Messias v de Barros

District Court of NSW|2013-05-24|Before: Mr J

Background 1In 1999, Wilson de Barros owned and operated an information technology business though a company called BITS International Pty Limited ("BITS"). Although based in New South Wales, Mr de Barros often travelled internationally for work. He also regularly visited family in South America. He owned an apartment in Consett Avenue, Bondi and also owned a one-third interest in an apartment at Ramsgate Avenue, Bondi. 2Nailse Messias was visiting Australia from Brazil as a tourist in 1999. She met Mr de Barros. She was 37 and Mr de Barros was 38. At some date in 2000 Ms Messias and Mr de Barros commenced a de facto relationship. 3At that stage Ms Messias had overstayed her visa and was thus illegally in the country. She had no assets of any significance. She had previously stayed with her sister in an apartment and she did casual cleaning work from which, when she worked, she received approximately $270 per week cash. 4Mr de Barros lived in a leased two-bedroom apartment in Bondi. After spending an increasing amount of time staying with Mr de Barros at his apartment, Ms Messias moved into the apartment with Mr de Barros in 2000. 5In August 2000, the parties arranged for Mr de Barros' name to be added to Ms Messias' St George Bank account. At that time the account had a negligible credit balance and Ms Messias retained the only ATM card capable of accessing the account. One of the purposes of the joint account appears to have been to assist Ms Messias to regularise her residency in Australia. 6Also during 2000 Mr de Barros was in the process of purchasing a property in a place called Florianopolis in Brazil. The purchase was completed in February 2001. There was some evidence that the contract may have been entered as much as a year earlier, with completion delayed because the property was a deceased estate, but this evidence was less than satisfactory. I accept that Mr de Barros made some payments in respect of the purchase price in 2000. 7In 2001, Ms Messias' immigration problems intensified, resulting in her having to return alone to Brazil urgently in July 2001. She remained there until mid-2002, when she returned to Australia on a ticket purchased by Mr de Barros. 8Since that time, Ms Messias has lawfully resided in this country. In about March 2003, Ms Messias secured more regular cleaning employment. Her wage was deposited into her account from March 2003 until June 2007, apart from two periods together totalling a little over a year. Her income when working was generally between $400 and $600 per fortnight. 9It was common ground that in the period August 2000 until December 2007, Mr de Barros and Ms Messias lived together in a de facto relationship in an apartment leased by Mr de Barros. Ms Messias gave evidence that the de facto relationship started a little earlier and continued later than those dates and I will return to this matter. 10For this period from August 2000 until December 2007, Mr de Barros was travelling overseas for about 27 per cent of the time. In addition, Ms Messias was in Brazil for about a year in 2001 and 2002, as already indicated, and for most of that time was apart from Mr de Barros. 11In the result, the parties were physically together for about four and-a-half years of that period of almost seven and-a-half years, although there were regular telephone and email communications between them during those periods apart. 12The relationship deteriorated in late 2007. From early November 2007, Mr de Barros took a number of business trips to New Zealand, returning shortly before Christmas. In late January 2008, he departed for Brazil and remained there until mid-May 2008. 13When Mr de Barros was away Ms Messias lived in the apartment alone. Communication between Ms Messias and Mr de Barros after November 2007 was infrequent and less affectionate than previously. When Mr de Barros returned from Brazil in May 2008, he stayed at the apartment from May to November 2008. The parties disagreed as to whether the de facto relationship continued in that period. 14In any event, Mr de Barros again departed to Brazil at the end of November 2008 and did not return until early April 2009. Ms Messias contends the de facto relationship ended with Mr de Barros' departure. She remained in the apartment until late March 2009, allowing boarders to stay in the spare room to help defray the cost of the rent. After she moved out, Mr de Barros returned in April 2009 and continued to occupy the leased apartment.

Credit 15There were problems with the credit of both witnesses. Both signed statutory declarations in 2001, shortly before Ms Messias' departure to Brazil. The purpose of those statutory declarations was to assist Ms Messias' attempt to remain in Australia. 16Both statutory declarations asserted a de facto relationship commencing in April 1999, a fact which neither party asserted before me. Understandably, neither party sought to make much of the falsity of the other's statement. 17I infer that each party was willing to exaggerate the duration of the relationship and mislead the immigration authorities in an attempt to resist Ms Messias' compulsory departure in July 2001. As events transpired, the attempt failed. 18However, on the evidence before me, this matter seems more adverse to the credit of Mr de Barros than to Ms Messias. He is a professional person, articulate and entirely comfortable with the English language. He specified in precise terms that the date of 10 April 1999 was the "date de facto relationship commenced" and he signed the statutory declaration on 1 June 2001 under a warning about prosecution and penalties for the provision of false information. 19On the other hand, Ms Messias even now does not speak English and has no professional training. Her statutory declaration was not so plainly expressed about the commencement of the de facto relationship and was made on 12 July 2001 at Mascot, indicating it may have been made at the airport in circumstances of her imminent departure. Whether she was given any explanation about the reference in the document to penalties for false statutory declarations was not explored. 20The primary attack on Mr de Barros' credit related to his failure to frankly declare his assets. This attack was well founded. In a financial statement dated 11 April 2012, Mr de Barros confirmed in his affidavit that he had "an obligation to make full and frank disclosure of [his] financial circumstances to the Court" and that he had "no income, property or financial resources other than as set out in the document". 21He recorded that the funds he held in financial institutions totalled $5,856, which was a gross understatement of the true position. He failed to disclose his interest in his company, BITS, an interest of substantial value. When bank statements revealed greater credits, Mr de Barros exhibited a willingness to concede whatever was shown by the document but no more. He was not willing frankly to disclose matters concerning his bank balances in accounts where no statement of account was in evidence. 22As an example, he conceded that he had transferred $247,000 from his Commonwealth Bank account to ING as shown in the Commonwealth Bank statement. No ING statement was ever produced and he was unwilling to identify the precise balance of the ING account, other than suggesting it was about $250,000. 23Ms Messias' credit was also attacked. Whilst Mr de Barros sought to minimise his assets, Ms Messias sought to minimise his contributions. In evidence, Ms Messias denied that the defendant paid $7,300 towards an apartment in Maceio, Brazil, although the bank records are quite clear and his contribution was not disputed in submissions. 24Ms Messias also gave evidence that all the money she received from Mr de Barros was repaid. No document evidenced repayment and ultimately no submission was made that the monies provided were repaid. 25In these circumstances, I have some preference for the evidence of Ms Messias, but not on matters concerning the financial support provided by Mr de Barros. 26I have tended to adopt the approach of Brereton J in Sharpless v McKibbin [2007] NSWSC 1498 at [34], where his Honour stated: "The safer approach is not as a matter of course to prefer the less unsatisfactory evidence" of a particular witness, "but to proceed on the basis that the truth lies somewhere between the position of each of them". 27I have preferred the documentary record to the evidence of the parties where it is relevant and available.

Law and authorities 28The plaintiff claims an entitlement arising under the Property (Relationships) Act 1984 ("the Act"). The relevant provisions of the Act include the following: "4 De facto relationships (1) For the purposes of this Act, a de facto relationship is a relationship between two adult persons: (a) who live together as a couple, and (b) who are not married to one another or related by family. (2) In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as may be relevant in a particular case: (a) the duration of the relationship, (b) the nature and extent of common residence, (c) whether or not a sexual relationship exists, (d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties, (e) the ownership, use and acquisition of property, (f) the degree of mutual commitment to a shared life, (g) the care and support of children, (h) the performance of household duties, (i) the reputation and public aspects of the relationship. ..." "5 Domestic relationships (1) For the purposes of this Act, a domestic relationship is: (a) a de facto relationship, or (b) a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care. (2) For the purposes of subsection (1) (b), a close personal relationship is taken not to exist between two persons where one of them provides the other with domestic support and personal care: (a) for fee or reward, or (b) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation). ..." "14 Applications for orders under this Part (1) Subject to this Part, a party to a domestic relationship may apply to a court for an order under this Part for the adjustment of interests with respect to the property of the parties to the relationship or either of them or for the granting of maintenance, or both. ..." "18 Time limit for making applications (1) If a domestic relationship has ceased, an application to a court for an order under this Part can only be made within the period of 2 years after the date on which the relationship ceased, except as otherwise provided by this section. (2) A court may, at any time after the expiration of the period referred to in subsection (1), grant leave to a party to a domestic relationship to apply to the court for an order under this Part (other than an order under section 27 (1) made where the court is satisfied as to the matters specified in section 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. ..." "20 Application for adjustment (1) On an application by a party to a domestic relationship for an order under this Part to adjust interests with respect to the property of the parties to the relationship or either of them, a court may make such order adjusting the interests of the parties in the property as to it seems just and equitable having regard to: (a) the financial and non-financial contributions made directly or indirectly by or on behalf of the parties to the relationship to the acquisition, conservation or improvement of any of the property of the parties or either of them or to the financial resources of the parties or either of them, and (b) the contributions, including any contributions made in the capacity of homemaker or parent, made by either of the parties to the relationship to the welfare of the other party to the relationship or to the welfare of the family constituted by the parties..." 29The power in s 20 is to be exercised on what seems to the Court to be just and equitable, having regard to the contributions specified. Thus, an order adjusting property is not automatic: see Prior v Brown [2011] NSWSC 1006 at [37]. 30In the course of submissions, the parties have referred me to a number of decisions. I propose to refer to some of the principles that arise out of those decisions. 31In Evans v Marmont (1997) 42 NSWLR 70 at p 79, the Court of Appeal decided: "What is involved in cases such as the present is the making of an order for the adjustment of interest with respect to the property of the de facto partners or either of them. The reference to 'adjustment' of property interest does not sound like an invitation to engage in an unbounded exercise in distributive justice." 32In Separovich v Ferrao [2011] NSWCA 180, Beasley JA stated at [37]-[39] in respect of what has been termed "an holistic value judgment", see Burgess v Moss [2010] NSWCA 139: "However, that 'holistic value judgment' is the final step in the process of arriving at an order, being the just and equitable adjustment of property, having regard to the contributions identified in s 20. Before the court can make that final determination, it is necessary to identify and value the property in respect of which it is open to the court to make an adjustment and to identify and value the contributions that are being taken into account... [38] The authorities recognise that notwithstanding that the court exercises a wide discretion under s 20, a mathematical calculation of the contribution of the parties is of assistance in finding and testing conclusions as to what is just and equitable and in promoting transparency and consistency in decision-making... [39] The discretionary considerations that may influence and/or determine the ultimate order made depend upon the particular circumstances of the case." Her Honour made reference to Bilous v Mudaliar [2006] NSWCA 38 at [63]. 33In Ducker v Smith [2011] NSWCA 212, Hodgson JA stated: "[2] I think it is desirable that, in Property (Relationships) Act cases, there generally be clear findings as to (1) the assets of the parties at the beginning of the relationship, at the end of the relationship, and at the time of the hearing; (2) the financial and non-financial contributions of the parties during the relationship and, where relevant, after its end; and (3) the equality or inequality of those contributions, giving reasons, particularly in cases where significant inequality of contributions is found (dealing with the issue of whether financial and non-financial contributions balance out). [3] This is not because the result in such cases follows mathematically from such findings. Plainly it does not: the Act requires a holistic value judgment in the exercise of a discretionary power. However, I think that to make such findings and to give such reasons promotes transparency and consistency in decision-making." 34In Prior at [64] - [66], Hallen AsJ stated: "[64] A court may award the capital appreciation of a property introduced into a relationship by one of the parties either to that party, or to each of the parties in a certain proportion. That issue has been considered in a number of cases including Burgess v King [2005] NSWCA 396 ; (2005) 64 NSWLR 293, in Howlett v Nielson; Kardos v Sarbutt and in Bilous v Mudaliar. [65] It should not be assumed that just because there was a relationship and one party was the proprietor of property which increased in value because of the natural increase in value of properties in the area, and so at the end of the relationship that party's assets are proportionately greater when compared with the other party's to the situation at the start of the relationship, that the person with the asset needs to have his, or her, rights adjusted downwards: Burgess v King [2005] NSWSC 231 at [9]. [66] Yet, in Burgess v King, on appeal, Hodgson JA (with whom Mason P and MW Campbell A-JA agreed) at 298, held that a party who had made a particular contribution to the acquisition of a property was entitled to share in the capital appreciation of the property over the course of the relationship. In other words, the prima facie position is that the parties should participate in the capital appreciation of an asset of the relationship in accordance with their initial contributions to the relationship." 35The learned associate justice also decided in Prior that four years and ten months was "on any view...not a long relationship". 36Amongst my review of these and other decisions to which reference was made, I have found most assistance from the decision in Sharpless. This was the only decision I was able to locate where one party was solely responsible for bringing the assets of the parties into the relationship and contributing the income of the relationship and there was apparently no common venture between the parties to secure, maintain or increase the assets of the parties or produce an income. 37In Sharpless, the capital growth of assets over the period of the relationship was taken into account. The Court regarded the defendant as having had assets of $540,000 at the beginning of the relationship and at the time of trial the value of the property of the parties was $1,512,240, an amount somewhat less than the value of the assets at the conclusion of the relationship, some three years earlier, being about 10 years after the relationship commenced. 38Thus, over a period of 10 years, the value of the parties' properties in Sharpless had increased threefold by an amount of about $1,000,000. Brereton J found that there was a domestic relationship for a period of 10 years, although only for the initial three years was there a de facto relationship. His Honour concluded that the subsequent seven years were properly regarded as a "close personal relationship", which was nevertheless a "domestic relationship" under the Act. 39For the first six of those ten years (see [102]) his Honour regarded: "Any modest contribution [by the plaintiff] was offset if not outweighed by the benefits he received [from the defendant]". 40However, in the final four years, the plaintiff in Sharpless managed the affairs of the defendant. That management "not only failed to enhance but significantly reduced [the defendant's] property". However, his Honour concluded that that contribution called for "some modest recognition under s 20", and ultimately found an entitlement of $60,000 in the plaintiff.

Commencement of de facto relationship 41Ms Messias was adamant that the relationship commenced in February 2000 when she said she commenced living with Mr de Barros full-time. Mr de Barros stated in his affidavit that the de facto relationship commenced in mid to late 2000 when he and Ms Messias commenced to live together. At one stage in oral evidence, Mr de Barros said that the parties "commenced living together in 1999". 42During the hearing, he sought to particularise the date of "mid to late 2000" as August 2000, which was the date when his name was added to a bank account previously in the name of Ms Messias alone. 43In a caveat lodged in November 2009, Ms Messias' solicitor identified the commencement date as February 1999. Ms Messias says this was when the parties met. Mr de Barros asserted that the parties met in "late 1999". 44I have already referred to the immigration declarations. In his declaration, Mr de Barros said he met Ms Messias on 13 February 1999, a fact that supports Ms Messias' evidence and is inconsistent with his assertion of meeting in late 1999. 45In all these circumstances, Ms Messias' evidence is to be preferred. Her evidence finds some support from Mr de Barros' oral evidence that the parties commenced living together in 1999 and also from the statutory declaration in 2001, which refers to meeting in February 1999. Ms Messias' evidence is specific as to the month when the parties commenced living together whereas Mr de Barros' is in general and inconsistent terms of "1999", "mid to late 2000" and "late 2000". I do not regard the date of Mr de Barros' name on the joint account as determinative of the date of commencement of the de facto relationship. 46Accordingly, I find that the de facto relationship commenced in February 2000.

Conclusion of de facto relationship 47The date the de facto relationship terminated was also a matter of dispute. The caveat lodged on behalf of Ms Messias asserts that the parties "lived as husband and wife" until December 2007. Ms Messias accepted that the caveat was lodged on her instructions, although she submitted that her solicitor was mistaken. She asserted that her solicitor did not believe in her case. I find this explanation of the statement or the caveat to be unconvincing. 48Ms Messias also accepted that the relationship deteriorated significantly in late 2007. Her father passed away in September 2007. She was very critical of Mr de Barros for not supporting her by going away at that time. Some of these absences were relatively short business trips to New Zealand in late 2007 before a more lengthy departure to Brazil at the end of January 2008. 49The parties corresponded less frequently after November 2007. Whilst Mr de Barros was in Brazil during the first half of 2008 Ms Messias in correspondence addressed Mr de Barros with such terms as "Mr Wilson" and "soltero", a word she conceded was Portuguese for "bachelor". This language supported the submission that the parties were no longer a couple. 50In her first affidavit, Ms Messias made no reference to any difficulties in the relationship in late 2007 and indicated that the relationship continued until March 2009, despite Mr de Barros' absence. However, in her second affidavit, she accepted that the parties had "a break" in the relationship, although not "a break up", from December 2007, even though Mr de Barros did not leave for Brazil until the end of January 2008. 51When Mr de Barros returned, he said the parties slept in separate rooms from May to November 2008. Ms Messias denies this. 52In these circumstances, with some hesitation, I am inclined to rely on the date stated in the caveat. However, the parties did maintain a common residence, with each providing domestic support and personal care and thus, the relationship in 2008, appeared to satisfy the elements of a close personal relationship as defined in s 5(1)(b) of the Property (Relationships) Act 1984. 53Accordingly, I find that the domestic relationship under s 21 of the Act continued until December 2008. But in view of the contents of the caveat, the undisputed difficulties of the relationship from December 2007 and in the absence of any evidence from others, such as Ms Messias' sister, that the parties were reputed or appeared in public to be a couple throughout 2008, I find that the de facto relationship ended in December 2007. 54Accordingly, the parties were in a domestic relationship for almost nine years for the period February 2000 to December 2008 inclusive, of which I have found almost eight (until December 2007) involved a de facto relationship. I do not think a lot turns on whether the parties remained in a de facto relationship in 2008 or in a close personal relationship.

Financial contributions 55Mr de Barros made a number of contributions to the assets and income of the parties during the course of the relationship. He provided cash support. It was accepted that Mr de Barros made payments to Ms Messias for support whilst she lived in Brazil in 2001 and 2002 and to assist in the purchase of an apartment for her in Maceio, Brazil. The St George joint bank account of the parties shows deposits of $2,000 in January 2001 and $1,700 in April 2001, most of which was withdrawn when Ms Messias was about to return to Brazil in July 2001. Ms Messias' income would not support these deposits and I have accepted Mr de Barros' evidence that they were likely made by him. 56Mr de Barros also said that he paid Ms Messias $1,000 a month whilst she was in Brazil for her support, to meet medical expenses and to further her application to return to Australia. Ms Messias disputed that these payments were made in the early months after her departure. 57In Mr de Barros' statutory declaration, dated 1 March 2002, he stated: "I've also been supporting Nailse financially while she has been in Brazil. Before leaving Maceio, I left Nailse a total of BRL2,500 supported by withdrawal statements from the ATM. We calculated that she would require around BRL400 per month. So this represented around 6 months of support. Consequently, I have made additional support contributions via my mother in Florianopolis, Brazil, into Nailse's mother's bank account". 58The documentary evidence does not confirm payments of $1,000 per month although it does indicate significant support by Mr de Barros for Ms Messias while she was in Brazil. As a contemporaneous record, I find it to be more reliable than the parties' recollections in the hearing before me. 59Further deposits of $500 in October 2001 and several deposits totalling $3,000 in December 2001 were made into the St George joint account whilst Ms Messias was in Brazil. I accept that these deposits were also made by Mr de Barros. On 18 May 2002, the bulk of the funds from the account were used to pay Harvey World Travel, which I infer was for Ms Messias' ticket to Australia. It was not disputed that Mr de Barros paid for that ticket although it would be double counting to accept both the contribution into the account and a contribution for the payment of the ticket. 60Mr de Barros also deposited the sum of $100 per week into Ms Messias' account from March 2004 until November 2008 inclusive (totalling about $24,700) plus $120 per month from December 2008 until April 2009 (a total of $600) plus $8,000 in $1,000 payments from May to November 2009. These amounts total $33,300 of which $13,800 was paid after November 2007 and $8,600 from December 2008. 61During the period of the relationship Mr de Barros paid the rent, the couple's regular supermarket shopping bill, the utility accounts and the restaurant bills as the parties ate out on weekends. Mr de Barros continued to pay the rent of approximately $550 until December 2008 and thereafter paid $250 a week until March 2009 whilst he was not living in the apartment. Ms Messias raised the residue of the rent by licensing a room to boarders. 62I have noted that Ms Messias gave oral evidence that she repaid monies provided to her but there was no evidence to support this. It would seem to be difficult on the wages she received and I do not accept it. 63On the other hand, Ms Messias made some minor financial contributions to the relationship. She received an amount of approximately $200 to $300 per week from her employment whilst she was working for most weeks of the period 2003 through to 2007 and I accept that she used that money not only for her own personal expenses but on occasions for the purchase of food which the couple used for meals during the week. 64At the commencement of the relationship Mr de Barros owned a one-third interest in a Ramsgate Avenue apartment. No valuation was provided for this one-third share although the parties reached a limited agreement on its value at various dates. They differed as to its value at the date of trial. I have accepted that that share was worth $60,000 at the beginning of the relationship, $150,000 at the end and $180,000 now. Ms Messias never lived in that apartment nor did she make any financial contributions towards it. 65Mr de Barros also owned an apartment in Consett Avenue, Bondi from about 1996. That apartment was agreed to have a value of $365,000 at the start of the relationship, $725,000 currently and I have adopted a value of $600,000 as its value at the end of the relationship. Again, Ms Messias never lived in that apartment nor did she make any financial contributions towards its maintenance, conservation or improvement. 66Mr de Barros purchased the property in Florianopolis, Brazil in February 2001 although as I have found he made some payments of an unspecified amount in 2000. Apart from one week in 2004 Ms Messias never lived in that home. 67Mr de Barros also at the commencement of the relationship had savings of about $20,000, a 1999 BMW motor vehicle subject to a lease and in the course of the relationship purchased a 2002 Daihatsu four-wheel drive motor vehicle or provided the funds for that purchase. He also had his interest in his company, which the plaintiff contends was worth about $10,000 which I accept. 68I should note that because of the failure to have these various interests valued the Court is left in the position of doing the best it can with the limited information available. Sometimes the Court has been able to rely upon a concession of one or the other of the parties or has adopted a position somewhere in between the positions of the parties where there was no other evidence of value. 69Another asset owned by the parties was the Maceio apartment in Brazil. That purchase of the apartment occurred in November 2004 and came about in the following way. Ms Messias was receiving payments for her cleaning employment from about March 2003. Those payments were deposited into her account. By March 2004 the balance was almost $4,500. At that date Mr de Barros commenced depositing $100 a week into the account. By 3 November 2004 the balance was $7,700, Mr de Barros having deposited about $3,500. 70Mr de Barros then transferred or deposited a further $7,300 into the account. The $15,000 approximately then standing in credit was telegraphically transferred to Brazil for the Maceio apartment. The apartment apparently cost 17,000 Brazilian Reals, about $7,000 Australian at the time. Ms Messias accepted that she also sent money to her mother in Brazil so the surplus of money transferred after payment of the purchase price, I infer, was received by Ms Messias' mother. 71In those circumstances, Mr de Barros, by his payments in November 2004, has contributed the value of the Maceio apartment, if one accepts that the listed purchase price was the real purchase price. Whether the listed purchase price was the actual purchase price is uncertain. 72In respect of the purchase of Florianopolis, Mr de Barros asserted that the contract price of approximately BRL48,000 was not the real purchase price which was BRL170,000. This matter was only lightly contested at the trial. 73Accordingly, it may be that the purchase price of the Maceio apartment did exceed the amount contributed by Mr de Barros in November 2004. On the other hand, the contributions made by Mr de Barros in the year 2004 totalled approximately 70 per cent of the total amount telegraphically transferred to Brazil for the payment of the apartment and the residue received by Ms Messias' mother. 74Mr de Barros also had $50,000 of superannuation at the start of the relationship. 75As to the income of the parties, Mr de Barros stated in a financial statement that he received $2,000 a week and that was not challenged. With that income he met almost all of the parties' expenses.

Non-financial contributions 76I accept in the period 2000 to 2008 Ms Messias made the greater share of non-financial contributions. Mr de Barros did the vacuuming of the unit but the residue of the cleaning was done and done well by Ms Messias. Mr de Barros' gratitude expressed in an email on 4 April 2009 quotes "Thanks again for leaving the home clean and tidy for my arrival. Of course I didn't expect anything less from you. Thanks again," is some evidence of this. 77Ms Messias claimed that she did the washing and ironing. Mr de Barros accepted that Ms Messias did some of his washing and ironing and although this was said by him to be "nominal". In these circumstances. I conclude that Ms Messias did the greater amount of the washing and ironing. 78Ms Messias also claimed to have cleaned the plaintiff's rented unit on about three occasions between tenants although Mr de Barros disputed this. 79Ms Messias says that during the week she did the cooking and on weekends the parties ate out at restaurants at Mr de Barros' expense. Mr de Barros largely accepted this. 80In assessing these contributions I note the principle established by the authorities that I cannot put a lesser value on the contribution of a homemaker and parent than I can upon an equivalent contribution by the breadwinner. But I must also consider the extent of the contributions. 81In this case there was no child to parent and the home consisted of a rented two-bedroom unit. The contribution as a cook of the evening meals seems largely balanced by the expenditure Mr de Barros made in respect of restaurant meals on weekends. The contribution as cleaner outweighs Mr de Barros' efforts and similarly the washing and ironing must be taken into account. 82However, it is difficult to view these contributions as substantial. Although her remuneration was small, Ms Messias was working away from the home so she was not a full-time homemaker. As a two-bedroom unit the couple's residential premises were modest in size and involved little maintenance as they were rented. Additionally, Mr de Barros was absent for significant periods of time each year so that in those times Ms Messias homemaking contributions largely comprised her own personal laundry and cooking and cleaning for her own benefit. 83I should also mention the personal domestic support of each partner. In the statutory declaration in 2001, Mr de Barros stated: "Our relationship is also characterised by emotional support and companionship for one another. Nailse comforts me emotionally with her kind and understanding words and I reciprocate this by supporting and assisting with her English language skills requirements by reviewing her work and correcting her English grammar on a daily basis. In exchange I also benefit in learning and practising the Portuguese language further for professional advantage. Our genuine relationship and our love for each other from its inception has both given us the reassurance of a prosperous and continuing future together." 84Ms Messias in her statutory declaration of 12 July 2001 stated: "Both Wilson and I have been living together for over two years. During this time our love and commitment to each other has grown. Wilson is a loving and caring partner who has provided me with a lot of support throughout this time. He is a good man who is always endeavouring to do his best in both his personal and professional life and as such has succeeded in every aspect. Wilson often helps me with my English studies and is always there when I need him for financial and emotional support." 85The value of the sentiments expressed in these passages may be discounted because they were created for the purpose of assisting Ms Messias' stay in Australia. Further, they reflect in part an intention of the parties rather than an account of what occurred in the period 2001 to 2008. 86Nevertheless, those and other passages in the statutory declarations in evidence indicate, not unexpectedly, a significant degree of mutual emotional support, which must have contributed to the welfare of each. These contributions must be taken into account under s 21(b) of the Act.

Assets at the end of the relationship 87Presently, Mr de Barros retains his ownership interest in the two Bondi apartments and the Florianopolis property mentioned earlier. He also continues to operate his business through BITS and has money deposited in his own account and in the BITS' account. He also has some superannuation, the 1999 BMW motor vehicle and some household contents. Ms Messias owns the apartment in Maceio, Brazil and the 2002 Daihatsu four-wheel drive panel van. 88I have assessed in rounded terms the value of the assets of the parties at the start and end of the relationship and at present as follows. The plaintiff started the relationship with effectively nothing. The defendant owned the Consett Avenue apartment worth $365,000 with a debt of about $145,000, a one-third interest in the Ramsgate Avenue apartment worth $60,000, superannuation of $50,000, the value of the BITS company at $10,000, savings of $20,000 and the BMW of a value in excess of the lease of $25,000. That amounts to a net asset position of $385,000. 89At the end of the relationship, the plaintiff had the Maceio unit, which was valued then at about $30,000, the Daihatsu valued at $15,000, contents, jewellery and a business of $3,000 and superannuation of $2,500. The total assets of Ms Messias were thus $50,500. 90Mr de Barros at that point had the Consett Avenue apartment worth $600,000, a one-third interest in the Ramsgate Avenue apartment worth $150,000, savings of $125,000, superannuation of $55,000, BMW of $20,000, the BITS business of $130,000, contents and jewellery of $6,000 and the Florianopolis property of $350,000. Thus, the total assets of Mr de Barros at the end of the relationship were worth $1,436,000. 91Presently, I have valued the assets of the parties as follows: the Maceio apartment at $50,000, Daihatsu at $5,000, contents, jewellery and business of $3,000, superannuation of $2,500. Thus, the total of Ms Messias' assets are $60,500. Mr de Barros' assets comprise the Consett apartment of $725,000, the Ramsgate Avenue one-third interest of $180,000, savings of $250,000, superannuation of $62,000, a BMW of $16,000, the BITS company at $465,000, contents and jewellery of $6,000 and Florianopolis of $450,000 for a total of $2.154 million. 92I should make some comments about these findings of value. As to the Maceio apartment there were some unsatisfactory market appraisals tendered by Ms Messias that indicated a value approaching $40,000. On the other hand, Ms Messias in a statement of financial interest was asked to put a value on the Maceio unit and valued it at $75,000. I think it is quite possible, even likely, that the plaintiff may have used the wrong currency in stating the value on the financial statement. However, doing the best I can and bearing in mind the lack of certainty of the other market appraisals, I have placed a current value on the Maceio apartment of $50,000. 93The value of the Consett Avenue apartment was agreed at the start of the relationship and currently. In respect of that property and others there has been some attempt to divide the capital growth so as to ascertain value at the end of the relationship and attribute an appropriate proportion of the capital growth to the period before 2008. Whilst there is obviously some inaccuracy in that approach adopted by the plaintiff which was to divide the total increase by the number of years between the two agreed valuation dates so as to produce an annual increase, and use that to calculate an approximate value as at 2008. I think it is a reasonable approach and I have largely adopted it. It could be criticised in that it understates the multiplier effect of capital growth but on the other hand, it does not discount growth after 2008 to take account of the consequences of the Global Financial Crisis. 94The parties agreed, for purpose of these proceedings, on the current value of Florianopolis at $450,000. There was a small dispute about the value of the one-third interest in the Ramsgate Avenue property, which I found to be part way between the two alternative figures. 95The two matters of value that were perhaps most seriously disputed concerned the value of Mr de Barros' savings and the value of the BITS company. As to the first, Mr de Barros effectively conceded the sum of $250,000 when certain financial records were shown to him. Mr de Barros had accepted an amount of savings of $125,000 because of documents showing an amount of $126,839. However, when a $247,000 transfer was identified Mr de Barros, as I have earlier mentioned, readily increased the amount of the savings to $250,000. Whilst Mr de Barros' evidence was unsatisfactory, the documents did not persuade me that there were two separate deposits. Rather, the records indicated that the transfer of $247,000 came from the earlier account which had borne a balance of about $125,000. Accordingly, it would be double counting, it seemed to me, to regard the documentary evidence of savings of $126,839 as additional to Mr de Barros' subsequent concession that he held about $250,000 in an ING account. 96Mr de Barros also submitted that I should include some deduction for outstanding tax owed by Mr de Barros. There was no evidence of any amount of outstanding tax. Mr de Barros' records indicated that he was well behind in his obligations to submit tax returns. However, I was not willing to accept a reduction for outstanding tax obligations in circumstances where there was no detail of Mr de Barros' taxable income or tax obligations in the relevant years. 97The other matter of dispute was the value of the BITS company owned by Mr de Barros. The financial records of the company in 2008 indicated that the major assets of the company comprised loans to or from Mr de Barros as well as deposits in bank accounts. I considered that the loans should be disregarded because any loan to or from Mr de Barros would have a corresponding diminution or increase in Mr de Barros' own personal financial situation, as he was the sole owner of BITS. 98However, the bank account balances were relevant. In evidence there was a bank account in the name of BITS that showed a credit balance reaching almost $500,000 in 2013. In those circumstances, I have accepted Ms Messias' assertion that the value should be approximately $465,000, which is the latest credit balance appearing on the statements in evidence. 99Mr de Barros submitted that there were expenses including some unspecified potential taxation liabilities that would need to be deducted from that account. But no detail of these supposed expenses appeared in the evidence. Neither the nature of Mr de Barros' business as an IT consultant nor the past financial statements of BITS indicated any business expenses of significance. The largest expenses shown in the most recent financial statements of 2008 were for rent and travel. As to rent, there was no evidence of any business premises other than the leased Bondi apartment. Both rent and travel expenses seem to me to be unlikely to accumulate to become substantial amounts by remaining unpaid for a lengthy period. In any event, there was no evidence to this effect. 100Ms Messias seeks a division of the assets as at 2008 plus interest if that is appropriate. I was referred to authorities permitting the adjustment to be done considering the position as at the end of the relationship although the Act contemplates an adjustment as at the date of trial. Mr de Barros did not advocate for an adjustment at the date of trial. 101When one looks at the respective positions, Mr de Barros' assets have increased by a little more than $1 million during the period of the relationship, and the parties' assets have increased by perhaps $1.1 million when one takes into account the amount held by Ms Messias. As at the present date the total assets are slightly in excess of $2.2 million of which the plaintiff holds approximately $60,000. 102I indicated earlier that the decision in Sharpless bore some similarities to the present case. In that case, there was a period where the plaintiff took particular care of the defendant although not very well. That situation does not arise in this case. Conversely, I do not think that there is any suggestion that Ms Messias has done anything that diminished the value of the assets of Mr de Barros as occurred in the Sharpless decision. 103Alike with the decision in Sharpless, Ms Messias has not been involved in any joint enterprise with Mr de Barros. There is no suggestion that she acted in any way to her financial disadvantage by involving herself with Mr de Barros by means of foregoing opportunities. In Prior, the assets of the parties were $3 million approximately and in very broad terms the plaintiff's share was adjusted from a little under $150,000 to something over $300,000 so that she ended up with in excess of 10 per cent of the assets. As I have indicated, Ms Messias' contribution seems to be significantly less than the plaintiff in Prior who came into the relationship with a small financial contribution of $40,000 and who worked for reduced remuneration in the defendant's business. Ms Messias brought no assets into the relationship and did not work for Mr de Barros. 104In Bilous at [69], it is stated: "...as a general proposition, that, where the primary income earner has professional or business talents which have enabled him or her to acquire valuable investment or business assets in a way that has little or nothing to do with the contributions of the other party to the relationship, it is likely that no adjusting order would be made in respect of those assets." 105In that case there was an adjustment. The circumstances of that case I find to be entirely different from this in that the parties in that case brought relatively equal contributions into the relationship. 106In Paino v Paino [2008] NSWCA 276 at [93], the Court recognised contributions in the form of loss of opportunity to develop a career, engage in an alternative permanent relationship or have children. There was in this case no loss of opportunity, in my opinion, to develop an alternative career and no case was maintained by the plaintiff that she was deprived of those other matters. However, this passage does emphasis that non-financial contributions are often not so obvious as financial ones and should not readily be overlooked. Perhaps I should also mention the case of Wendt v Wood [2011] NSWSC 781, where the plaintiff made little financial contribution at the outset of the relationship, but each party made an equal non-financial contribution during the relationship working together in a joint endeavour for a longer period than the relationship between Mr de Barros and Ms Messias. 107It seems to me that up until early 2003, when the plaintiff had returned from Brazil and commenced work as a cleaner getting a regular income, it is difficult to see any reason why the plaintiff should receive an adjustment. To that point Ms Messias made only the most minor contributions which must be measured against the significant contributions that Mr de Barros made to accommodate and support her, to assist her to return to Australia and to obtain a status that enabled her to engage in the workforce. I have mentioned already the ways in which he supported her. 108However, in the period after Ms Messias returned from Brazil and obtained work in early 2003, bearing in mind her contribution to the relationship since that time, I am persuaded that there should be some modest adjustment in her favour. I bear in mind that the plaintiff has received on my calculations assets to the total value of $60,500. Ms Messias has also received $8,720 for payments made after the end of the relationship in November 2008. I have not regarded payments made as a contribution towards rent after November 2008 as payments in respect of Ms Messias' entitlement because Mr de Barros' contents and property remained at the apartment and he returned to the apartment after Ms Messias moved out. This indicates that it was his intention to retain the apartment whether Ms Messias was there or not and it was a place where items belonging to him were stored. Accordingly, the contributions towards rent were as much for his benefit as Ms Messias. 109In the circumstances, I have assessed that the plaintiff should receive approximately a value of $150,000 less the amounts she has received. That would mean that I propose to allow a sum of about $82,000 in addition to whatever she has received, calculated by deducting approximately $68,000 from $150,000. 110The plaintiff has also sought that there be interest in respect to this amount. There should be no interest in respect of the assets already provided to Ms Messias, much of which was provided by Mr de Barros early in the relationship. I have taken into account the fact of the value of the property that the defendant has at the present date as well as considering the parties' assets as at the end of the relationship. I propose to make a small adjustment of $8,000 interest. Therefore, the amount I propose to award to the plaintiff is in the sum of a total of $90,000 including interest, and to adjust the assets of the parties by that amount. 111The statement of claim sought simply payment of an amount of money. I propose to make an order that the defendant pay the plaintiff the sum of $90,000, and I will allow the parties an opportunity to address on the appropriate costs orders. 112Accordingly, the orders of the Court are:

Order the defendant pay the plaintiff the sum of $90,000.
Reserve the question of costs to a date to be advised.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 August 2013

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Judgment (9 paragraphs)

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Cases Cited (12)