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[2013] VSC 95
General information, not legal advice.
Supreme Court of Victoria
2013-04-15
DALY AsJ
Original judgment source is linked above.
DE FACTO PROPERTY - Relationships Act 2008 (Vic) - Characteristics of a domestic relationship - Application for an extension of time to bring a claim - Assessment of financial and nonfinancial contributions.
1 The plaintiff, Ms Janis White, and the defendant, Mr Anthony (Tony) Hume met in Anglesea, Victoria, in late 2001. Neither was married at the time, and not long after they met, they formed an intimate friendship. By March 2002, Ms White had moved into Mr Hume's home at 31 Third Avenue, Anglesea ("Third Avenue"), albeit, at that time, as a boarder. It is common ground that the couple lived together in a domestic relationship from about March 2002 until the latter part of 2006, when Ms White left Third Avenue for the last time, and moved to a property owned by Mr Hume in Diamond Beach, on the mid north coast of New South Wales. Mr Hume visited her there from time to time, and Ms White contends that there was no material change in their relationship until 2009, when Ms White left Diamond Beach and returned to live at her family's property at 29 Eighth Avenue, Anglesea ("Eighth Avenue"). Mr Hume, on the other hand, contends that their domestic relationship ended in October 2006.
2 The question of when the domestic relationship between Ms White and Mr Hume ended is of quite some significance in this case. Ms White commenced this proceeding in November 2009 seeking a property settlement and maintenance under the Relationships Act 2008 (Vic) and the Property (Relationships) Act 1984 (NSW) ("NSW Act"). However, setting aside the question of whether this court has jurisdiction to make orders under the NSW Act (in short, it does not), the date upon which the domestic relationship ended is significant for the following reasons:
(a) whether any entitlements or liabilities of the parties are governed by the Relationships Act 2008 (Vic), which came into force on 1 December 2008, or Part IX of the Property Law Act 1958 (Vic), which was repealed by the Relationships Act;
(b) whether, under either of the Relationships Act or the Property Law Act, Ms White is required to apply for an extension of time, given that, under both Acts, any claim must be made within two years of the end of the domestic relationship;
(c) whether, if the domestic relationship extended for the period of time asserted by Ms White, the parties lived together in Victoria for at least one third of the period of the relationship; and
(d) the merits of any claim for provision by Ms White, given that the duration of the relationship is one of the matters to be taken into account when determining whether one party is obliged to make provision for the other, and, if so, the nature and amount of such provision.
3 Before turning to these and other relevant issues in the proceeding, it is helpful to provide more detail regarding the personal backgrounds and circumstances of the parties, and the procedural history of this proceeding.
4 Janis White is currently aged 64, and has described herself as being, at various times, a journalist, a gallery manager, and a painter. However, at no time since early 2002 has she been engaged in regular paid employment. At the time she met Tony Hume in early 2002, she was living at 3 Fourth Avenue, Anglesea, in receipt of government benefits, and under a strict medication and treatment regime by reason of a Community Treatment Order made in 2000. Indeed, Mr Hume funded legal representation to assist Ms White to have the Community Treatment Order lifted by the Victorian Civil and Administrative Tribunal in December 2002.
5 The evidence regarding Ms White's mental health since that time is patchy, although I note that there have been some delays and adjournments owing to her health problems, and she appears to have been in conflict with other members of her family from time to time over involuntary hospitalisation during the course of the proceeding. The language and presentation of some of her affidavit material is somewhat eccentric and extravagant, but during the course of the trial of the hearing I formed the view that she understood the factual and legal issues associated with her claim. However, I can see how her somewhat unconventional approach to life, commonly associated with those of a "creative" bent, and her consuming interest in her artistic pursuits might mean that it would be difficult for her to attract and maintain regular remunerative employment.
6 Mr Hume has also not been in the paid workforce for many years: however, his circumstances were and are markedly different from those of Ms White. By 2002, at the relatively young age of fifty, Mr Hume had retired, having sold his quarter share of a quarrying business. The proceeds of the sale were invested, and Mr Hume also enjoyed the benefit of regular dividend payments from a family company, which increased over time. More recently, he has received further financial benefits through an inheritance from his late mother's estate.
7 As previously indicated, in 2002 Ms White commenced living at Third Avenue, at first as a boarder, but soon after as Mr Hume's de facto partner. As such, she ceased receiving social security benefits, and paying board to Mr Hume, at some time during 2002. It appears that the relationship was volatile, and there were a number of brief separations between 2002 and 2006.
8 In 2002, Mr Hume purchased three adjoining properties in Diamond Beach, a small and no doubt attractive town on the mid north coast of New South Wales, near Taree. In 2003, one of the properties ("the shops") was fitted out as an art gallery to display and sell the works of Ms White and other local artists, and the couple lived in these premises upon their extended stays in Diamond Beach. However, the attractive lifestyle which presumably attracted the couple to the area was marred by disputes with the local council regarding the use of the premises as both a gallery and a residence, disputes regarding a proposed renovation of the premises, along with numerous instances of physical threats and vandalism by local youths. Certainly, by 2006 Mr Hume had decided that he did not want to make Diamond Beach his permanent home and had put the shops on the market. Ms White, however, appeared to be less perturbed about these issues and loved the climate, her gallery, and her opportunities to paint.
9 It is not clear from the evidence exactly how the couple divided their time between Diamond Beach and Anglesea between 2003 and 2006, although Ms White did suggest, without any degree of certainty, that the split was about half and half.[1] In any event, in October 2006, the couple were living at Third Avenue, when a dispute caused a further separation. In Mr Hume's mind, this separation brought the relationship to an end, while Ms White insists the couple reconciled, as they had done before, and maintained a domestic relationship until Mr Hume collected her from Diamond Beach and delivered her to Eighth Avenue in September 2009.
10 According to Mr Hume, on 26 October 2006 Ms White disappeared and could not be found. Mr Hume contacted other members of Ms White's family and the police, and it turned out that she had been staying at Eighth Avenue, but had refused to open the door or acknowledge the existence of Mr Hume and the police when they visited to attempt to locate her.
11 Upon her return to Third Avenue on 28 October 2006, Mr Hume told Ms White to pack her bags and leave, which she did. Mr Hume arranged for a taxi to take Ms White and her possessions back to Eighth Avenue and, according to him, made it quite clear that their relationship was at an end.
12 There is some dispute as to whether Ms White returned to Third Avenue and whether the relationship resumed in the period between 28 October 2006 and around 4 December 2006, when Mr Hume drove Ms White to Diamond Beach. However, there is no dispute that after that time Ms White resided permanently at Diamond Beach from December 2006 until September 2009, and she never returned to live at Third Avenue.
13 While there was a dispute between the parties as to whether they were in a genuine domestic relationship after October 2006, there is no doubt that a relationship of sorts existed between Ms White and Mr Hume until February 2009, when Ms White says the relationship ended. From time to time, Mr Hume would travel to Diamond Beach and stay at the shops, sometimes for weeks at a time. In December 2006 he arranged for an additional room to be constructed at one end of the shops, and the parties maintained separate bedrooms during Mr Hume's visits to Diamond Beach from then on. While there is disagreement about the parties' sleeping arrangements, the couple maintained a sexual relationship, although there was no direct evidence as to its frequency or regularity. While Mr Hume was at Diamond Beach they would spend their days together going to the beach, and having lunch and dinner together. However, Mr Hume primarily resided at Third Avenue, and also travelled on holidays elsewhere, mainly without Ms White. He financially supported Ms White throughout this period.
14 Even prior to October 2006, Mr Hume had determined that he wished to sell the shops. The shops were on the market from late 2005 and were eventually sold in late 2007. It is apparent from one of the documents in evidence[2] that one option being considered by Mr Hume at the time was to sell the shops to finance the construction of a mixed commercial/residential development on one of the vacant lots at Diamond Beach. Settlement of the sale of the shops took place in July 2008. Mr Hume leased an apartment in Diamond Beach, and Ms White moved into that apartment.
15 In August 2009, Mr Hume determined that he would no longer continue to pay for the rental of the apartment. He drove up to Diamond Beach in September 2009 to collect Ms White and return her to Eighth Avenue. From that time on, the parties were completely estranged.
16 While there is some dispute about the dates, authenticity, and context in which the documents were produced, a number of proposed terms of agreement or settlement agreements were produced by or on behalf of Mr Hume during the period of 2007 to 2009, which recorded proposals by Mr Hume to reach a financial settlement between him and Ms White. Ms White denies receiving one of those documents, but admits receiving the others. She refused to enter into any settlement agreement with Mr Hume. Instead, in late 2009 she produced her own proposed settlement agreements, curiously titled "Arsis Agreement". In the first version, she stated:
It is agreed that Janis would settle for:-
A Maynard built new gallery on Lot 160 with basement residence and having a large (metal fenced) back garden. This would require a jutting forward, far out in front of the two level building on 15 Diamond Drive. Front and back of my new building will have state of the art security shutters. All costs (including continuance of temporary rental at 2/26 Diamond Drive) will be paid by Anthony.
It is agreed that Janis would settle for either one clear million or:-
A Maynard built new gallery on Lot 160 with basement residence and having a large metal-fenced back garden. This would require a jutting forward, far out in front of the two level building on fifteen Diamond Drive. Front and back of my new building will have state of the art security shutters. All costs (including temporary rental at 2/26 Diamond Drive) will be paid by Anthony; as well spousal maintenance three hundred thousand dollars - so as to live off the interest.
18 At the time of the trial of the proceeding, Ms White lived at Eighth Avenue, and was dependant upon social security benefits. Mr Hume has sold Third Avenue, and now lives in Port Macquarie in New South Wales with his current partner, while still owning some properties in Anglesea.
19 Ms White's Originating Motion was filed on 12 November 2009, and served on or about 30 November 2009. Between the first return date of the application on 30 March 2010, and the trial of the proceeding in May and June of 2012, the preparation of the proceeding for trial was plagued by interlocutory disputes regarding the manner in which Ms White prepared and presented her affidavit evidence. Orders were made by associate judges on 28 May 2010, 23 June 2010, 18 August 2010, 21 October 2010, 3 February 2011, 7 April 2011 and 20 October 2011. A number of these orders were appealed, unsuccessfully, by Ms White. The original trial date of 21 November 2011 was vacated owing to Ms White's ill health. Costs orders were made against Ms White on some occasions: on other occasions, costs were reserved.
20 The interlocutory orders provided for the trial of the proceeding to be conducted by affidavit. However, upon reviewing the court file prior to the commencement of the trial, I formed the view that if the trial was conducted in this manner, a substantial proportion of the five to seven day hearing estimate would be consumed by the need to rule upon numerous and reasonable objections to the admissibility of Ms White's evidence, which would be extremely difficult for Ms White, as a lay person representing herself, to adequately deal with in the course of running a trial. Accordingly, at the commencement of the trial, I proposed, and both parties agreed (Mr Hume having been legally represented since the commencement of the proceeding) that Ms White would give her evidence orally, with the topics upon which she would give evidence structured according to a document titled "List of Agreed Issues", prepared by me following my review of the affidavit evidence, with some input from counsel for the defendant. The List of Agreed Issues is reproduced below:
(a) Where did the parties live after October 2006?
(b) What was the nature of the relationship after October 2006?
(c) Is the calendar showing the dates of Mr Hume's stays in Diamond Beach at CB 552 to 523 accurate?
(d) In determining whether there was a domestic relationship between the parties after October 2006, what is the significance of the following matters referred to in Ms White's affidavits:
(i) the involvement, if any, of Ms White in the application for an AVO against other Diamond Beach residents;
(ii) the involvement, if any, of Ms White in the application for development approvals for the Diamond Beach properties;
(iii) the proposed settlement agreements prepared by or on behalf of Mr Hume in 2007 and 2009;
(iv) the document headed "If we sold just the shops only" at White CB 41; and
(v) (any other matter).
(a) as at 2002;
(b) as at 2006; and
(c) as at 2009.
Does Mr Hume have any other assets other than those set out in his affidavit sworn on 22 November 2010?
(a) the Diamond Beach properties;
(b) the share portfolio;
(c) 31 Third Avenue, Anglesea; and
(d) any other property?
(a) property adjustment and maintenance; or
(b) property adjustment only.
21 Having the List of Agreed Issues to structure the presentation of evidence at trial proved helpful. Further, with the agreement of counsel for Mr Hume, I took an active part in adducing evidence from Ms White (and to a lesser extent, from Mr Hume). During the course of Ms White's evidenceinchief I asked her questions based upon the List of Agreed Issues, and, after counsel for Mr Hume crossexamined Ms White, I asked her a number of questions by way of reexamination. I identified documents from the court book which I considered Ms White would want to have tendered in evidence. Counsel for Mr Hume assisted by identifying further documents that he expected Ms White would want to have tendered. Further, I asked a number of questions of Mr Hume in addition to the questions asked by Ms White in her crossexamination.
22 The approach taken at trial might be considered to be an unusual degree of intervention from the bench, even in circumstances where the plaintiff was a selfrepresented litigant. However, in my view the trial proceeded much more smoothly than would otherwise have been the case had the traditional noninterventionist approach been adopted. The evidence was concluded within three days, and submissions took approximately half a day, such that the trial was concluded within three and a half days.
23 Ms White had some difficulty articulating the precise nature and quantum of her claim. In her amended originating motion filed 21 October 2010, Ms White sought relief in the following terms:
The defendant, Anthony Hamilton Hume, according to Property Relationships Act 2008 Vic; 1984 NSW; adhere to a division of total pool, along with either 5 Bon Air Ave, Anglesea, or new gallery residence, built on Lot 160, 17 Diamond Drive, Diamond Beach, NSW as planned.
Defendant must pay, according to both Acts, both States ... Victorian (Relationships) Act 2008 and the New South Wales Property (Relationships) Act 1984; and must adhere to a division of the total pool (property pool plus asset pool) and:
Must adhere to my property right claim to say 5 Bon Air Ave, Anglesea and/or to new gallery planned to be standing on Lot 160, 17 Diamond Drive, Diamond Beach, New South Wales - preferably as a basement-residence-gallery; with provision to build the DA approved (my work helped) residence above the gallery.
24 However, it became apparent during the course of the trial that the relief Ms White sought was for Mr Hume to pay to her a capital sum sufficient to purchase a block of land (or to assign to her one of the vacant lots he still owns at Diamond Beach), and to fund the construction of a residence-come-gallery (according to plans previously drawn up for Lot 160 at Diamond Beach), preferably located in Diamond Beach. Ms White did not appear to actively pursue a claim for an interest in the property located at 5 Bon Air Avenue, Anglesea, or for ongoing maintenance.
25 The limited evidence before the Court regarding property values in Diamond Beach and the construction costs of a new gallery /residence, led me to believe that the cash equivalent of the amount of provision sought by Ms White would be somewhere in the order of $500,000.
26 Mr Hume, by paragraph 37 of his affidavit sworn 26 March 2011, seeks the following orders and declarations:
(A) the plaintiff's application by her letter dated 29 June 2010 for an extension of time to bring a claim against the defendant by way of originating motion pursuant to the Relationships Act 2008 (Vic) and Property (Relationships) Act 1984 NSW be refused;
(B) an order dismissing the plaintiff's claims against the defendant sought in her Amended Originating Motion filed 21 October 2010 or in any proceeding or subsequent Originating Motion filed by the plaintiff in this proceedings which she may seek to rely upon;
(C) a declaration that the domestic relationship between the plaintiff and the defendant ended on 28 October 2006;
(D) a declaration that the plaintiff is not entitled to any adjustment of property owned or controlled by the defendant either at law or in equity;
(E) a declaration that the plaintiff has no legal or equitable interest in any real of personal property owned or controlled by the defendant;
(F) the plaintiff pay the defendant's costs of this proceeding, including any reserved costs; and
(G) such other order or orders that the Court deems proper.
27 As previously noted, the question of when the domestic relationship ended may be relevant to the question of whether Ms White's claims are to be governed by the Relationships Act or Part IX of the Property Law Act, whether Ms White requires an extension of time to bring her claim, and, to some extent, the merits of Ms White's claim.
28 There is no dispute between the parties that they were in a domestic relationship until October 2006. The issue in dispute is what the character of the relationship was after October 2006.
29 A domestic relationship is defined by the provisions of s 35 of the Relationships Act as:
(b) a relationship between two persons who are not married to each other but who are living together as a couple on a genuine domestic basis; or
(c) the relationship between two adult persons who are not married to each other but are a couple where one or each of the persons in the relationship provides personal or commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders or whether or not they are living under the same roof....
Section 35(2) of the Relationships Act provides that:
In determining whether a domestic relationship....exists or has existed, all the circumstances of the relationship are to be taken into account, including any one or more of the following matters as may be relevant in a particular case:
(a) the degree of mutual commitment to a shared life;
(b) the duration of the relationship;
(c) the nature and extent of common residence;
(d) whether or not a sexual relationship exists;
(e) the degree of financial dependence or interdependence, and any
arrangements for financial support, between the parties;
(f) the ownership, use, and acquisition of property;
(g) the care and support of children;
(h) the reputation and public aspects of the relationship.
30 Upon reflection, the matters referred to at sub-paragraph 1(d) of the List of Agreed Issues, save for (iii) and (iv), being the relevance of any settlement proposals prepared by or on behalf of Mr Hume between 2007 and 2009, and the relevance of the existence and contents of the document headed "if we sold the shops only", are probably more pertinent to determining the nature and extent of the contributions made by Ms White to the welfare of Mr Hume than to the question of whether the parties were in a domestic relationship after October 2006.
31 According to Ms White, only a matter of days after Mr Hume ordered her to "pack her bags", and arranged to transport her and her belongings to Eighth Avenue, the couple reconciled, as they had on previous occasions, and she returned to Third Avenue, where she stayed until Mr Hume drove her to Diamond Beach in December 2006. She recalls attending the local polling station together to vote in the 2006 State Election (which was held in late November 2006). While she acknowledges that she never returned to Third Avenue after December 2006, she disputes the assertion that the fundamental character of the relationship changed after she went to live in Diamond Beach in December 2006. As far as she was concerned, the relationship continued as before when Mr Hume visited Diamond Beach and that while their living and sleeping habits differed (she would go to bed early, while Mr Hume would sit up late to watch TV), they maintained a sexual relationship and continued to provide each other with companionship and emotional support as a couple would. The existence of their ongoing intimate relationship was corroborated by a reference to sexual activity on a handwritten "running sheet" for Christmas Day 2008,[3] the authenticity of which is undisputed, and the support she provided to Mr Hume when he went to court in 2008 seeking Apprehended Violence Orders ("AVOs") against some Diamond Beach residents. Mr Hume also bought a gift for her for Christmas in 2008, and the local children at Diamond Beach would ask her about when her "husband" would be returning. Strictly speaking, this evidence is hearsay, but I consider it to be admissible to the extent that it goes to Ms White's state of mind. She asserts that the solicitor who assisted Mr Hume to obtain the AVOs referred to the AVOs protecting her, as Mr Hume's domestic partner, and that an Anglesea-based solicitor she telephoned as a result of her concerns about Mr Hume's unusually long absence in early 2007 reassured her that "while she still had her gallery, she still had her relationship". She considered that Mr Hume's assertion that the domestic relationship ended in October 2006 was inconsistent with him arriving at Diamond Beach in August 2009, and stating that "we're separating". She queried why, if the relationship ended, as Mr Hume asserted, in October 2006, Mr Hume was making settlement proposals as late as July 2009.[4]
32 It was apparent from her oral evidence[5] that Ms White considered that, to the extent that Mr Hume appeared to be separated from her after October 2006, this was a sham, designed to placate Mr Hume's family, which did not approve of her and Mr Hume's relationship with her. However, when Mr Hume stayed at Diamond Beach, they "carried on" and "nothing ever altered" between them. [6]
33 Ms White, in the course of her oral evidence,[7] and her final written submissions, asserts that the relationship ended in February 2009. The submissions, combined with her oral evidence, suggests that this date is consistent with a time she had felt the emotional quality of the relationship had deteriorated, rather than a change in her domestic arrangements (as she continued to live at the apartment leased by Mr Hume at Diamond Beach until September 2009).
34 Mr Hume's affidavit evidence regarding the nature of his relationship with Ms White can be summarised as follows:
(a) they first met in December 2001, when he stopped to assist her after a fall, and gave her a lift to her home in Fourth Avenue;
(b) he saw her again some months later in March 2002, walking along the road, and once again, he gave her a lift home;
(c) some days later, he visited her to ask her out for dinner;
(d) not long after their dinner, Ms White visited him at Third Avenue and told him that she would have to leave the place she was currently living at. He invited her to board at Third Avenue, provided she pay $100 per week for board, to which she agreed;
(e) after she commenced living at Third Avenue, he became aware that Ms White was subject to a Community Treatment Order, which, among other things, involved regular visits by a nurse to administer medication;
(f) during 2002, he took Ms White on holidays to South Australia and New South Wales. He was looking for an investment property in New South Wales and in July 2002 purchased the shops and two vacant blocks of land in Diamond Beach, New South Wales;
(g) in October 2002, he purchased a ring for Ms White, after she said that she could not continue to live with him unless they were engaged. He did this to placate her anxieties; however, he did not have any intention of marrying her;
(h) in December 2002 he engaged a lawyer to represent Ms White at the Victorian Civil and Administrative Tribunal. The hearing resulted in a rescission of her Community Treatment Order;
(i) at around this time, Ms White informed Centrelink that she was living with Mr Hume, and ceased receiving benefits and paying board;
(j) while Ms White could be difficult to live with owing to her mental health problems, and could be delusional, her health gradually improved over time;
(k) he first took Ms White to Diamond Beach in April 2003. He had been unable to lease out the shops, and Ms White asked him if she could use one of the shops as a gallery;
(l) the gallery commenced operations in June 2003, and he and Ms White lived at the rear of the shops when they visited Diamond Beach;
(m) before long, he found the situation at Diamond Beach to be very difficult, owing to the activities of local youths sitting outside the shops late at night drinking, taking drugs, and vandalising shop fronts and cars;
(n) between April 2003 and October 2006 he and Ms White travelled between Anglesea and Diamond Beach. He did not like to leave Ms White alone at Diamond Beach owing to the aggressive behaviour of the local youth and his concerns for her safety;
(o) when they lived at Third Avenue, Ms White was unsettled, and regularly disappeared without telling him where she was going. On the last occasion this occurred, on 26 October 2006, he decided he had "had enough", and that he was unable to continue to look after her owing to her erratic behaviour;
(p) on 28 October 2006, he said words to the effect "Jan, you've got to pack your bags, I want you to leave now", which she did;
(q) he agrees that he gave her a lift to the polling station in November 2006, but disputes Ms White's assertion that they reconciled within a matter of days and that she returned to live at Third Avenue before he took her to Diamond Beach on 4 December 2006;
(r) rather, Mr Hume deposed that some weeks after 28 October 2006, Ms White contacted him and asked him to take her back to Diamond Beach. He says he did so because Ms White was happier there, but that it was on the understanding that she could live at the shops until they were sold;
(s) in December 2006 he arranged for some alterations to the shops to be carried out so that they would have separate bedrooms when he visited Diamond Beach;
(t) over the following three years, he regularly visited Diamond Beach and, based upon a calendar prepared by him[8] ("calendar") and his petrol receipts, believes that between October 2006 and September 2009, he spent approximately 203 out of 1049 days at Diamond Beach, but for the remainder of the time he lived in Anglesea or travelled elsewhere;
(u) while he slept in his own room at Diamond Beach, occasionally Ms White would come to his room in the morning and wake him, and they would have sexual relations;
(v) he knew that the gallery was generating little income for Ms White, but she refused to apply for government benefits, so during his visits he would restock the groceries and leave some cash for Ms White, out of concern for her welfare;
(w) in late 2007, he sought advice from a solicitor, and on occasion, provided Ms White with documents recording proposed settlement agreements, which she ignored;
(x) the shops at Diamond Beach were sold, and settlement took place in June 2008. Ms White refused to leave Diamond Beach, so he leased an apartment at Diamond Beach for six months, where Ms White lived until September 2009; and
(y) in November 2008, Mr Hume travelled to Peregian Beach in Queensland because he was interested in purchasing a property as an investment and to assist a friend who was in financial trouble and needed a place to live. The property he inspected had a separate space for a home based industry, and he thought Ms White could also move there, and set up an art gallery if she wished. On his way back to Anglesea, he called in at Diamond Beach (the calendar shows that Mr Hume was at Diamond Beach on 19 and 20 November 2008, and between 28 November 2008 and 2 December 2008). Mr Hume deposed that he proposed to Ms White that if she moved to the property at Peregian Beach she could live there as long as she lived, although the property would be held in his name and revert to his estate upon his death. He told her she would need to meet the costs of her living expenses. Ms White said words to the effect that, "No. I am not interested in doing that Tony", and he did not proceed with the purchase of the property at Peregian Beach.
35 In addition to the evidence in his affidavits, during the course of his oral evidence, including evidence given in response to cross examination by Ms White, and a number of questions asked by me, Mr Hume gave evidence regarding the following matters relevant to the question of whether the parties continued to be in a domestic relationship after October 2006:
(a) the scope and cost of the renovation works carried out at the shops in 2006, being $10,000;[9]
(b) further details regarding what occurred after Ms White disappeared from Third Avenue on 26 October 2006, and the events and circumstances surrounding her departure from Third Avenue on 28 October 2006;
(c) he collected Ms White from Eighth Avenue on a day in late November 2006 in order to vote in the 2006 state election, and returned her to Eighth Avenue. By this time, he had organised with Ms White that she could go back to Diamond Beach;[10]
(d) he confirmed that he had never purchased a property or had a post-box address in Queensland;[11]
(e) the occurrence and the duration of a separation between him and Ms White in 2004;[12]
(f) the sleeping arrangements at Diamond Beach from December 2006. He gave evidence that he slept in a room at the front of the shops, and Ms White in a room at the rear. He acknowledged that there was a sexual relationship between him and Ms White, but that any intimacy would be instigated by Ms White when she came to his room in the mornings;[13]
(g) the daily routine when he stayed at Diamond Beach;[14]
(h) his attempts to reach a financial settlement with Ms White between 2007 and 2009;[15]
(i) the process of selling the shops, and his calculations of his predicted returns from the sale of the shops;[16]
(j) the manner in which he calculated the settlement proposal made by him to Ms White in early 2008, being a payment of $78,600, representing thirty percent of the net proceeds from the sale of the shops;[17]
(k) he explained that a reference to "Problems with bus and wife" on a note produced by Ms White[18] was a shorthand reference to the problems that a close friend of his was having with his business and his marriage in 2008, not the need for Ms White to live somewhere close to a bus route, as she didn't drive; [19]
(l) he stated he had no plans to set up a joint trust fund for the benefit of him and Ms White;[20]
(m) he acknowledged that at Diamond Beach he and Ms White had "morning intimacy", they swum together, had lunch together, and everyone saw them together as a couple;[21]
(n) he agreed that in October 2002 he had agreed with Ms White that they get engaged, and that he had purchased a diamond ring and a wedding dress for her, but he denied that he ever intended to marry Ms White;[22]
(o) his travels to Byron Bay and other towns on the New South Wales coast in 2008 with Ms White to look for an investment property which could be used by Ms White as a residence and gallery;[23]and
(p) while he agreed that his family did not approve of his relationship with Ms White, it was not family pressure that motivated him to end their relationship in October 2006, but the events in the days leading up to 28 October 2006.[24]
36 Mr Hume is adamant that he told Ms White in October 2006 (and afterwards) that their relationship was at an end, and that she did not return to Third Avenue after 28 October 2006.[25] However, Ms White saw the incident on 28 October 2006 as "just another separation" and that they reconciled within a matter of days, although she did concede that she left the bulk of her belongings at Eighth Avenue.[26]
37 The issue of whether Mr Hume and Ms White reconciled in the weeks between 28 October 2006 and 4 December 2006 is one of the few matters upon which there is a direct conflict of evidence between Ms White and Mr Hume (others being the sleeping arrangements of the parties when staying at Diamond Beach after December 2006, and whether or not sexual relations were solely at the instigation of Ms White, or otherwise). While their account of events and conclusions to be drawn from these events differs, much of the differences can be attributable to differences in interpretation, understanding, and, sometimes, such as with financial matters, confusion on the part of Ms White.
38 My finding in relation to this matter is significant, because it does bear upon the question of whether the domestic relationship ended in October 2006. If, as contended for by Ms White, the couple had reconciled in a matter of days, and stayed together at Third Avenue until December 2006, the relocation of Ms White from Third Avenue to Diamond Beach could be seen as simply a change in living arrangements rather than a fundamental change in the character of the couple's relationship.
39 On balance I accept Mr Hume's version of events when it comes to determining what occurred during this period. His affidavit evidence is cogent, and, given the chaotic nature and state of the documents filed by Ms White at the time Mr Hume swore his affidavit on 7 September 2010, his evidence was a fulsome narrative of what occurred, unprompted by any specified allegations or assertions of Ms White about the events of any particular time. While I suspect that in his affidavits Mr Hume may have slightly underplayed the character of the relationship after 2006 (for example, making no reference in his affidavits to his visit to Byron Bay with Ms White in 2008), his evidence regarding his living arrangements and financial affairs was well documented, and not disturbed at trial. At trial, Mr Hume was candid and frank in his response to the questions asked of him by me, his counsel, and Ms White. He freely and openly gave evidence about the nature and character of the relationship after October 2006, even where that evidence may not have been favourable to his case, such as his acknowledgment of the ongoing sexual relationship between him and Ms White, his fulsome description of his daily routine with Ms White while at Diamond Beach, and his investigation of options which would involve Ms White continuing to live indefinitely in a property on either New South Wales or Queensland owned by him.
40 Further, while I accept that Ms White generally and genuinely endeavoured to give truthful evidence, there were certain occasions when I felt her evidence was calculated to cast a better light upon her claim, and she often sought to gloss over or brush aside inconvenient facts. This tendency is consistent with Mr Hume's evidence regarding her response to his attempts to reach a financial agreement with her upon their separation, that is, she would do such things as put her fingers in her ears, or leave the room when he attempted to raise such matters.[27]
41 Further, while it is not entirely clear whether Ms White fully understood the potential implications of doing so, on two occasions she tendered to the Court documents which had been altered by her, being a copy of an AVO obtained by Mr Hume[28] and a handwritten proposed settlement agreement created by Mr Hume in October 2007 which included an analysis of the financial outcome of the sale of the shops. Her explanation to the Court was that she altered the documents because the original versions did not concur with her understanding of what had occurred, or what the true position was. While the alterations were relatively innocuous (changing the duration of the AVO from three years to five years, and striking out a reference to Capital Gains Tax payable upon the sale of the shops), and had no bearing whatsoever upon the outcome of the case, these instances do demonstrate Ms White's tendency to fashion her evidence and present her case in a manner calculated to improve her position.
42 However, I accept that most of the differences in the evidence of the parties can be explained by differing interpretation of events, and that Ms White's conviction, whether correctly held or not, that she and Mr Hume remained in an intimate and loving relationship until about February 2009, was genuine. This matter is relevant to the question of whether an extension of time should be granted.
43 Ms White placed a great deal of reliance upon the handwritten document prepared by Mr Hume headed "If we sold the shops only".[29] The document is undated, and appears to have been prepared as an aid to making a decision as to whether to sell the shops, whether to build on the adjacent vacant land at Lot 160, and, if so, where would the couple live during the construction period, and canvassed the option of leasing back the shops from the new owner during the construction period. Ms White relied upon this document, which she asserts was prepared in 2007,[30] in support of her contention that the Diamond Beach properties were owned jointly by her and Mr Hume, as evidence of the ongoing domestic relationship, and as evidence of the couple's plans to construct a combined gallery/residence at Diamond Beach.
44 There was some uncertainty and confusion among both parties as to when this document was created. In his oral evidence, Mr Hume stated that he thought that it was created in 2006, and before 2007, but in the end, he really didn't remember.[31] In my view, taking into account all of the evidence and the circumstances of the case, the most logical conclusion is that the document was created in mid to late 2005. The development approval for the shops was obtained in about May 2005, and the evidence is that the shops were put on the market in late 2005.[32] Also, during the latter part of 2005, Ms White and Mr Hume were definitely living together as a couple, and making plans about their future at Diamond Beach. However, the use of the term "we" when discussing options does not elevate the document to evidence of joint ownership of Mr Hume's properties at Diamond Beach.
45 Viewing the evidence in the context of the matters referred to in s 35(2) of the Relationships Act, which are in identical terms to the provisions of Part IX of the Property Law Act, which it replaced, I would make the following observations:
(a) there was no mutual commitment to a shared life after October 2006. While Ms White believed that "while she had her gallery, she had her relationship", and that she continued to play the role of a loving and supportive partner while Mr Hume stayed at Diamond Beach, Mr Hume is adamant that, as far as he was concerned, the relationship was over as of 28 October 2006, and that he had made that abundantly clear to Ms White. His various attempts between 2007 and 2009 to arrange for a financial settlement with Ms White are consistent with this view. It may well be that Mr Hume's conduct in regularly visiting Diamond Beach, and, while there, maintaining a companionable and intimate relationship with Ms White may have been inconsistent with this adamant view, and may well have contributed to Ms White's hopes and perceptions regarding the relationship. However, I accept that there was no mutual commitment to a shared life after October 2006;
(b) the duration of the relationship is a factual matter in dispute in this proceeding;
(c) I accept Mr Hume's largely uncontested evidence that after October 2006 that he spent less than twenty per cent of his time living with Ms White at Diamond Beach, and that his permanent residence was in Anglesea. The calendar shows that Mr White stayed in Diamond Beach from 6 to 17 December 2006; from 21 to 25 January 2007; from 29 April 2007 to 14 May 2007; from 22 February to 10 March 2008; from 19 April to 25 April 2008; from 8 June to 21 June 2008; from 1 July to 20 July 2008; from 21 October to 31 October 2008; and for periods between 19 November and 27 December 2008. In 2009, Mr Hume was in Diamond Beach between 6 March 2009 and 14 April 2009, with a ten day break in the middle, but the annotations to the calendar stated that he spent most nights in Taree with a friend. He was in Diamond Beach from 26 June to 30 June 2009, and his final visit was in September 2009 when he collected Ms White to return her to Anglesea;
(d) the existence of a continued sexual relationship between the parties is a factor in favour of determining that a domestic relationship existed;
(e) Ms White continued to be financially dependent upon Mr Hume after October 2006, which is consistent with the continuation of a domestic relationship. Mr Hume gave evidence that he suggested that Ms White apply for government benefits (which is consistent with his view that there was no domestic relationship because, given his income and asset position, Ms White would not be eligible for government benefits if she was his defacto partner), but that Ms White refused. Ms White's explanation at trial for not applying for government benefits was that she still had a partner;[33]
(f) there were no assets jointly owned or jointly acquired by the couple, although Ms White resided at properties owned or leased by Mr Hume until September 2009, and at least for some period in 2008, it appeared to be in the contemplation of the parties that Ms White might relocate to another property owned by Mr Hume if a suitable property could be located;
(g) there were no children of the relationship; and
(h) the "reputation and public aspects of the relationship" is, in my view, a neutral factor in determining whether a domestic relationship existed after October 2006. There is little probative evidence on the point, such as evidence as to whether the parties entertained regularly as a couple, or socialised as a couple while at Diamond Beach. However, presumably the fact that Mr Hume regularly stayed at Diamond Beach was not a secret to anyone, and members of the local community may well have assumed that they were a couple. But very little turns upon such matters in the circumstances of this case.
46 On balance, taking all of the above factors into account, my conclusion is that while the parties maintained a companionable and sometimes intimate relationship up until the early part of 2009, the relationship did not have the character of a domestic relationship after 28 October 2006. Mr Hume permanently resided at Third Avenue, and, while he no doubt felt compelled to provide ongoing support, particularly financial support, to someone in such a vulnerable position as Ms White, the relationship did not, in my view, have the necessary degree of mutuality to constitute a domestic relationship. The attempts by Mr Hume to achieve a financial settlement with Ms White were powerful evidence of this, and Ms White's refusal to engage with that process cannot alter that lack of mutuality.
47 While a "mutual commitment to a shared life" is but one factor in determining whether a domestic relationship exists, it is a significant factor. There would be no doubt many instances when a court would find that, despite the fact that a couple lived apart for employment or other reasons, the relationship was of a sufficient character to justify a finding that they maintained an ongoing domestic relationship. But to make such a finding, one would expect to see evidence of ongoing communication between the parties during their time apart, such as telephone calls, letters or emails. No such evidence was presented to the Court by either party, and the results of my attempts to elicit such evidence from Ms White during the course of the hearing led me to conclude that there was limited, if any, communication between Ms White and Mr Hume when Mr Hume was not at Diamond Beach. While Ms White did give evidence that in 2008 she telephoned Mr Hume to discuss the share market,[34] this was denied by Mr Hume.[35] I believe a statement made by Ms White during her evidence that "he did ring me by the way occasionally"[36] was made in response to the interest I had demonstrated in the communications between the parties through my questions.[37]
48 Further, while there was no direct evidence regarding this point, I note that on 17 September 2009 Mr Hume and his current domestic partner, Ms Kelliher, settled their joint purchase of an investment property in Port Macquarie, New South Wales. While it is conceivable that they made the decision to enter into this transaction prior to entering into an intimate relationship, one can readily infer that they had been in a relationship for at least some time before that. Again, while that is not determinative, it is conduct consistent with Mr Hume's position that his relationship with Ms White was over.
49 Accordingly, despite Mr Hume's regular visits to Diamond Beach, his ongoing financial support for Ms White until September 2009, and the maintenance of some degree of sexual intimacy, at least in the period up to and including Christmas 2008, I accept that, after the separation on 28 October 2006, the parties were not living together in a relationship as a couple on a genuine domestic basis.
50 There have been a number of cases in the state courts and the Family Court where judges have had to consider the often vexed question of whether the parties to a proceeding were living together as a couple on a genuine domestic basis. It has been stressed that while the matters set out in s 35(2) of the Relationships Act are all matters which could and should be taken into account, no one factor is determinative, and it is important for the Court to stand back and look at the relationship as a whole.[38] The task of determining whether the character of a relationship has the necessary character of a domestic relationship, and the somewhat nebulous and fluid nature of the inquiry as to whether parties are or were "a couple", was described by Murphy J in Jonah v White:[39]
In my opinion, the key to that definition is the manifestation of a relationship where "the parties have so merged their lives that they were, for all practical purposes, 'living together' as a couple on a genuine domestic basis". It is the manifestation of "coupledom", which involves the merger of two lives as just described, that is the core of a de facto relationship as defined and to which each of the statutory factors (and others that might apply to a particular relationship) is directed ...
It seems to me to be clearly established by authority that the fact that, for example, the parties live in the same residence, for only a small part of each week does not exclude the possibility that they are "living together as a couple on a genuine domestic basis" or that the maintenance of separate residences is necessarily inconsistent with parties having a de facto relationship ...
The issue, as it seems to me, is the nature of the union rather than how it manifests itself in quantities of joint time. It is the nature of the union - the merger of two individual lives into life as a couple - that lies at the heart of the statutory considerations and the nonexhaustive nature of them and, in turn, a finding that there is a "de facto relationship".
51 In the current case, after October 2006, the character of the relationship can be summarised as follows:
(a) Ms White moved to Diamond Beach, in part because of her enjoyment of the climate, lifestyle and environmental quality of the town, in part because of her enjoyment in managing the gallery, and, possibly, to escape some difficult family relationships in Victoria;
(b) Mr Hume continued to regularly visit Diamond Beach, sometimes in combination with travels elsewhere (as his circumstances permitted him to do), to inspect and maintain his properties (then a substantial part of his investment portfolio), and in part because of his enjoyment of the climate and leisure opportunities. It was convenient to visit there in conjunction with other holidays, and, possibly, out of concern and affection for Ms White;
(c) while the day to day activities engaged in by the parties while at Diamond Beach did not seem to be substantially different to those during their previous stays, there were some material differences, being the maintenance of separate bedrooms, the acknowledgement by both parties that the arrangement must be temporary pending the sale of the shops (while Ms White gave evidence that she did not want Mr Hume to sell the shops, and on occasion took steps to dissuade potential buyers, she did acknowledge that she knew the shops were on the market), and the regular attempts by Mr Hume to engage Ms White in discussion regarding a proposed financial settlement;
(d) it appears that the timing and length of Mr Hume's visits was not the subject of prior mutual discussion and agreement, but rather Mr Hume came and went as he pleased;
(e) there appeared to be limited, if any, communications between the parties when Mr Hume was not at Diamond Beach; and
(f) Mr Hume's ongoing financial support for Ms White was motivated out of concern for Ms White's welfare, given her past mental health problems and apparent inability to maintain herself.
52 Accordingly, while the parties maintained some friendship and companionship, with such companionship occasionally extending to sexual encounters, their lives were not "merged" in the manner necessary to constitute the ongoing existence of a domestic relationship.
53 Further, the evidence regarding the statements and conduct of Mr Hume on and after 28 October 2006 is consistent with the domestic relationship coming to an end. The question of whether a domestic relationship has broken down (like the question of whether a domestic relationship exists) is a question of fact, not perception. Therefore, Mr Hume's assertion that he considered that, as from 28 October 2006, the relationship between him and Ms White was at an end is merely one matter to be taken into account. However, the authorities make it clear that, in cases where one party asserts that a domestic relationship had broken down at a particular time, the onus is on the party asserting the continuing relationship to prove that the relationship did continue, and that it maintained the necessary character as a domestic relationship.[40]
54 In "Family Law in Australia"[41] the learned authors summarised the authorities regarding the determination of the question of whether a domestic relationship has ended as follows:
Evidence of the respondent's intention to end the relationship and that their actions were such that the relationship can not be seen to have continued as one couple living together on a genuine domestic basis from an objective viewpoint, will go a long way to defeat the applicant's ability to discharge the onus they bear.
55 Furthermore, it appears that, if there is an intention on the part of one party to end the relationship, and there is evidence that that party communicated that intention and/or acted consistently with that intention, subsequent conduct which may appear to be ambivalent or ambiguous does not negate a finding that the relationship has, in fact, ended, notwithstanding that the party asserting the continuation of the relationship does not accept that the relationship had come to an end. In Clisbey v Viges[42] Stevenson J held that a relationship ended on a particular date, notwithstanding the fact that the party asserting the earlier end of the relationship had continued to express strong feelings for his former partner, and had urged that there be a reconciliation.
56 In the current case, despite the assertion of Ms White that the separation on 28 October 2006 was "no different from any other time Tony called a separation", the evidence is that he did communicate to Ms White that the relationship was at an end, and acted consistently with that communication (for example, building an extra bedroom at Diamond Beach, and attempting to achieve a financial settlement with Ms White), notwithstanding his later visits to Diamond Beach and, by, on occasion, engaging in sexual relations with her.
57 The implications of my finding that the parties' domestic relationship ceased in October 2006 are as follows:
(a) the duration of the domestic relationship was less than four years rather than seven years;
(b) Ms White would need to succeed in an application to extend time in order to obtain any relief under the Relationships Act; and
(c) if, as contended by for counsel for Mr Hume, the provisions of Part IX of the Property Law Act govern Ms White's rights rather than the relevant provisions of the Relationships Act, then Ms White has no ability to make a claim for ongoing maintenance from Mr Hume.
58 The issue raised by paragraph (c) above may be only of academic interest in this case, as, contrary to Ms White's earlier formulation of her claims at trial, Ms White did not pursue a claim for ongoing maintenance from Mr Hume, but referred only to a claim for a purpose built gallery upon lot 160, Diamond Beach to be funded by Mr Hume.[43] However, there was a reference to a claim for maintenance in her final written submissions.
59 Having found that the domestic relationship ended in October 2006, it is necessary to determine whether leave should be granted to Ms White to bring a claim out of time, that is, outside the two year period provided for by s 43(1) of the Relationships Act. Section 43(2) of the Relationships Act provides that:
A court may grant leave to a domestic partner to apply for an order at any time after the end of the period referred to in subsection (1) if the court is satisfied that greater hardship would be caused to the partner applying if that leave were not granted than would be caused to the other partner if that leave were granted.
60 The test under s 43(2) is materially less strict than, say, the provisions of s 5 of the Limitations of Actions Act 1958 (Vic). This presumably reflects the different policy considerations which may underlie the different provisions. The limitation period in the Relationships Act is no doubt imposed to enable separating partners to structure their affairs and move on with their lives with some degree of certainty after separation. However, these considerations differ from the policy considerations underlying the Limitations of Actions Act, which are more concerned with commercial certainty, and the practical difficulties of responding to old claims, such as the retention of documents and the recollection of witnesses. Such considerations loom less significantly in the family law context, thus the more liberal approach to allowing parties to bring claims outside the limitation period. The more liberal approach also recognises the peculiar features of the family law jurisdiction which might affect a party's ability or willingness to bring a claim: emotional distress, an imbalance of power within the relationship, financial incapacity, or, as in the current case, some degree of ambiguity in the nature of the relationship post-separation.
61 In the current case, in my view, the circumstances are such that Ms White should not be barred from bringing a claim merely on the grounds that it is statute barred. Rather, her claim should be dealt with upon its merits. My reasons in support of granting an extension of time are as follows:
(a) while I have found that there is insufficient cause for me to form the view that Ms White's past or current mental health problems warrant the appointment of a litigation guardian, it is apparent that Ms White is peculiarly vulnerable and somewhat unworldly, and indeed, Mr Hume has given evidence that his ongoing support for her after October 2006 was substantially motivated by his concerns for Ms White's health and wellbeing and apparent inability to support herself;
(b) while there is some evidence to suggest that Ms White knew in 2007 and 2008 that the relationship was at an end (apart from the statements of Mr Hume himself), such as her conversations and correspondence with solicitors, and her acknowledgement of receipt of some of the proposed settlement agreements, it may well be that she considered that "while she had the gallery, she had the relationship";
(c) Mr Hume's conduct in continuing to visit Diamond Beach, the maintenance of a sexual relationship in some form, and Mr Hume's endeavours in 2008 to locate an alternative property in which she could live and work no doubt contributed to the ambiguity of the status of the relationship, at least in Ms White's eyes; and
(d) Ms White's poor financial position means that she should not be lightly shut out from pursuing a genuine claim. In contrast, Mr Hume's position is such that he is not prejudiced by a late claim. At no time before or after the expiry of the two year period in late 2008 has he been impeded from conducting his affairs: indeed, during that period he has bought and sold property, both on his own account and with his current partner, and was actively trying to achieve a financial settlement with Ms White notwithstanding the expiry of the relevant limitations period.
62 Having found that Ms White and Mr Hume were in a domestic relationship between March 2002 and October 2006, and that Ms White should have leave to bring an application out of time for an order under section 41 of the Relationships Act, it is necessary to determine whether the Court has the jurisdiction to make any order, Section 41(1) of the Relationships Act provides as follows:
(1) A domestic partner may apply to a court for either or both of the following-
(a) an order for the adjustment of interest with respect to the property of one or both of the domestic partners;
(b) an order for the granting of maintenance.
63 The question of whether Ms White has an entitlement to seek an order for the granting of maintenance under s 41(1)(b) of the Relationships Act by reason of the terms of s 74 of the Act ("transitional provisions") is considered in a later section of this judgment.
64 A former domestic partner seeking an order under s41(1) must satisfy certain jurisdictional requirements, as set out in s 42 of the Relationships Act.
(2) A court may make an order referred to in section 41(1) on the application only if satisfied-
(a) that one or both of the domestic partners lived in Victoria on the day on which the application was made; and
(b) that -
(i) both partners have lived together in Victoria for at least one third of the period of their relationship; or
(ii) substantial contributions of the kind referred to in section 45(1)(a) or (b) have been made in Victoria by the partner making the application; and
(c) that the domestic partners have lived together in the relationship for a period of at least 2 years, except as provided by subsection (3).
(3) Despite subsection 42(c), a court may make an order if satisfied-
(a) that there is-
(i) a child of the domestic partners; or
(ii) a child accepted by the domestic partners as one of the family, whether or not the child is a child of one or both of the partners; or
(b) that-
(i) failure to make the order would result in serious injustice to the domestic partner who applied for the order; and
(ii) the partner who applied for the order has made substantial contributions of the kind referred to in section 45(1)(a) or (b) for which that partner would otherwise not be adequately compensated if the order were not made.
(4) If a court is satisfied about the matters specified in subsection (2)(a) and (b), it may make or refuse to make an order because of facts and circumstances even if those facts and circumstances, or some of them, occurred before the commencement of this Part or outside Victoria or both.
65 Subject to these jurisdictional threshold requirements being met, s 45 of the Relationships Act provides that:
(1) On an application by a domestic partner under section 41 for an order to adjust interests with respect to the property of one or both of the domestic partners, a court may make an order adjusting the interests of the domestic partners in the property of one or both of them that seems just and equitable to it having regard to-
(a) the financial and non-financial contributions made directly or indirectly by or on behalf of the domestic partners to the acquisition, conservation or improvement of any of the property or to the financial resources of one or both of the partners; and
(b) the contributions, including any contributions made in the capacity of homemaker or parent, made by either of the domestic partners to the welfare of the other family constituted by the partners and one or more of the following-
(i) a child of the partners;
(ii) a child accepted by the partners as one of the family, whether or not the child is a child of one or both of the partners; and
(c) the nature and duration of the domestic relationship; and
(d) any relevant matter referred to in section 51.
66 In my view, Ms White has satisfied the jurisdictional requirements under s 42(2) of the Relationship Act, in that:
(a) both Ms White and Mr Hume lived in Victoria on the date when the application was made;
(b) the best evidence available is that the parties lived together in Victoria for the bulk of the period between 2002 and 2006, notwithstanding frequent trips to Diamond Beach between 2003 and 2006; and
(c) while these issues are discussed more fully in discussing what adjustments, if any, ought to be made in favour of Ms White, I consider that Ms White has made contributions of substance to the welfare of Mr Hume in Victoria, noting that contributions made outside Victoria are relevant in the exercise of the Court's discretion whether to make an order.
Should an adjustment be made in favour of Ms White?
67 Having been satisfied that the Court has jurisdiction to make an order under s 45, the question turns to whether such an order ought to be made, and if so, the nature and quantum of any such order. In determining whether to make an order, I am mindful of the following matters:
(a) Section 41(4) provides that, in determining whether to make an order, contributions made by an applicant outside Victoria may be taken into account as matters which are particularly relevant in the current case; and
(b) there seems to me to be no reason, based upon the language of s 45, to limit the assessment of the value of financial and nonfinancial contributions of each party to contributions made during the period in which the parties were in a domestic relationship, particularly in the circumstances of the current case. [44]
68 Prior to examining the relative contributions of the parties, it is helpful to outline the financial position of the parties during the relevant period.
69 Mr Hume, in his affidavits sworn on 22 November 2010 and 26 March 2011, along with his oral evidence at trial, provided a comprehensive summary of his asset position and significant property transactions over the period from early 2002 to the date of trial. The only real disputes that Ms White had with Mr Hume's evidence regarding his asset position were as follows:
(a) she insisted that Mr Hume had purchased a property at Peregian Beach, Queensland with the proceeds of the sale of the shops;
(b) she believed that Mr Hume owned substantially more ANZ shares than disclosed in his affidavits;
(c) she asserted that a parcel of "Oil Search" shares were purchased by Mr Hume for her, and that profits from the sale of those shares had been used by Mr Hume to invest in properties purchased by him in Anglesea; and
(d) she believed he had inherited $10 million from his mother.
70 None of the above contentions were borne out by any documentary evidence. In any event, none of these contentions could, if made out, displace the accepted position that as at 2002, 2006, 2009 and 2012 (the time of trial), Mr Hume and entities controlled by him held substantial assets in the form of real estate, shares, and cash, and that the value of these assets increased owing to the increased value of those assets, the sale of properties and the investment of the proceeds in further assets, the inheritance of further assets from his mother, and substantial distributions from a private company controlled by his father, Anberton Pty Ltd ("Anberton"). The only relevant issue in this proceeding is whether Ms White made a contribution to the acquisition and upkeep of these assets, or contributed in some way to the growth in their value.
71 Ms White, on the other hand, had no substantial assets at the start of the relationship, the end of the relationship, and at the time of trial. At best, she has an expectation that she may inherit one third of her parents' assets, being the property at Eighth Avenue (there is some evidence that its value is somewhere in the order of $600,000), and possibly her parents' home in Maidstone, on the assumption that her parents owned this home outright. Given Ms White's evidence at trial that her mother is 93 years of age, these expectations might be realised in the not too distant future.
72 In March 2002 Mr Hume held the following assets:
(a) Third Avenue, valued at approximately $340,000;
(b) various cash and shares totalling $889,840.46;
(c) chattels and a motor vehicle valued at approximately $100,000; and
(d) superannuation: $94,500.
73 In October 2006, Mr Hume either on his own account, or through Hume Investments and Equities Pty Ltd ("Hume Investments"), owned the following assets:
Lots 159, 160 and 161 Diamond Drive, Diamond Beach
Chattels and a motor vehicle valued at approximately
74 In May 2012, when the trial commenced, Mr Hume, either on his own account or through Hume Investments or the Nairn Trust, owned the following assets:
75 Also, during the relevant period, Mr Hume held a parcel of nonvoting shares in Anberton. His shareholding increased following the death of his mother. He also received dividends from Anberton, at the discretion of his father, which increased from $40,000 per annum to $80,000 per annum over the past decade.
76 Ms White conceded that, apart from some exceptions which are discussed below, she did not make any significant contributions of a financial nature to the relationship. [45] Further, when Ms White in her affidavit evidence, did suggest that she purchased particular items (such as the purchase of signage at the Diamond Beach gallery), or did physical work to Mr Hume's properties of a particular nature or value (such as the rendering at Third Avenue), that evidence was consistently and comprehensively refuted by Mr Hume.
77 Ultimately, it was accepted by Ms White that she made no direct contribution to the acquisition of assets by Mr Hume, and that Mr Hume supported them both, and "paid all the bills". However, she did make the following assertions regarding her contributions to Mr Hume's economic welfare:
(a) she contributed generally to the upkeep of Third Avenue, thereby assisting in the "conservation" of that property;
(b) she materially contributed to the value of the shops, through housekeeping, maintenance and improvement;
(c) she contributed to the increase in the value of the shops by providing moral and logistical support to Mr Hume through the process of obtaining a development approval for the property, and the management and development of the gallery business; and
(d) she assisted Mr Hume in preserving and increasing the value of his share investments by providing moral support and usual advice during the period of share market volatility associated with the Global Financial Crisis.
(a) apart from participating in a botched rendering project at Third Avenue, Ms White made no financial or other contribution which would have preserved or increased the value of Third Avenue;
(b) Ms White made no financial or other contributions to the shops or the other Diamond Beach properties which would have preserved or increased their value. The shops were sold on a freehold basis, not including the gallery business and the current owners use the shops for their own business;
(c) the development approval for the shops, which did enhance their value, was obtained with the assistance of paid consultants;
(d) Ms White did not provide him with any advice regarding share transactions during the global financial crisis; and
(e) he paid all of the couple's living expenses during the period of their domestic relationship and, during each of his visits to Diamond Beach after December 2006, he restocked the kitchen with groceries and provided Ms White with cash for her living expenses.
79 I generally accept Mr Hume's evidence regarding contested matters, such as the value of the rendering project, and Ms White's provision of financial advice regarding the share market. In any event, such contributions would have been relatively minor given Mr Hume's asset position, and, since about 2007, Mr Hume appears to have shifted the substantial part of his wealth out of share investments into real property and superannuation.
80 However, while I accept that the financial contributions made by Mr Hume to Ms White far outweighed any contributions made by Ms White to Mr Hume's assets or financial welfare, I consider that Ms White did make a contribution to the conservation of the value of the shops after December 2006, simply by reason of her ongoing occupation and operation of the gallery business from the premises.
81 While Ms White did occupy the shops rent free, the evidence is that Mr Hume had formed the view early on that it would be very difficult to lease the shops, owing to a new retail development nearby. Also, it proved to be quite difficult to sell the shops, and the evidence is that they were on the market for about two and a half years before the contract of sale was entered into in late 2007. The parties gave evidence that they were subject to harassment and threats by local youths (of sufficient severity to justify Mr Hume engaging solicitors to apply to a court for AVOs on his behalf.) There is also evidence that Mr Hume was concerned about vandalism. Accordingly, while Ms White did not contribute financially to the shops, enjoyed the benefit of rent free accommodation, and by her own admission, had on occasions actively deterred potential buyers from inspecting the shops, her continued occupation of the shops between December 2006 and June 2008 assisted in conserving their value and maximising their sale price by deterring the vandalism and general deterioration in condition that would no doubt have occurred had the shops been unoccupied during that time. After all, while Mr Hume visited Diamond Beach from time to time, his evidence was that he did not want to live there, and in fact, did not live there. Accordingly, there was some contribution by Ms White to the conservation of the value of the shops. As indicated above, I consider that I am able to take into account contributions made by parties to the welfare of each other outside Victoria, and after they were no longer in a domestic relationship.
Non-financial contributions made by the parties
82 Ms White relies substantially upon other nonfinancial contributions to the relationship and Mr Hume's welfare in this proceeding. In addition to the moral and emotional support she provided as a "devoted partner", she kept house at Anglesea and Diamond Beach, and at Diamond Beach she continued to provide Mr Hume with meals, companionship, and sexual and emotional intimacy. Further, she gave evidence of specific instances of assistance and support to Mr Hume: caring for him when he was ill, cutting his hair, and looking out for him at the beach while he was surfing. She provided support and encouragement to Mr Hume during the process of obtaining development approval for the shops, the process of applying for and obtaining the AVOs, and when Mr Hume was concerned for the value of his investments during the global financial crisis.
83 In response, while he denied that Ms White either cut his hair or looked after him while he was ill, Mr Hume acknowledged that Ms White did provide him with emotional and moral support over the years, including the period after their domestic relationship ended.[46] However, he considered that these contributions were mutual, and that he provided Ms White with particular support during the period prior to the rescission of her Community Treatment Order, while she was still being heavily medicated. He gave evidence that at all times they shared domestic duties such as cooking and cleaning. Further, Ms White's ongoing mental health issues and occasionally erratic behaviour caused him concern and detracted from the quality of the relationship, and there were numerous separations between 2003 and 2006.[47]
84 On balance, I find that Ms White did make material nonfinancial contributions to the welfare of Mr Hume. The fact that Mr Hume also provided support to Ms White does not detract from that finding.
85 Section 45(1)(d) of the Relationships Act provides that in making a determination as to whether an order ought to be made for an adjustment of property, and the amount of any such adjustment, the Court should have regard to "any relevant matter referred to in section 51".
86 The factors which are set out in s 51(1) and (2) of the Relationships Act which are or may be relevant to the making of an order under s 45 are as follows:
(1) On an application by a domestic partner under section 41 for an order for maintenance, a court may make the order if satisfied that the applicant is unable to support himself or herself adequately because-
(a) the partner's earning capacity has been adversely affected by the circumstances of the domestic relationship; or
(b) of any other reason arising in whole or part from the circumstances of the domestic relationship.
(2) In determining whether to make an order and in fixing any amount to be paid under the order, a court must have regard to the following-
(a) the income, property and financial resources of each domestic partner (including, subject to subsection (3), the rate of any pension, allowance or benefit paid, payable or entitled to be paid to either partner) and the physical and mental capacity of each partner for appropriate gainful employment;
(b) the financial needs and obligations of each domestic partner;
(c) the responsibilities of either domestic partner to support any other person;
(d) the terms of any order made or proposed to be made under section 45;
(e) any payments provided for the maintenance of-
(i) a child of the domestic partners; or
(ii) a child accepted by the domestic partners as one of the family, whether or not the child is a child of one or both of the partners;
(f) the standard of living that is reasonable for each domestic partner in all the circumstances;
(g) the extent to which the payment of maintenance to the domestic partner whose maintenance is under consideration would increase his or her earning capacity by enabling him or her-
(i) to undertake a course of education or training; or
(ii) to establish a business; or
(iii) otherwise to obtain adequate income;
(h) the extent to which the domestic partner whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other partner;
(i) the age and state of health of each domestic partner;
(j) the length of the domestic relationship;
(k) the extent to which the domestic relationship has affected the earning capacity of the domestic partner whose maintenance is under consideration;
(l) any other facts or circumstances the court considers relevant.
87 Section 51(1) imposes a threshold requirement enlivening the Court's jurisdiction to make an order for maintenance. In the current case, for reasons which are elaborated upon further in a later section of this judgment, I do not consider that in the current case that the jurisdiction is enlivened. However, that does not preclude me from taking the matters cited in s 51(2) into account when determining whether to make an order under s 45(1), in particular, the matters referred to in s 51(2)(a), (b), (f), (i) and (j).
88 In relation to (a) and (b), being the income, property and financial resources of each partner, and the physical and mental capacity of each partner for appropriate gainful employment, and the financial needs and obligations of each party, I would make the following observations:
(a) Ms White has no income apart from government benefits, no assets, and is dependent upon her family for accommodation. The prospects of her gaining remunerative employment are close to zero. On the other hand, Mr Hume has substantial assets, and is able to support himself comfortably upon his earnings from investments; and
(b) the domestic relationship was relatively short, and Ms White's financial position and earning capacity was not adversely affected by it or the circumstances of the relationship. Indeed, her standard of living almost certainly improved by reason of her relationship with Mr Hume.
89 Accordingly, while Ms White is in some need, and could certainly benefit from an adjustment in her favour, which Mr Hume would have more than adequate capacity to accommodate, the question remains whether, in the circumstances of the relationship, Mr Hume is obliged to make provision for Ms White over and above an amount which acknowledges and reflects her contributions merely by means of the disparity of their respective economic situations. In my view, given the length of the domestic relationship, the substantial financial support already provided by Mr Hume to Ms White, and the fact that no responsibility for Ms White's lack of assets or earning capacity can be sheeted home to Mr Hume or the circumstances of their domestic relationship, any adjustment in Ms White's favour by reason of such matters must be limited.
90 Counsel on behalf of Mr Hume submitted, in summary, that in circumstances where Ms White made no financial contributions, was indeed fully supported by Mr Hume for a number of years, and where the non-financial contributions to each other could be considered to be equal, no order for adjustment ought to be made. Alternatively, he submitted that, if I were to find that it was appropriate that an order for an adjustment be made, the sum of $78,600, being thirty percent of the net sale proceeds of the shops (the amount offered by Mr Hume in 2008), would be just and equitable.
91 Accordingly, I find that it is appropriate that, by reason of Ms White's contribution to the conservation of the value of the shops, her material nonfinancial contributions to Mr Hume's welfare, and to a limited extent, her poor financial position, there should be an order for an adjustment of property in favour of Ms White, but not to the extent claimed by her.
92 In determining what adjustments ought to be made in cases such as these, the courts have generally adopted one of two approaches: the "global" approach, where the total pool of assets available is identified, and, taking all financial and nonfinancial contributions of the claimant into account, a percentage of the pool is awarded to the claimant, and any necessary adjustments are made such that the claimant is able to achieve an amount equivalent to that percentage. Alternatively, there is the "asset by asset" approach, where the parties' contributions to particular assets are identified and quantified, and aggregated to make an award. In recent times, the authorities have shown more favour to the global approach,[48] especially where there is a relationship of a lengthy duration, where there are children of the relationship, and where there has been a substantial contribution of one party of a nonfinancial nature, say, as a home maker and/or care giver.
93 In the current case, where the relationship was of relatively short duration, and a substantial proportion of Ms White's contributions are referable to a particular asset, being the shops, I propose to adopt a modified version of the "asset by asset" approach, by making an adjustment referable to her contribution to the shops, plus an additional (modest) lump sum to reflect her nonfinancial contributions to Mr Hume's welfare and her financial position.
94 The shops were purchased by Mr Hume on 29 June 2002 for $155,000 and sold by him in January 2008, with settlement of the sale taking place on 1 July 2008, for $310,000. Accordingly, the value of the shops increased by $155,000 over the period. However, it is necessary to take into account the costs of the sale of the shops, being approximately $13,000,[49] Part of the net increase in the value of the shops of $142,000 must be attributed to the obtaining of a development approval for the property, although there is no evidence of what proportion of the increase in value which is attributable to the development approval, which was achieved primarily through the efforts of Mr Hume and a planning consultant engaged by him. The best I can do is make an estimate, and I estimate that fifty per cent of the increase in the value of the shops is attributable to the obtaining of a development approval for the shops. The remaining fifty per cent of the increase can be attributable to the efforts of both Mr Hume and Ms White in conserving, improving, and maintaining the value of the shops. However, I note that the evidence shows that Mr Hume spent $10,000 upon renovations to the shops, and I will make a further adjustment in his favour to take that expenditure into account.
95 Once again, an apportionment of the balance of the increase in the value of the shops (being $61,000) between Ms White and Mr Hume necessarily involves the making of somewhat arbitrary estimates, which I will do based upon the respective length of time they each spent occupying the shops. The evidence is that, between April 2003 and December 2006, most time spent at Diamond Beach was spent together (Ms White made two trips alone). There is limited evidence as to the amount of time they spent there, but it appears that they resided primarily at Third Avenue. After December 2006, until settlement of the sale of the shops in July 2008, Ms White resided at the shops on a full time basis, while, on Mr Hume's own evidence, Mr Hume spent less than twenty per cent of his time there. Critically, Ms White occupied the shops for a substantial proportion of the period that the shops were on the market, the time during which their security and upkeep was most important. Based upon the evidence, and doing the best I can in the circumstances, I attribute two-thirds of fifty per cent of the balance of the value of the shops to the efforts of Ms White. Accordingly, I would make an adjustment of $42,667 in favour of Ms White by reason of her contribution to the conservation and maintenance of the value of the shops.
96 The determination of what adjustment is appropriate to make in recognition of Ms White's nonfinancial contributions to Ms White is necessarily an arbitrary exercise. Given the duration of the relationship and the substantial contributions made by Mr Hume to the welfare of Ms White, particularly his financial contributions, I do not consider it appropriate to make an award based upon a percentage of Mr Hume's total asset pool, but rather, will order that Mr Hume pay Ms White a sum of $42,667, being an amount equivalent to her contribution to the value of the shops in recognition of her nonfinancial contributions to Mr Hume's welfare, in circumstances where an award of such an amount would make some material difference to her financial position, without making an unfair and unwarranted impost upon Mr Hume's financial position, noting that his asset position is such that he could afford to make a payment to Ms White of $85,334 without the need to dispose of any real estate.
97 Finally, for completeness, it is necessary to deal with Ms White's claims for maintenance, and claims under the NSW Act.
98 Taking the latter first, I agree with the submissions of counsel for Mr Hume that this court has no jurisdiction to make orders under the NSW Act. Section 9 of the NSW Act provides as follows:
(a) the Supreme Court; or
(b) the Local Court,
for an order or relief under this Act.
99 Section 3 of the NSW Act defines the "Supreme Court" as the "Supreme Court of New South Wales". As such, this Court has no jurisdiction to make orders under the NSW Act.
100 In relation to a claim by Ms White for maintenance under s 51 of the Relationships Act, to the extent that such a claim is maintained by Ms White, counsel for Mr Hume submitted that, by reason of the transitional provisions, Ms White has no entitlement to claim spousal maintenance under s 41(1)(b) of the Relationships Act.
101 Section 74 of the Relationships Act provides as follows:
(1) Subject to this section, any right or entitlement that a person had under Part IX of the Property Law Act 1958 immediately before the commencement day is taken, on and after that day, to be a right or entitlement of the person under this Act.
(2) Despite its repeal, section 301 of the Property Law Act 1958, as in force immediately before the commencement day, continues to apply on and after that day in relation to any order made or injunction granted under Part IX of that Act before the commencement day.
(3) If an application for an order under Division 2 of Part IX of the Property Law Act 1958 was made before the commencement day but had not been determined before that day, the application is to continue to be dealt with on and after that day in accordance with Part IX of that Act as if that Part had not been repealed.
(4) In this section-
commencement day means the day on which section 72 comes into operation.
102 The commencement day was 1 December 2008, that is, after the end of the domestic relationship, but prior to the issue of this proceeding.
103 I am not entirely convinced by the submissions of counsel for Mr Hume that the terms of s 74(1) precludes Ms White from making a claim for maintenance under the Relationships Act. One view of this sub-section is that it preserves existing entitlements under the Property Law Act, but does not preclude a party who issues a proceeding after 1 December 2008 from pursuing a claim under any relevant provision of the Relationships Act (subject to an extension of time being granted, if necessary), and that only those parties who issued a proceeding prior to 1 December 2008 are limited to the remedies available under Part IX of the Property Law Act.
104 However, it is not necessary for me to finally determine this question, as I have formed the view that, in any event, based upon the evidence, Ms White does not satisfy the jurisdictional threshold imposed by s 51(1) of the Relationships Act: that is, Ms White has not satisfied me that she is unable to support herself (or support herself adequately) by reason of her income earning capacity having been adversely affected by the circumstances of her domestic relationship with Mr Hume, or because of any other reason arising in whole or in part from the circumstances of their relationship.
105 First, while I can infer by reason of Ms White's lack of assets, reliance on government benefits and lack of legal representation, that she must live a modest lifestyle, she has not claimed or given evidence that she is in a desperate financial state or is unable to support herself. She has lived rent free at either Third Avenue, Diamond Beach, or Eighth Avenue for over ten years, and, as at the date of this judgment, presumably so at her mother's home in Maidstone. She has no one else to support, and is no doubt accustomed to living frugally.
106 In any event, as indicated earlier in this judgment, no responsibility can be sheeted home to Mr Hume, or the fact or circumstances of the relationship. It is not as if she gave up employment, or full time employment to take care of Mr Hume, or did so at his request or insistence, or that she had foregone any other employment or business opportunities in order to pursue the relationship. While it appears the relationship was volatile on occasion, there is no suggestion, even a faint one, on the evidence that Ms White was traumatised or otherwise adversely affected emotionally by the events and circumstances of the relationship. In any event, even if such a finding could be made, that would not be relevant as Ms White's capacity to gain employment or pursue financially successful business opportunities is and always has been limited. Accordingly, Ms White has been unable to satisfy me that an order for maintenance can be made. As such, it is not necessary to consider the factors set out in s 51(2) of the Relationships Act as to whether an order ought to be made, and if so, in what amount.
107 In conclusion, I will order that Ms White be granted leave to bring a claim out of time under s 42 of the Relationships Act, and order pursuant to s 45(1) of the Relationships Act that Mr Hume pay Ms White the sum of $85,334. I shall seek submissions from the parties regarding the form of any orders to be made, including any necessary declarations, what award of interest should be made, and the question of costs. In regard to the question of costs, I note that there have been a number of costs orders made against Ms White during the course of this proceeding: on 23 June 2010, 18 August 2010 (by reason of the orders made by Coghlan J on 10 September 2010), 3 May 2011, 20 October 2011 (fixed at $2,500), and 2 March 2012 (fixed at $4,900). No doubt these orders remain unsatisfied. In these circumstances, I would order that any order for payment be stayed until I have had an opportunity to determine the question of interest and costs, and whether any amounts owing by Ms White to Mr Hume in respect of costs ought to be setoff against any amount payable by Mr Hume to Ms White.
[2] Exhibit C, CB 128, being a handwritten document headed "If we sold the shops only".
[5] T12, 28-31; T45, 23-29; T56, 22-24, T106, 24-26, T 144, 1; and T146, 14-15.
[13] T 315, 2-22 and T 358, 19 to T359, 2.
[15] T359, 6-7, 27-31; T360, 1-8, including T359, 3 to T360, 8.
[16] Exhibit 9, CB 518.
[17] Exhibit F, CB 129 and T321, 13-31.
[28] Exhibit F, CB 137, and Exhibit A, CB 124.
[31] See T 319, 22-24; T 320, 16-18; T 371, 5-6 and 17-19.
[32] Paragraph 11.2.3 of the affidavit sworn by Mr Hume on 26 March 2011, and T 318, 6-16.
[35] See paragraph 18.3 of the affidavit of Mr Hume sworn on 26 March 2011.
[38] Moby v Shulter (2009) FLC 93-447 at [168]; Baker v Landon [2010] FMCAfam 280; (2010) 238 FLR 210 at 235.
[39] [2011] FamCA 221; (2011) 45 Fam LR 460, at 471-472, approved by the Full Court [2012] FamCAFC 200 at 44.
[40] See, for example, S v B (No 2) [2004] QCA 449; (2004) 32 Fam LR 429, at 439; Vine v Carey [2009] FMCAfam 1017 at [23].
[41] Young et al (8th Edition 2013) at 6-120.
[43] See pages 7-8 of Ms White's final written submissions.
[44] See, also, Kardos v Sarbutt [2006] NSWCA 11; (2006) 34 Fam LR 550.
[45] See, for example, T 122, 9-13, where Ms White described Mr Hume as "Mr Moneybags".
[46] See, for example, paragraphs 34.5 and 34.6 of the affidavit of Mr Hume sworn on 26 March 2011.
[47] See Mr Hume's evidence at T364, 18-25 and T366, 6-12.
[48] Apostilidis v Kalenik [2011] VSCA 307 [12]; Kenyon v Akeroyd [2008] VSCA 227 [10]; but cf Smith v Gould [2012] VSC 461 [72].
White
Hume [2013] VSC 95
(2010) 238 FLR 210
(2011) 45 Fam LR 460
(2004) 32 Fam LR 429
(2006) 34 Fam LR 550