67 A great deal of the evidence was directed to the respective contributions of the parties to the development, restoration, and refurbishment of the various pieces of real estate owned by the parties, especially the Plaintiff, throughout the course of the relationship.
68 It is unnecessary for me to deal with each individual assertion and counter-assertion of the parties in respect to those contributions. In approaching a claim for the adjustment of interests of parties in property pursuant to section 20(1) of the Property (Relationships) Act, the Court should make a wholistic judgment, and should not attempt to evaluate the respective contributions of the parties as if it were undertaking a reductionist process analogous to the taking of partnership accounts (notoriously one of the most time consuming and expensive of litigious exercises). (See Davey v Lee (1990) 13 FamLR 688.)
69 In the instant case, suffice it to say that I am satisfied that the contributions of the Plaintiff were far less than asserted by her in her statement of claim and in her various affidavits, and that the contributions of the Defendant were greater than was conceded by the Plaintiff, even if they were not as great as the Defendant himself asserted.
70 Similarly, a great deal of evidence was directed to the respective contributions of the parties as homemaker and parent (especially as parent to the Plaintiff's son Kailin and to Luke, the child of the parties). Again, it is unnecessary for me to deal with each individual assertion by each party in regard to those contributions. I am satisfied that the contributions of the Plaintiff in this regard were greater than those of the Defendant. Nevertheless, I do not accept the assertions of the Plaintiff that the Defendant made little or no contributions in the capacity of homemaker or parent. I am satisfied that the Defendant, although his contributions in such capacities were less than those of the Plaintiff, did make significant contributions as homemaker and parent.
71 Evidence was presented concerning the financial and material circumstances of the parties (in particular of the Plaintiff) since the date of the termination of the de facto relationship (whether that termination took place in May 2001 or some five and half months later).
72 It should be recognised that the purpose of the Property (Relationships) Act is remedial (see New South Wales Law Reform Commission Report on De Facto Relationships, quoted by Gleeson CJ and McLelland CJ in Eq in Evans v Marmont (1997) 42 NSWLR 70 at 80-81; Jones v Grech [2001] NSWCA 208 per Ipp AJA at 76. The discretion vested in the Court by section 20(1) of the Act is to be exercised "having regard to" the contributions of the nature described in paragraphs (a) and (b) of that subsection.
73 In Roy v Sturgeon (1986) 11 NSWLR 454 Powell J (as he then was) said, at 464,
The fact that it is not the policy of the Act to elevate the status of a "de facto partner" to that of a party to a marriage, would, in my view, be enough to caution one against too readily embracing the decisions of the Family Court of Australia as to the matters to which that Court might legitimately have regard when dealing with applications under section 79 of the Family Law Act 1975 (Commonwealth). That caution is, however, reinforced by the fact that there are differences between the language of section 20 of the Act on the one hand, and of section 75(2) and section 79(4) of the Family Law Act 1975 (Commonwealth) on the other, which differences are, in my view, significant.
74 Powell JA in Jones v Grech, at 12, quoted the foregoing passage from his judgment in Roy v Sturgeon and emphasised that the statutory regime under the Property (Relationships) Act is different from that under the Family Law Act 1975 (Commonwealth). (See, also, Black v Black (1991) 15 FamLR 109 at 113 per Clarke JA; Wallace v Stanford (1995) 37 NSWLR 1 at 33 per Sheller JA; Evans v Marmont, supra, per Gleeson CJ and McLelland CJ in Eq.)
75 In Green v Robertson (1995) 36 NSWLR 96 Cole JA at 115-116, was of the view that the Court should have regard to contributions made to the date of the application (in distinction to contributions made merely to the date of the termination of the relationship). That was a proposition which Campbell J in Nguyen v Schieff (2002) 29 FamLR 177 found persuasive, the reasons for so finding his Honour repeated in Sullman v Sullman [2002] NSWSC 169. Nevertheless, there is no authority in either of those decisions for the Court to have regard to the present circumstances (especially the present needs of the parties), let alone to likely future needs of the parties.
76 In exercising the discretion vested in the Court by section 20(1) of the Property (Relationships) Act, it seems to me that, consonantly with the foregoing decisions of the Court of Appeal, the present financial and material circumstances of the Plaintiff and, in particular, her present needs should not be taken into consideration. The Court should not be diverted from the clear words of the statute in exercising its discretion to "make such order adjusting the interests of the parties in the property as to it seems just and equitable". The Court must have regard to the contributions of the nature then set forth in paragraphs (a) and (b) of the subsection. As I understand the foregoing decisions of the Court of Appeal, it is not legitimate for the Court to have regard to present or future needs of the parties; it should have regard only to contributions of the nature set forth in the subsection. (See Mathieson v Wallis [2001] NSWSC 931, McLaughlin M, 22 October 2001, an appeal from which was dismissed by the Court of Appeal on 11 October 2002, sub nomine, Wallis v Mathieson [2002] NSWCA 350.)
77 It is clearly necessary in this regard to exercise the caution counselled by Powell J in Roy v Sturgeon. The principles disclosed in the relevant provisions of the two statutes are that the Property (Relationships) Act looks to past contributions, whereas the Family Law Act looks also to present and future needs.
78 I propose, therefore, in considering the claim of the Plaintiff for adjustment of interests in property under section 20(1) of the Property (Relationships) Act to disregard evidence concerning her present and likely future needs.
79 The relief which the Plaintiff has ultimately sought is as follows:
1 and 2. Transfer to the Plaintiff of the Defendant's interest in the Gowrie Street property, with the Plaintiff being responsible for refinancing the mortgage presently secured on that property.
3. Payment to the Plaintiff of the balance of the proceeds of sale of the Susan Street property, presently invested in the joint names of the parties, together with interest thereon.
4 and 5. Transfer to the Plaintiff of the Defendant's interest in the holiday time-share, the Plaintiff to indemnify the Defendant in respect to the personal loan obtained by the parties in order to purchase that time-share.
6. Payment of $10,000 to the Plaintiff by the Defendant.
7. The Plaintiff to be solely responsible for and to indemnify the Defendant in respect to the Visa card.
8 and 9. Consequential orders and declarations.
10. Costs.
80 The Defendant consents to the relief sought in the foregoing items 4, 5 and 7. In addition, the Defendant by his cross-claim seeks his following relief:
1. Transfer to the Defendant of the Plaintiff's interest in the Gowrie Street property, subject to the existing mortgage.
2. Alternatively to item 1, the sale of the Gowrie Street property, and the net proceeds of sale (after payment of agent's commission, advertising expenses and legal costs) to be divided equally between the parties, the Defendant to be responsible for the payment of the outstanding mortgage.
5. Consequential orders and declarations.
6. Costs.
81 The substantial areas of dispute between the parties are the claims by each party to the entirety of the Gowrie Street property, and the claim by the Plaintiff to the entirety of the proceeds of sale of the Susan Street property and for the payment to her of the sum of $10,000.
82 I am not satisfied that the contributions of the Plaintiff to the acquisition, conservation and improvement of the Gowrie Street property were significantly greater than those of the Defendant - certainly not so much greater as to entitle the Plaintiff to receive the entirety, or any part, of the interest of the Defendant therein.
83 I consider that it is appropriate, as sought in the alternative relief claimed by the Defendant, that the Gowrie Street property be sold and that the net proceeds of sale (after payment of agent's commission, and legal and other costs and expenses) be divided equally between the parties.
84 The only asserted contribution of the Plaintiff towards the Susan Street property was the provision by her of the guarantee to the amount of $73,000. That guarantee was never called upon (indeed, the Defendant asserted that it was not at his request that it had been provided), and there was no evidence that the Defendant could not have acquired the Susan Street property without that guarantee. In my conclusion the Plaintiff has not made out any entitlement to receive any part of the moneys representing the proceeds of sale of the Susan Street property and interest thereon.
85 The contributions of the Plaintiff as homemaker and parent were somewhat greater than those of the Defendant in the same capacities. That fact, together with the fact that throughout the first period of the relationship and the early months of the second period the parties were residing in the Erskineville property which belonged to the Plaintiff, would in my conclusion entitle the Plaintiff to receive from the Defendant the payment of a relatively small monetary sum. I consider that $10,000 would be adequate.
86 I have already recorded that the Defendant consents to orders in respect to the time-share and the Visa card.
87 Similarly, each party sought a declaration to the effect that he or she is solely entitled to all property in the possession of that party at the present time. (The declaration sought by the Plaintiff in this regard expressly includes her superannuation benefits and insurance policies, and any liability in respect to any of the subject items of property.) I consider that it is appropriate that such a declaration be made.
88 As to costs, I consider that, in the context of the nature and ambit of the relief claimed by her, the Plaintiff can hardly be regarded as having been successful in the proceedings, even though she will receive payment of $10,000 from the Defendant. In my view it is appropriate that there be no order as to costs, to the intent that each party will bear her or his own costs of the proceedings.
89 However, if either party desires some other order in respect to costs, an opportunity will be available for such an application to be made.
90 I propose to stand the matter over for the bringing in of short minutes to reflect my foregoing conclusions, and for any application in respect to costs.
91 I make the following order: