defendant, she wanted the bedroom that Adrian, the defendant's son was occupying which meant that Adrian left home. The defendant concedes that the plaintiff resided at Haberfield from February 1991 until April 1992. In April 1992, and in this regard the parties' stories are consistent, the defendant says that the plaintiff moved out and rented the flat at Prospect Street, Summer Hill. The defendant denies that thereafter they had ever lived together although he concedes that they continued to socialise together, occasionally stayed at each other's place and that they had a sexual relationship up until mid 1995.
11 One can see therefore the periods of cohabitation alleged by the plaintiff were as follows:-
Late 1984 to September 1986 at 17A Clissold Street, Ashfield.
March/April 1987 until late 1990 at the factory.
Early 1991 until April 1992 at Haberfield.
December 1992 until July 1995 at Haberfield.
12 There are thus two periods of separation, on the plaintiff version, namely, from September 1986 until March 1987 and from April 1992 until December 1992.
13 For the defendant's part he concedes that they lived in the same household from early 1991 until April 1992. He denies that it was even then a defacto relationship.
[7]
Law on the existence of a defacto relationship.
14 The question of whether or not the plaintiff and the defendant were living together as husband and wife on a bona fide domestic basis must be determined in accordance with the principles recently referred to by the Court of Appeal in Light v Anderson & Ors (1992) DFC 95120. They referred with approval to the decision of Mr Justice Kearney in Simonis v Perpetual Trustee Co Limited (1987) 21 NSWLR 677 where his Honour in dealing with the similar expression in the Family Provision Act 1982 after reviewing the authorities said at page 685 the following:-
"I consider that the expression under consideration constitutes a single composite expression of a comprehensive notion or concept and therefore has to be approached by considering the expression as a whole and not in several parts. This approach, as adopted by Powell J, was also the approach preferred by the Administrative Appeals Tribunal in Waterford's case (see 106). I consider that the factors referred to by Powell J, while not being regarded as a complete test, serve the purpose adequately in the present case to determine the question of eligible person. The factors indicated by Powell J are as follows (at 459)):
"1. The duration of the relationship.
2. The nature and extent of the common residence.
3. Whether or not a sexual relationship existed.
4. The degree of financial interdependence and any arrangements for support, between or by the parties.
5. The ownership, use and acquisition of property.
6. The procreation of children.
7. The care and support of children.
8. The performance of household duties.
9. The degree of mutual commitment and mutual support.
10. Reputation and 'public' aspects of the relationship."
15 His Honour also referred to the support to be gained for this approach from the report of the New South Wales Law Reform Commission concerning de facto relationships (LRC 36 (1983)). His Honour quoted the following passage in the report (at 459):
17.10. The application of the basic definition to the myriad facets of private personal relationships between men and women will inevitably be a matter of degree and proportion. The attributes and circumstances of such relationships differ greatly, ranging from what is little more than a casual liaison, to a continuing affectionate companionship, to a long term merging of lives and resources. Moreover, the nature and quality of a particular relationship may change and develop over time, making it sometimes very difficult to pin-point a time when the relationship should assume a new legal significance."
16 and said:-
"As I understand it, the parties substantially treated Powell J's approach as being appropriate to the circumstances of the present case."
17 Obviously, the list is not immutable and in particular cases other factors will have to be considered. The list is of use and it is convenient to discuss many of the incidents of the relationship between the plaintiff and the deceased under the headings set out above.
Credit
18 Before dealing with that it is necessary to deal with questions of credit in relation to the parties and some witnesses. Although at times the plaintiff appeared to give her evidence in a straightforward way I had a number of difficulties with her evidence that cause me to doubt its reliability and her truthfulness. In a number of areas the documents for which she was responsible portrayed quite a different picture from the case she tried to present to the Court. For example, her income tax returns consistently showed her home address as being at a place different from what she alleged in these proceedings was where she was living. For example for the period December 1992 to July 1995 she alleged that she was living with the defendant at his home at Haberfield. However, that address was not shown in her tax returns. In addition she did not disclose in those returns at the relevant times that she was living in a defacto relationship. Similarly in respect of an application to Social Security she showed her address at a place inconsistent with her story presented to this Court.
19 Another area where her evidence caused me disquiet was the inaccuracies in her witness statements. In particular her witness statement of 18 November 1997 as amended by her statement of 29 April 1998. They gave quite different versions of events to that given in her later statement in 1999 and in her oral evidence. Examples are:-
1. Her statements in paragraph 12A that the defendant gave her a ring to celebrate being together for eleven years. That was quite contrary to her oral evidence given in chief which was that the defendant gave her a ring and asked her wear it because he was upset at representatives who would call at the front office, talk to the plaintiff and occasionally ask her out believing that she was not married.
2. Her first statements failed to mention a period of separation.
3. When errors in the first statement were corrected in the second statement that statement still omitted to deal with another admitted period of separation.
4. Her dates in the first statement for the date on which she purchased the property at Liverpool were in error by two years.
20 These matters cause me real concern as to the reliability of the plaintiff's evidence. Later in this judgment I will deal a document (Exhibit 6) created by the plaintiff. My conclusions on the facts surrounding that document lead me to the view that the plaintiff was not truthful.
21 The defendant gave his evidence in a fairly straightforward way but he at times gave inherently improbable answers to a number of questions. For example, against the admitted background of the two parties on his case having had a sexual relationship from 1985 to 1995 when taxed about whether he was affectionate to the plaintiff he denied it. On being shown photographs showing him with his arm around the plaintiff his explanation was merely that that was the only time he had ever put his arm around the plaintiff. At other times when he was confronted with documents that clearly showed the plaintiff's address at his home at Haberfield he retreated into a claim that the plaintiff was at that stage blackmailing him by requiring him to write or show that address in the documents. There was no suggestion in the evidence prior to this time of there ever being any such conduct on the plaintiff's part. As the discussion later in this judgment will show when dealing with the evidence of the plaintiff and the defendant at times they have both taken up positions which are quite contrary to either the documentary evidence or what is inherently likely. I will treat the defendant's evidence with reserve as to its reliability and truthfulness.
22 The plaintiff's daughter and son-in-law, Mr and Mrs Horne gave evidence. I was impressed with both these witnesses whom I thought tried to give their evidence honestly and frankly. Unfortunately their evidence only touches a limited part of the area of dispute before me because in 1988 they moved to Holbrook and did not have contact with the parties except for that which I will refer to later in this judgment. The defendant's son gave evidence in support of his father's case. I am prepared to accept his evidence but bear in mind his age at the relevant times.
23 Mr Losurdo and Mr Vella, friends of the defendant, gave evidence. There is nothing in the way they gave their evidence which would lead me not to accept them. Unfortunately their evidence was in very general terms, was imprecise so far as dates were concerned and, accordingly, not of a great deal of assistance. Although Mrs Marino gave evidence of an association between the defendant and herself her evidence was given frankly and truthfully but cross examination demonstrated the period of their association was mostly likely during the period from September 1986 until April 1987 when, on the plaintiff's version, there was a separation between the plaintiff and the defendant.
24 I turn to deal with the question of whether there was a defacto relationship by reference to the points referred to above.
The duration of the relationship.
25 On each party's version the relationship is one which covered a substantial period of time. There was a period of at least 18 years when the parties were socialising together and prior to that the plaintiff had worked for the defendant for six years.
& 3. The nature and extent of the common residence and when a sexual relationship commenced.
26 It is hard to deal with this residence separately without also dealing with the third question as to whether or not a sexual relationship existed. On this aspect the plaintiff puts the commencement of the sexual relationship in 1981 and she said it continued until separation in the middle of 1995. She says that even during periods of separation the parties would still occasionally have a sexual relationship. The defendant also admits the continuance of the relationship up until mid 1995 but says that it did not commence until he received the dissolution application from his former wife in about August 1985. On the defendant's version he admits seeing the plaintiff socially from about 1982 and says that at that time he was married and living with his wife. He continued to do so until he separated in 1984 when he and his wife continued to reside in the same house notwithstanding separation.
Late 1984 to September 1986
27 The first period of the residence which is in dispute is the period from late 1984 until September 1986. At that stage the plaintiff was living at Ashfield in rented accommodation. She had been sharing that accommodation with her daughter since 1982 and according to the plaintiff the defendant moved in to live with her at Ashfield after her daughter married on 15 December 1984 and moved out of the house. The evidence of the daughter and the son-in-law, Mr Horne, is instructive. The plaintiff's daughter gave evidence that during 1984 the defendant came to the house with her mother and often stayed the night sleeping in her mother's room. This caused her daughter some concern and she informed her mother that she would not be happy if the defendant moved in while she was still living in the house. She had indeed met the defendant some years earlier. She was married on 15 December 1984 and immediately left on her honeymoon. When she and her husband returned some weeks later they were picked up from the airport and taken back to Ashfield. The plaintiff's son-in-law gave evidence that he, his wife, the plaintiff and the defendant, spent that night at the premises. He gave evidence that on that evening the defendant stayed with the plaintiff in the main bedroom. The plaintiff's daughter also said that on occasions when visiting Ashfield after she had been married, at her mother's direction, she went to the clothesline and took from the line clothes of the defendant and put them away in drawers in the plaintiff's bedroom. She observed the defendant's clothes in her mother's bedroom. I have earlier commented on the nature of the evidence given by the plaintiff's daughter and son-in-law and I see no reason not to accept their evidence of what happened in 1984 and in particular when they returned from their honeymoon and spent the night with the parties.
28 Also of note in this period is the fact that the defendant admits he put up a shade cloth in the back yard at Ashfield and stored under it some orchids which his parents had left him. According to Mr Horne he also maintained a vegetable garden at Ashfield. Given this evidence which I accept I think it is on balance likely that the plaintiff and the defendant lived together at Ashfield from late December 1984. The cessation of cohabitation appears to have occurred because of an argument between the plaintiff and the defendant about defendant's daughter, Leana. I also conclude that a sexual relationship existed from at least early 1984 if not earlier.
29 There is then a period of admitted separation on the plaintiff's part from September 1986 until March or April 1987. In that period she purchased a unit at 4/15 Nagle Street, Liverpool. The purchase of that was completed on 20 February 1987 and the plaintiff moved in to that unit with her furniture. She continued to own this unit until she arranged to sell it at the end of 1990 settlement taking place on 25 January 1991.
March/April 1987 to December 1990.
30 The next period of residence together on the plaintiff's evidence is between March or April 1987 until the end of 1990. She says that this came about because of the fact that she found the travel from work at the defendant's factory to Liverpool time consuming and tiring. One matter which is strange and has to be taken into account when evaluating where the parties lived is the fact that the plaintiff did not let her property at Liverpool during the period that she says she in fact lived with the defendant. Her move, according to her evidence, was that she moved into the factory premises at Hubert Street, Leichhardt. Those premises were in an area zoned for both commercial and residential purposes and the defendant had modified part of the factory to serve as living quarters for himself. There is no doubt that during this period the parties were together. There were visits to family and friends and, for example, at times the plaintiff and the defendant visited the plaintiff's children, her son in Albury and also her daughter and son-in-law at Holbrook. The defendant and his son at one stage went to Italy for a trip and the plaintiff met them on their return in Singapore where they holidayed before returning to Australia. When considering the general arrangements between the parties it should also be noted that by late 1988 the defendant had resolved his property dispute with his former wife and he had retained the matrimonial home at Haberfield. He sold some other properties to pay out his wife and she moved out of Haberfield and left it for him. Thereafter between 1988 and late 1990 the defendant and his son worked during weekends on renovations to the house and were assisted by the plaintiff. The defendant concedes that there was some assistance but the quality or extent of such assistance as the plaintiff alleges is not conceded.
31 One area of the evidence that was investigated in cross examination was the wages records which were maintained by the plaintiff for the defendant as part of her duties as bookkeeper. Those records showed the plaintiff's address as being either Ashfield, Liverpool her rented premises at Summer Hill or the property she purchased at Carramar. They did not show her address at Haberfield even for the admitted period that she lived there or the factory where she alleged she stayed with the defendant. Similarly the defendant's address was always shown as Haberfield apart from one period in 1985 when the address was changed to Brighton-le-Sands. This was another property that he owned. That address was changed back to Haberfield in mid 1998 no doubt once his wife had moved out and he had sold Brighton-le-Sands in order to pay out his wife. It seems to me that not much assistance can be gained from these records in terms of where people were residing. The addresses seem to be merely the formal or legal addresses of people at the property that they owned or leased and does deal with the defacto situation nor, indeed, did it need to deal with the defacto situation. The period at which the defendant's address is shown as Brighton-le-Sands does not even coincide with his evidence as to when he resided there. That evidence indicated that he resided there in early 1985 but the plaintiff puts him residing there prior to December 1984 when he moved in with her at Ashfield.
32 The defendant conceded that in this period with which I am concerned the plaintiff would stay with him over the weekends at the factory.
33 There was evidence given by Adrian Maretta the defendant's son about this period with which I am concerned. He says that in 1986 when he was 14 years old he moved out of the Haberfield home and went to live with his father in factory where the business was operated. He says that he would spend the week living with his father at the factory and would spend the weekends at his mother's home at Haberfield. He did observe the plaintiff staying overnight at the factory on occasions during the week and he also recalls her staying there on the weekends. One of the reasons he went to his mother's house in the weekends was to make room for the plaintiff in the very cramped accommodation at the factory. This evidence from the defendant's son is consistent with the defendant's story and there is no particular reason why I should not accept it. There was also evidence from the plaintiff's daughter and son-in-law that on Mondays the plaintiff and her daughter would meet at the Liverpool unit and go after dinner to a gym class. The son-in-law would drive his wife out to Liverpool for this purpose. The evidence is not clear precisely when this practice occurred. It was certainly prior to September 1988 when the daughter and son-in-law moved Holbrook from Sydney. In cross examination the son-in-law, Mr Horne that it was every Monday night after the purchase of the Liverpool property that this occurred. He was not asked specifically whether it continued up to September 1998 when they moved to Holbrook. That however was the flavour of his evidence. In these circumstances it seems to me that the plaintiff and defendant resumed their relationship in March or April 1987 and that their residence was such that they resided together during the weekends and sometimes during the week at Haberfield but for the majority of the week the plaintiff resided at the Liverpool unit while the defendant resided at the factory. This is consistent with the plaintiff leaving it furnished and not letting the unit.
December 1990 to April 1992
34 Towards the end of 1990 two significant events occurred. They were first the completion by the defendant of the renovations to Haberfield. All that remained at this stage was to renovate the kitchen. The other event was the sale by the plaintiff of the unit at Liverpool. It is clear on the evidence of both parties that the plaintiff moved into Haberfield at the end of 1990 or early in 1991 and that she shared that residence with the defendant until April 1992. At that time there was a dispute between the parties over the defendant's continuing refusal to marry the plaintiff. The plaintiff moved out and rented premises at Summer Hill for a period of six months.
December 1992 to July 1995
35 By September of that year the plaintiff had purchased the unit at Carramar to which she moved. Shortly after this occurred in late 1992 the plaintiff and the defendant were visiting a club where they won a prize which was a trip on a ship cruising the Pacific. They went on the cruise and, according to the plaintiff, when they returned she commenced to reside with the defendant at Haberfield. She says she remained there until 1 July 1995 and on the plaintiff's version the relationship ceased. The defendant's case was that she did not reside at Haberfield during this period from late 1992 until mid 1995. The position that the defendant took on this aspect tended to break down when he was confronted with a series of different incidences confirmed by separate evidence which showed that he and the plaintiff were living together at Haberfield at this time.
36 The first of these arose out of the fact that in April 1993 there was an Italian singer, Enrico Farina, who came to Australia and stayed with the defendant for some three days. That produced two cards which were sent from overseas addressed to Mr and Mrs Fred Maretta at 92 Kingsford Street, Haberfield. Faced with this the defendant conceded that the plaintiff was also staying there for two days when the singer and his manager were his guests. The next occasion was when the defendant's brother came from overseas and stayed with the defendant. Once again the cards after the visit were sent from the brother on his return addressed Mrs Norma Maretta. Faced with this the defendant again conceded that the plaintiff had been staying there at the time of his brother's visit. The next occasion was in April 1995 when the plaintiff's daughter and son-in-law came and stayed at Haberfield for five days as they had to attend a Sydney wedding. At that stage they had a young son, Tom. They gave evidence of the plaintiff being present and there the whole time and sharing a bedroom with defendant. In the mornings their own son would go in and share the plaintiff and the defendant's bed and play with them. This occurred again in late April prior to going overseas and again six months later on their return. Faced with this evidence, once again, for the third time, the defendant conceded that the plaintiff just happened to stay for a few days to look after her daughter and son-in-law. These accounts of the defendant are inherently improbable and there are other items of evidence tending to suggest that Haberfield was the address of the plaintiff at that time. For example, there were applications for temporary membership of clubs issued or filled in by the plaintiff when the defendant would use his membership to obtain temporary admission for the plaintiff. In them the plaintiff's address was shown as Haberfield. Also shortly prior to the final separation on 1 July 1995 a form for membership was signed by the defendant showing the plaintiff, Mrs Maretta, having her address at Haberfield. Overall I am satisfied that the parties lived together in a common residence between late 1992 and 1 July 1995 at the defendant's house at Haberfield notwithstanding that the plaintiff did not let her unit at Carramar.
[8]
LONG SERVICE LEAVE
STARTED 6.9.76 - 18.10.95
PAID FOR 10 YEARS = 9 YRS 1 MONTH
OWING = 7.87 WEEKS
= $2,361.00
HOLIDAY PAY = $1,050.00
LONG SERVICE LEAVE = $2,361.00
$3,411.00
WEEKS WAGE = $300.00
70 It will be seen in the middle of the document that there is a reference to having been paid some long service leave for ten years. That occurred when the plaintiff was getting enough money together to buy the unit at Liverpool. She arranged for the defendant to pay long service leave up to that time to help her with that purchase. However, what is obvious from this document is a calculation of entitlement to holiday pay based on figures shown in the "book" and figures for "cash". Also of importance is the week's wage of $300 which is what the defendant agreed she had been paid during the period. There is a clear calculation by her based upon the fact that she had been receiving wages partly in the book and partly by cash and in respect of cash no tax was deducted. The plaintiff's explanation when she was tackled with this document was totally unconvincing. It is worth noting the difference between what is in her first statement and that which appears in her second statement. In her first statement she said she was paid an award wage up until 1992 and thereafter at $170 per week. Her second statement, Exhibit A, paragraphs 20 and 39 and 40 and 44 apart from being internally inconsistent are deliberately vague. The correct situation is clearly shown in Exhibit 6, namely, that the plaintiff was paid wages partly or wholly in cash at $300 per week. No doubt this was to avoid problems with Social Security. The plaintiff continued receiving Social Security until towards the end of 1990 and has claimed a contribution from her alleged re-employment in January 1991.
71 The purpose of considering this matter carefully is, of course, to see whether in the earlier periods with which I am concerned with in the applications for leave, namely, December 1984 to September 1986 and December 1990 to April 1992 the plaintiff made some substantial contributions arising from lack of payment of wages to the plaintiff. There is no doubt in respect of the first period the records show she was paid a wage from the business at the rate of $300 and somewhat less in the earlier years. The wages records book shows her ceasing to receive a wage on 31 January 1990 and it recommences with her receiving on 1 April 1992 $176 a week gross which is about the time she left the defendant for the second time.
72 For the purpose of looking at the contributions in the period from January 1991 to April 1992 the plaintiff received a wage which I have found was $300 per week. One then has to look at that wage and see whether it was, for instance, below the award. This is a period when she was not alleging that she was doing substantial extra work in the factory. There is a Clerks' Award in evidence which applies to people, such as the plaintiff. There was a submission that as she was managerial it would not apply but I do not think her duties would have exempted her from the award. That award applies to different levels depending upon the responsibility of the person. Grade 1 is the most responsible and assuming this for the present purposes, one finds that the award wage from 9 February 1990 was $387.90, from 26 February 1991 $402.90 and from 16 September 1991 $413. For this period the plaintiff was paid $300 per week and accordingly the amount underpaid would be in the order of $105 per week for 15 months resulting in a sum of $6,933 gross. I say gross because, no doubt, the amount actually received would have been less because of tax deductions. However, given that she was not paying tax on this cash money there was a substantial benefit to her. A perusal of the wages book would indicate that the likely tax on $400 per week is in the order of $63 leaving a net loss of $37 per week. For 15 months this is a total of $2,404.
73 In these circumstances it seems to me, having regard to the contributions for the period, December 1990 to April 1992 that they could not be described as substantial and, accordingly, there would appear to be no reason why the plaintiff should be entitled to an extension of time. For the period December 1984 to September 1986 the plaintiff was paid the award wage and the same result applies to this period.
74 The above discussion is predicated upon of course the requirement that a proper construction of the legislation is that there needs to be a period of two years or the other specified matters before the Court will exercise its discretion. Before addressing the argument as to whether this is right I might mention the question of delay. Obviously the application is out of time. The plaintiff has said in relation to the period from April 1992 onwards she had not given up hope of the defendant and her getting back together. She did not learn about her right to make an application under the Act until 1996 which was well after the final separation in July 1995. The separation from September 1986 to April 1987 was less than two years and although not in a defacto relationship from April 1987 to December 1990 there was a serious relationship between the parties. In these circumstances I think that the explanation is sufficient.
75 The alternative way of looking at the question of deciding whether to grant leave is to approach it on the basis that one is not looking at a separate application for adjustment of rights under the Act for which a two year period should apply but one is considering whether the earlier period can be taken into account in a subsequent application. Section 18(2) refers to hardship and the failure to take into account a party's contribution for a period less than two years could amount to hardship. There is nothing in s 18 which would require these contributions to be "substantial" as is required s 17. The object of the Act is to adjust parties' property interests having regard to their contributions. Bearing this in mind I am of the view that there is no requirement that for a period to be taken into account it must be for at least two years provided there is a two year period upon which the application can be based.
76 Accordingly, I think that leave ought to be granted to bring these proceedings in respect of the two earlier periods of the parties' defacto relationship.
The parties' property
77 I will now consider the property of the parties at the commencement of the relationship and the property of the parties at the end. There was in fact no joint property of the parties and the evidence did not address in any detail the nature of the property which each had at the relevant times. So far as does appear it is clear that in 1987 the plaintiff purchased the Liverpool unit for $41,000 using a mortgage advance of some $30,000. She had furniture insured for $23,000 and no other assets. She did not drive and did not own a car. The situation in 1984 consisted of her having such furniture and some savings but no real estate. By the conclusion of the relationship she had the unit at Carramar which she sold shortly after July 1995 for $92,100 from which she received $65,999 after payment out of the mortgage. She applied $52,000 of that money towards the purchase of her property at Holbrook. She had some other furniture at that stage.
78 So far as the defendant's position is concerned, his property settlement was in 1988. As a result of that settlement he had the real estate at Haberfield which was his former matrimonial home, factory premises and one of the two properties at Callala Beach together with the business. The other assets he had had before then were sold and used to make payments to his wife. By the time of the conclusion of the relationship he had sold Callala Beach but he still had the factory and his former matrimonial home together with the business.
79 Although the evidence is in an unsatisfactory state it is probably of little importance considering the lack of joint assets. One has the contributions which I have identified above and I return to deal with those in slightly more detail.
Non-financial contributions
80 I will first deal with the non-financial contributions to Haberfield. The plaintiff described the work she did between February 1988 and the end of 1989 as follows:-
(a) Assisting with carpentry.
(b) Assisting and replacing kitchen.
(c) Making curtains.
(d) Planning and maintaining a garden.
(e) Painting and stripping wallpaper.
81 There is no detail of the amount of time spent and accordingly one can only gather this from the evidence of others such as, Adrian, who spoke of the work occurring over the weekend period, normally on Saturdays so far as the plaintiff was concerned. There is, of course, no evidence showing the what effect that work had on the value of the property. Clearly it was of assistance but it is very difficult for a Court to judge on the limited evidence the value of such assistance
82 Household contributions. I have earlier referred to these and it seems that there is very little in the way of household contributions given that there is a sharing of these. Even if one accepts the plaintiff on doing washing there is still not a substantial amount to take into account.
83 So far as household expenses are concerned, it seems clear on the evidence of the plaintiff that while they were at Haberfield the defendant paid all the household bills and paid for the shopping with the plaintiff purchasing her own personal items.
84 I return to the question of the payment of wages of $300 a week instead of the award rate. The award subsequently changed on 21 January 1994 to $421 for a Grade 1 clerk and 20 April 1995 to $429. The comments I have earlier made in respect of the earlier period when the plaintiff was receiving cash only rather than some money on which tax was being deducted apply again but with not the same force because it is clear she was paying some tax and only receiving part of it on a tax free basis.
85 The period from December 1992 until July 1995 is 2-1/2 years at $120 per week the short payment is likely to be in the order of $15,600 gross. On a net basis after allowing the benefit of cash the short payment is $5,980.
86 I turn to the question of the additional assistance at work. I have earlier referred to this evidence when the plaintiff said that during the last two years she was spending up to seven days a week at the business. Apart from secretarial and bookkeeping work she became a principal salesperson and helped with upholstery including selecting, ordering, cutting and sewing. She also alleges she did other jobs such as cleaning, helping feed timber into machinery and stacking timber.
87 There was evidence to suggest that during this period the value of the defendant's business was declining. He continually increased his overdraft as he made more losses. At the relevant time which was from 1993 to 1995 the business was reduced to two people, namely, the parties. For this reason I am inclined to believe the plaintiff on this point. Once again it is hard to judge the amount to which they should be recognised because of the paucity of the evidence.
88 When considering how these contributions should be recognised I bear in mind again, of course, the relevant periods which were as follows:-
November 1984 to September 1986 22 months
December 1990 to April 1992 16 months
December 1992 to 1 July 1995 2-1/2 years
89 Having regard to the whole of the evidence some of which I have referred to in this judgment and the contributions which are alleged I think the appropriate order is that the defendant pay to the plaintiff $50,000 by way of adjustment to the parties' property interests.
90 I direct the parties bring in short minutes to reflect any other necessary orders and I will hear argument on costs.
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The degree of financial interdependence and any arrangements for support, between or by the parties.
37 There is not a great deal in the evidence in relation to this area although the defendant conceded that when they were together he would pay for household expenses. He, of course, also paid expenses of his property.
The ownership, use and acquisition of property.
38 In this regard the parties' property has been kept completely separate. The plaintiff purchased the real estate which she owned in the name of McKone and when she sold the unit at Liverpool she simply invested her funds and did not use them for the purpose of the relationship. She ultimately used those funds again to purchase the unit at Carramar which was once again in her name, McKone.
39 The defendant had his properties in his own name and the parties each maintained their own separate bank accounts. There were no joint accounts or in fact any jointly owned property.
The procreation of children.
40 Not relevant.
The care and support of children.
41 Both parties had children by their marriages but given the ages of the children there was no great opportunity for there to be parenting contributions. The only one alleged is by the plaintiff in respect of the defendant's son, Adrian. She says that when she was living at the factory between 1987 and 1990 she would get his lunch in the morning before he went to school and helped him with homework. This was denied by the defendant's son. Given my acceptance of his evidence earlier as to the occupation I think there were only minor matters that would have been provided by the plaintiff in this regard.
The performance of household duties.
42 Once again, there is little evidence about this. The parties tend to agree that they would share household duties, including cooking, and they did regularly go out for meals. There was some dispute about the extent of washing. The plaintiff suggested she was doing the washing at Haberfield but the defendant maintained the contrary saying that he and his son did it at a laundromat.
The degree of mutual commitment and mutual support.
43 There is little evidence going to this aspect. The one matter which might have gone to it was giving the ring to the plaintiff by the defendant. The circumstances in which that was given as explained by the plaintiff in her evidence in chief in the witness box certainly refutes there being any evidence of commitment. Clearly she wore the ring from time to time as can be seen from photographs. The defendant completely denies purchasing or giving the plaintiff the ring.
44 There was a suggestion that the plaintiff made that the defendant was going to move his business to Vietnam and leave her to run the business in Sydney. That did not materialise.
Reputation and 'public' aspects of the relationship.
45 There is abundant evidence by way of photographs of the association between the plaintiff and the defendant in a public way. They show attendance at friends' weddings, attendance at clubs dancing together and attendance at various family functions. The photographs during the cruise show them as Mr and Mrs Maretta and I have already adverted to the evidence of the application to join the club and the temporary applications showing the plaintiff as Mrs Maretta. There was a deal of evidence from friends of the defendant where they indicated that the defendant had introduced the plaintiff, as Norma, but I do not think that is of great weight.
46 Such evidence that there is would tend to suggest that the plaintiff and the defendant were known as a couple together and at times as Mr and Mrs Maretta. Clearly they made no secret that they were together.
Termination of the relationship at different times.
47 Having dealt with all the individual aspects it is necessary, of course, to come to a view about whether the parties were at the relevant times in a defacto relationship. Although the parties kept their property separate I do not think in this case it is decisive. The defendant's acquisition of property occurred prior to meeting the plaintiff and the plaintiff's in part came from her savings. There seems to have been an involvement by both parties in family situations with the defendant's relatives and the plaintiff's children. The difficult period to conclude that there was a defacto relationship is the period from March or April 1987 to end December 1990. In my view the arrangements were merely in the nature of a weekend arrangement whereby the plaintiff would reside with the defendant over the weekends and occasionally during the week. Residence is an important part of living together in a relationship. In the present case there are clearly different periods of the relationship and one has to give consideration as to whether in any particular period there was a defacto relationship and whether it terminated at the end of a period of residence.
48 This raises the question of how a relationship of this nature does terminate. There have been a number of references in the cases to the problem which started to surface in Australia in cases under matrimonial legislation which provided for parties living separately and apart as a ground for divorce. An earlier case which is of use on the general principles is Main v Main (1978) CLR 636. At page 642 in the joint decision of the majority the following was said:-
"Although usually the existence of the conjugal or matrimonial relationship or consortium vitae means that the spouses share a common home and live in the closest association, it is not inconsistent with absences one from another, even for very long periods of time. It rests rather on a real mutual recognition by husband and wife that the marital relationship continues to subsist and a definite intention to resume the closer association of a common life as soon as the occasion or exigency has passed which has led to an interruption regarded by both as temporary.
In deciding whether there was at any specified date an existing matrimonial relationship, it is, I think, right to say that such a relationship does not end so long as both the spouses bona fide recognise it as subsisting, and in particular it does not end by reason of a separation brought about by the pressure of external circumstances such as absence on professional or business pursuits, or in search of health, or, it may be, even of pleasure. Marital intercourse, the dwelling under the same roof, society and protection, support, recognition in public and in private, correspondence during separation, making up as a whole the consortium vitae, which the old writers distinguish from the divortium a mensa et thoro, may be regarded separately as different elements, the presence or absence of which go to show more or less conclusively that the matrimonial relationship does or does not exist. The weight of each of these elements varies with the health, position in life, and all the other circumstances of the parties."
49 As indicated by the High Court, there are matters of degree of separation, and particularly in accordance with the passages I have indicated, separation by reason of illness or otherwise does not mean that the relationship has ceased.
50 The matter also arises in cases under the De Facto Relationship Act in the context of whether or not there have been several separate periods of relationship. This sometimes is significant because a period of relationship and a separation period might be before the commencement of the Act. The matter was dealt with at an early stage in Hibberson v George. That was a decision of his Honour Cohen J which went on appeal to the Court of Appeal. At the trial his Honour Cohen J had the following to say:-
"The use of the words 'living or having lived together as husband and wife on a bona fide domestic basis' suggest a degree of permanence which will not cease merely because one party separates for the purpose of going on holidays or going on business. Nor would it cease if, after an argument, one party moved out and stayed elsewhere for a short while or went home to his or her family, if there was an intention to return and if there was a reasonable indication of that intention. See the views of the Law Reform Commission in its report at para 17.18.
It must be a question of fact whether on separation one party intended that there should be an end to the relationship or whether the parties or either of them acted in such a way as would indicate that that intention existed. Once that intention or indication is found to exist then, as occurred in McRae v McRae (1967) 68 SR (NSW) 361, the relationship will only be renewed when the parties actually return and live together. It would not be sufficient merely to form an intention to enter into an agreement to resume life together."
51 The theme which his Honour there picked up was repeated in the words of Mahoney JA in Hibberson v George (1989) 12 Fam LR 725 at 740 where his Honour said of the statutory definition the following:-
"It is correct ... that the relevant relationship may continue notwithstanding that the parties are apart, for example on holidays ... There is, of course, more to a relevant relationship than living in the same house. But there is, I think, a significant distinction between the relationship of marriage and the instant relationship. The relationship of marriage, being based in law, continues notwithstanding that all of the things for which it was created have ceased. Parties will live in the relationship of marriage notwithstanding that they are separated, without children, and without the exchange of the incidents which the relationship normally involves. The essence of the present relationship lies, not in law, but in a de facto situation. I do not mean by this that cohabitation is essential to its continuance: holidays and the like show this. But where one party determines not to 'live together' with the other and in that sense keeps apart, the relationship ceases, even though it be merely, as it was suggested in the present case, to enable the one party or the other to decide whether it should continue. The learned judge, correctly, treated the matter as a question of fact."
52 McHugh JA agreed with Mahoney JA. Hope JA said he agreed with McHugh JA so that it would seem that this expression by Mahoney JA is a considered view of the Court of Appeal.
53 Since then the matter has been considered in a number of cases. In particular, Powell JA has dealt with this on a number of occasions. In Lipman v Lipman (1989) 13 Fam LR 1, his Honour had the following to say:-
"Although I accept that the concept of 'a de facto relationship' does not involve the notion that the parties to it must always be together under the same roof, so that such a relationship may continue to subsist notwithstanding the absence of one party from 'the matrimonial home', and although I do not discount the possibility that 'a de facto relationship' may properly be regarded as continuing notwithstanding that the parties may have separated only temporarily while they attempted to work through some difficulty which they had encountered in their relationship, I am quite unable to see how such a relationship can be said to continue in a case, such as this, in which the 'de facto husband' requires the 'de facto wife' to leave the 'matrimonial home' and installs another in her place. As Mahoney JA said in Hibberson v George 12 Fam LR at 740; DFC at 75, supra.: 'The essence of the present relationship lies, not in law, but in a de facto situation. I do not mean by this that cohabitation is essential to its continuance; holidays and the like show this. But where one party determines not to "live together" with the other and in that sense keeps apart, the relationship ceases, even though it be merely, as it was suggested in the present case, to enable the one party or the other to decide whether it should continue.' I therefore conclude that, in this case, there were two discrete 'de facto relationships'."
54 In Thomson v Badger 13 Fam LR 559, his Honour Young J had to deal with a case where, as does not infrequently happen, the relationship was one which was interrupted by absences on quite a number of occasions. His Honour referred to the cases to which I have referred and also referred to Australian National Railways Commission v Gerlach (1987) DFC 95/048. He used that as a reference to the fact that one must view the circumstances in which the parties ceased to live under the same roof in the context of their total relationship and he posed the question that one must ask in the context of the total relationship was whether there was a mere lovers' quarrel or a termination of the relationship. His Honour looked at the case in hand and described it as one:-
"... not being the happiest of relationships but was one which always continued on from where it left off. There was an incident, a separation, then usually a short time later the parties got together on the same basis again as before. In my view the proper determination of the factual question raised is that there was a de facto relationship which continued ..."
55 The matter has also been again referred to by Powell JA in Theodoropoulos v Theodosiou (1995) 38 NSW LR 424, where he referred, with approval, to the statement of Mahoney JA.
56 Also in Gazzard v Winders unreported Court of Appeal 23 July 1998, he once again quoted with approval the statement by Mahoney JA in Hibberson v George. In that case Beazley JA had the following comments to make about Hibberson v George:-
"I would comment in passing only that I do not endorse in any unqualified way the comments of Mahoney JA in Hibberson v George (1989) 12 Fam LR 725. For myself, I do not know that it accords either with reality or a proper construction of the Act to find that an interruption which, in a long relationship, may be no more than a hiccup, would have completely brought the relationship to an end. In any event, I can see no reason why a short interruption of the relationship for six weeks in a period of fourteen and a half years should prevent the court from taking into account the circumstance that this was a lengthy relationship of that order. Even if I am wrong, I consider ten and a half years to be a relationship of a lengthy duration."
57 In the light of those matters, I think clearly there is a strong weight of authority which supports the view expressed by Mahoney JA in the Court of Appeal in Hibberson v George. Of particular note is his view that:-
"...where one party determines not 'to live together' with the other and in that sense keeps apart, the relationship ceases, even though it be merely to enable the one party or the other to decide whether it should continue."
58 The qualification that perhaps emerges from what his Honour Young J was referring to in Thomson v Badger is that when one has a situation of frequent interruptions and then a return to the relationship that may, in fact, lead one, on a factual basis, to suggest that perhaps an expressed intention to leave the relationship was not the real intention and was more a pattern of behaviour. That is perhaps what Beazley JA was alluding to in her comments in Gazzard v Winders. But, in any event, she was also there more concerned with the more difficult circumstance as to whether the Court can take into account earlier periods of a relationship.
59 There are a number of times in this case when the question of when the relationship terminated arises. The first of these is in September 1996 and the evidences seems fairly clear that the parties had an argument and went their separate ways. In these circumstances any defacto relationship would have ceased in September 1996. Another time was in April 1992. The separation was, as I have indicated before, because the defendant refused to marry the plaintiff. There is no doubt that on occasions during the period of separation the parties had sexual intercourse and would see each other socially. However, they did not live together. The plaintiff has sworn that she did not regard the relationship as finally over. However, it seems to me that although she may have been contemplating some continuance this does not mean that the relationship has continued. As was pointed out by Mahoney JA it is a question of fact and I am of the view that the plaintiff determined not to live with the defendant and kept apart.
Bona fide domestic relationship - conclusion.
60 For the periods I have found that the parties were residing together I am satisfied that they were living together in a bona fide domestic relationship. More difficult is the period between April/March 1997 and December 1990 when there was nothing more than a weekend residence arrangement at the factory premises. In one sense having resumed their relationship one might regard it as a continuance of what was the former defacto relationship which existed between November 1984 and September 1996. However, given the circumstances of the residence arrangements I do not think it is appropriate to conclude that in this period from March/April 1987 to November 1990 that there was a bona fide defacto relationship. This means that the periods when the relationship existed and the length of the period are as follows:-
November 1984 to September 1996 22 months
December 1990 to April 1992 16 months
December 1992 to July 1995 2-1/2 years
Application for extension of time.
61 The matter next to be considered is whether or not all these periods of the relationship can be taken into account. Section 18 is in the following terms:-
"(1) Except as provided by subsections (2) and (3), where de facto partners have ceased to live together as husband and wife on a bona fide domestic basis, an application to a court for an order under this Part shall be made before the expiration of the period of two years after the day on which they ceased, or last ceased, as the case may require, to so live together.
(2) A court may, at any time after the expiration of the period referred to in subs (1), grant leave to a de facto partner to apply to the court for an order under this Part (other than an order under s 27 (1) made where the court is satisfied as to the matters specified in s 27 (1) (b) ). Where the court is satisfied, having regard to such matters as it considers relevant, that greater hardship would be caused to the applicant if that leave were not granted than would be caused to the respondent if that leave were granted.
(3) Where, under subs (2), a court grants a de facto partner leave to apply to the court for an order under this Part, the de facto partner may apply accordingly."
62 During the course of the hearing the plaintiff filed a motion for leave under s 18 (2) to apply for an order for the period between late 1984 and early April 1992. She has done this because of the decision of the Court of Appeal in Fotheringham v Fotheringham unreported 28 August 1998. In that matter I had at first instance concluded that in a case where there are two discreet defacto relationships then provided the application was made with two years of the termination of the last period that it was possible without making application under s 18 to take into account the contributions made in the earlier of the two defacto relationships. In particular I noted that s 18(1) concluded with the words, "2 years after the day on which they ceased, or last ceased, as the case may require, to so live together". On appeal His Honour Mr Justice Powell held that this approach was wrong. At pages 20 and 21 of his judgment his Honour held that the applicant for an order bears the onus of establishing that the condition precedent in s 18 has been fulfilled or alternatively bears the onus of obtaining an order of court granting leave to commence proceedings. It was for this reason that the plaintiff filed a notice of motion with a view to obtaining leave under s 18 in respect of the earlier period of cohabitation.
63 Under section 18(2) the Court may grant leave where the court is satisfied, having regard to such matters as it considers relevant, that greater hardship would be caused to the applicant if that leave were not granted than would be caused to the respondent if that leave were granted. Normally this is put on the basis that unless leave is given the plaintiff would not have the benefit of an adjustment which would take account of contributions made in the earlier period. However, in the present case the two earlier periods of cohabitation are each in respect of periods of less than two years. This raises the question of whether or not given this fact a court could, on the final hearing, in respect of the earlier periods of cohabitation, make an order bearing in mind the provisions of s 17. Absent two years a court can only make an order if there is a child of the parties, which does not apply in this case, or there have been substantial contributions for which the applicant could not be adequately compensated.
64 There is of course a question of construction which may have to be resolved because it has been submitted to me that if the earlier period is less than 2 years in duration then the Court would not grant leave under s18 because no order could be made in respect of that earlier period of cohabitation. In Fotheringham v Fotheringham the earlier period of cohabitation was more than 2 years so the Court did not have to consider this point. Putting this point aside at this stage I will first consider whether or not there are substantial contributions during the early periods which may not be recognised.
65 This requires one to look at the nature of the contributions which are advanced by the plaintiff in this case. In this regard it is important to put the general circumstances of this case in perspective. We are here dealing with a relationship between an older couple who have previously had children by their earlier marriages. Each of them has their own separate property and neither has contributed in a financial sense to the property which the other owned during the period of the relationship. So far as non-financial contributions are concerned, there is as I have indicated earlier been some very minimal parenting contribution by the plaintiff in respect of the defendant's son, Adrian. As far as household contributions are concerned both parties were working throughout the period of the relationship and they seemed to share household duties equally between them apart from some dispute about washing for a period. Another area of non-financial contribution was work that the plaintiff alleges that she did to assist the defendant and his son when they were renovating Haberfield between 1987 and 1990. Her work appears to have been some gardening work and assisting while the heavier work was done by the defendant and his son. It was only on weekends and part of the weekend and is for a period in which I have found that there was no relevant relationship.
66 The area of substantial dispute between the parties on contributions relates to one claim by the plaintiff. This claim arises out of the fact that she says that for a period she worked for the defendant for no wages and at a later time for reduced wages. In her first statement the plaintiff said that she received an award wage for her work in the business until 1992 from which stage she was only paid $170 per week. She said that the then correct wage was $400 per week and that from 1992 on she was working seven days a week. She says that in addition to performing secretarial and bookwork functions she assisted in production, sales, deliveries and cleaning.
67 By the time of trial the plaintiff's story in this regard changed. She said that her employment was terminated in early 1990. She was re-employed in January 1991 when she worked for no wages until April 1992. She produced a reference signed by the defendant, Exhibit H, dated 12 February 1990 which said that she was employed from 6 September 1976 to 31 January 1990. The reference said that her employment had been terminated due to slow trading. The defendant's answer to these allegations of no payment and reduced payments was quite simple. It was that, in fact, the plaintiff arranged for her wages to be paid to her in cash for the period 1990 to 1992 when she received no wages in the records of the company and after 1992 she arranged for her wages to be supplemented with additional cash drawings from the company so that she was paid $300 per week.
68 There is no doubt that the defendant's business was not progressing well. It had been going downhill slowly since 1984 and his indebtedness had been rising. However, it also turned out that the plaintiff at the beginning of 1990 happened to commence receiving Social Security payments.
69 The truth as to what was happening was probably best shown by a document of the plaintiffs which is Exhibit 6. This was a document in which she calculated her entitlements to long service leave and holiday pay once her employment was terminated in October 1995 some time after the termination of the relationship in July 1995. Because it is important I set out the terms of that document.
HOLIDAY PAY 42 weeks
Book Cash
$7,392 (divided by 12) $5,880 (divided by 12)
616 490
56 tax
$560
= $1,050.00