Simone Starr-Diamond v Talus Diamond

The Legislative Framework 7Ms Starr-Diamond's Statement of Claim and Ms Talus Diamond's Cross Claim invoke jurisdiction conferred on this Court by the Property (Relationships) Act 1984 (NSW), s 20 which allows the Court to adjust the interests in property of parties to a domestic relationship. Section 20(1) relevantly provides: "20 Application for adjustment (1) On an application by a party to a domestic relationship for an order under this Part to adjust interests with respect to the property of the parties to the relationship or either of them, a court may make such order adjusting the interests of the parties in the property as to it seems just and equitable having regard to: (a) the financial and non-financial contributions made directly or indirectly by or on behalf of the parties to the relationship to the acquisition, conservation or improvement of any of the property of the parties or either of them or to the financial resources of the parties or either of them, and (b) the contributions, including any contributions made in the capacity of homemaker or parent, made by either of the parties to the relationship to the welfare of the other party to the relationship or to the welfare of the family constituted by the parties and one or more of the following, namely: (i) a child of the parties, (ii) a child accepted by the parties or either of them into the household of the parties, whether or not the child is a child of either of the parties. (2) A court may make an order under subsection (1) in respect of property whether or not it has declared the title or rights of a party to a domestic relationship in respect of the property." 8There is no issue as to the prerequisites to the Court's jurisdiction. The parties "have lived together in a domestic relationship for a period of not less than 2 years": Property (Relationships) Act, s 17. Ms Starr-Diamond brought her application within two years after the relationship ceased in July 2007: Property (Relationships) Act, s 18. 9Once a domestic relationship is proven, or conceded as it is here, and there is no other impediment to the Court's exercise of jurisdiction, the decided cases establish three distinct stages in the exercise of the jurisdiction under the Property (Relationships) Act, s 20. (a)The first stage is the identification and the valuation of the property of the parties to determine their "divisible pool of property". The property so identified is "the property of the parties to the relationship or either of them". Property (Relationships) Act, s 20 gives authority to the Court to adjust the parties' interests in this property. (b)The second stage is to identify, evaluate and weigh the parties' respective contributions of the various types referred to in the Property (Relationships) Act, s 20. This typically but not always results in the Court apportioning the overall s 20 contributions each party made up to the date of the hearing as a percentage. (c)In the third stage the Court determines what order is required sufficiently to recognise and compensate an applicant's contributions in the context of the contributions as a whole of both partners. This stage typically results in an order leaving the applicant with the percentage identified in the second stage of the divisible property identified in the first stage. 10The courts have repeatedly affirmed this three stage methodology: Evans v Marmont (1997) 42 NSWLR 70; Jones v Grech (2001) 27 Fam LR 711; [2001] NSWCA 208; and Kardos v Sarbutt (2006) 34 Fam LR 550. 11In the absence of a contest as to whether there was any domestic relationship between the parties, and subject to the issue of the precise length of the relationship, the stages identified in these authorities present for judgment in this case the following three main questions: (1) what is the parties' divisible pool of property? (2) what were their respective contributions that may be recognised under Property (Relationships) Act, s 20? And (3) what order, if any, as "seems just and equitable" should the Court make to adjust Ms Starr-Diamond's and Ms Talus DIamond's respective interests in their divisible pool of property to reflect and recognise their contributions? Those questions form the structure of this judgment. 12To reduce the risk of identity theft this judgment does not publish the full addresses of any of the properties the parties lived in or owned or now own. Nor are any bank account details published. If non-parties legitimately require such information it is obtainable from the Court's file. 13Ms Fiona Sinclair represented the defendant throughout the hearing during which the plaintiff was not legally represented. The plaintiff presented her own case. 14To understand the issues for determination more background of the course of the parties' relationship is needed. This background is set out in the form of a chronological survey and covers aspects of their respective s 20(1)(a) financial and non-financial contributions to their properties and to their financial resources. It also covers their respective s 20(1)(b) contributions to one another's welfare. These matters are the "focal points by reference to which the discretionary judgement as to what seems just and equitable [under s 20] must be made": Evans v Marmont (1997) 42 NSWLR 70 per Gleeson CJ and McLelland CJ in Eq at 79 G-80A. The parties were at issue about the extent of their relative contributions in each of these areas. In this background survey the Court makes findings as to their disputed relative contributions. This judgment finally deals with the parties' remaining contentions and the reasons through the three stages, in order to determine whether or not to make a s 20 order. 15The parties took issue with a great number of detailed matters and incidents in the competing accounts they each gave of the course of their relationship. Many of these matters and incidents were not the subject of cross-examination by either party. Many of the matters did not relate to assets or contributions of any material value. Many of the incidents were not material to the issues that the Court is required to decide. It is not necessary for the Court to determine what happened in relation to all these matters or incidents, for the Court to assess the three stages in the exercise of jurisdiction under Property (Relationships) Act, s 20. The account of the course of the parties' relationship set out below only makes findings on the issues material to the dispute between the parties. It does not make findings in relation to all matters and incidents, even though some of the non-considered matters and incidents were of passionate interest to one or other side in the proceedings. 16An assessment under Property (Relationships) Act, s 20 is different from one under the Family Law Act 1975 (Cth). As was explained by Gleeson CJ and McLelland CJ in Eq in Evans v Marmont (1997) 42 NSWLR 70 at 74B, it cannot now be suggested that one should approach an application for adjustment of property interests under the Property (Relationships) Act by beginning with an assumption that an equal division of property is appropriate and then asking whether the circumstances of the case require some departure from that position. But it also can no longer be contended that the contributions of a de facto partner as homemaker and parent should be regarded as in some way inferior to the corresponding contributions of a spouse: Evans v Marmont, at 74C.

Assessing the Plaintiff's and the Defendant's Credibility 17Both the plaintiff and the defendant were intensely bitter about one another's conduct during their relationship and upon its failure. This bitterness was evident in almost every sentence of their evidence. It was an odd rare moment that either the plaintiff or the defendant conceded some merit or good quality in the other. Each tended to identify the other as the source of all ills in her life. Resentment still simmered on both sides of the relationship about certain events in September 2006 when the plaintiff left the relationship and temporarily moved to Queensland with a female companion. 18But for the reasons, which appear later, I found the defendant often to be the more objective and reliable of the two protagonists, although even her evidence had its problems at times. To make findings about contests of fact it has usually been necessary to look to the objective materials, independent witnesses, and such parts of the evidence of both plaintiff and defendant as are inherently probable. 19The case presented two unusual personalities to the Court. The case required the Court to choose between two highly polarised views of the truth. Much of what actually happened to the plaintiff and the defendant in the course of their relationship can only be understood with their characters. To faithfully recount the narrative the description here of plaintiff and defendant is both more direct and more blunt than is be called for in many cases. 20The plaintiff is an uncommonly self-absorbed person. Without demonstrable shame she had little difficulty in speaking for hours both at the bar table and from the witness box of her own emotions, feelings and ideas, and their importance. She claimed she was a 'private' person and had difficulty speaking about these things but her conduct in Court was quite inconsistent with such a claim. Her evidence admitted little doubt that she could possibly be wrong about any of her dealings with the defendant. She could only see her relationship with the defendant from her own singular point of view. She is strong minded, determined, persistent and forceful. Her Courtroom answers were often interlaced with arguments about what was wrong with the defendant, about why the defendant's case was misguided, or about how the defendant had harmed her. 21The plaintiff showed considerable self-possession. She was across all the detail of her and the defendant's financial affairs. She presented her own case in a factually and, no doubt for her, emotionally demanding five-day hearing. Much of that presentation was quite competent, although in final submissions the plaintiff's case often descended into ungrounded and irrelevant assertion. 22But the Court could not comfortably rely upon her as a witness in part because of the unsubstantiated exaggeration inherent many of her evidentiary claims. Examples of this kind of evidence from the plaintiff appear elsewhere in these reasons. But present examples of this are her statement that "the defendant has also seized monies from my bank accounts and credit cards without my authority"; she did not establish any such conduct on the part of the defendant. Also she says throughout her affidavit and oral evidence that she repaid the loans that the defendant made to her to purchase her joint share in the jointly held property at Baker's beach in Tasmania and to purchase the investment property in the plaintiff's name in Jubilee Pocket Queensland. But she provides no objective substantiation of such alleged repayments and I do not accept her oral evidence that she made them. I find she was prepared to mislead Citibank in May 2006 when she was applying for a Citibank Airport platinum credit card. She claimed to Citibank that her gross personal income was $148,000 and that her monthly income after tax was $9,000. I find that the plaintiff was responsible for this document. She knew she did not have an income of that level in May 2006. 23Moreover she made baseless attacks in final and other submissions on the defendant's lawyers, accusing them of taking the plaintiff's documents. She did not advance evidence of any cogency whatsoever to support this most serious charge. She seemed to think that anyone, who assisted the defendant, including the defendant's lawyers, must be in a conspiracy against her. Through repeating such allegations she showed a persisting lack of objective judgment. 24But at times what the plaintiff said was obviously right. She did make a few concessions against her interest. It was necessary for the Court to pick its way through her evidence and make findings either for or against her on important pieces of evidence. This is not a case where her account is displaced by a wholly more reliable account from the defendant. The defendant's account was generally more reliable but it cannot be completely accepted either. 25The defendant's view of her relationship with the plaintiff was also distorted by similar bitterness. Her underlying distaste for the plaintiff was palpable at times during her evidence. For a long time she refused to accept what the evidence showed to be obvious: that there was a domestic relationship between the plaintiff and the defendant between October 2000 and September 2006. She only admitted this just before trial. But overall the defendant had a greater degree of objectivity on her own experience of this failed relationship; perhaps this was because of her professional training as a podiatrist. 26A complication in assessing both the defendant's credit and the plaintiff-defendant relationship was the defendant's lifestyle. The defendant was a driven individual who kept herself fit, competed in triathlons and maintained several demanding podiatry practices in Macquarie Street, Sydney and several Sydney suburbs. She had built up a portfolio of investment properties in Queensland. But in contrast to her business life, the defendant's domestic life was one of relaxed liberality. She was quite prepared to tolerate people living in her household, imposing upon her, benefiting from her generosity, and taking liberties that many others would simply not allow. She claimed in these proceedings, with justification I find, that the plaintiff had simply exploited this part of her character. 27The case generated contradictory descriptions of the defendant. The plaintiff said that the defendant was dominant, controlling and directed the plaintiff's life. But the defendant said that she tolerated the plaintiff imposing herself at the defendant's residence and really wanted her to leave much of the time but was afraid to confront her. It is true that in her professional life, in her athletic pursuits and in managing her finances, the defendant demanded high levels of self-discipline. But in dealing with other people who became her guests, I find that the defendant could be quite passive. This duality made assessing the defendant's evidence difficult. 28The plaintiffs also attacked the defendant's credit by claiming that she was psychotic. This allegation was not supported by any medical evidence the plaintiff put before the Court. But it was not without some basis. The defendant admitted that she had received benefits from Centrelink during the parties' relationship. She claimed those benefits, "on the basis of some medical evidence", and she explained to the Court, "apparently I was diagnosed as being psychotic". The medical evidence that supported the payment of the Centrelink was not revealed. All that can be said was that the defendant accepted this benefit and that she admitted being diagnosed for a period as being psychotic. The other medical bases for the Centrelink payment were not explored. A Centrelink benefit (mainly a disability support pension) was paid to the defendant until November 2008. To her credit the defendant said she was committed to repaying her debt which had reached over $162,000 by December 2009. The Court cannot engage in amateur psychiatry. Whatever may have been the medical reason for the payment of this pension at some time in the past, there was no medical evidence before the Court that showed the defendant had suffered any psychotic illness for any extended period of time. The defendant's evidence at no time in the hearing showed any obvious signs of disordered or irrational thinking or ideas. So far as a Court can say without medical assistance the defendant did not present to the Court as a person exhibiting any kind of mental illness. As they were unsupported by objective evidence, or the Court's own perceptions of the defendant's evidence the Court ignored these allegations against the defendant. 29But having seen both the plaintiff and the defendant in evidence during a five-day hearing, I generally prefer the defendant's analysis of their mutual relations. The defendant was a precise though at times hesitant witness. Her reserve was matched by the plaintiff's self-confidence. Yet there was an overall restraint in the defendant's evidence that often prevented her from excessive attacks on the plaintiff and ultimately gave her evidence a greater authority that than of the plaintiff. More often too the defendant's evidence was supported by objective material, when the plaintiff was unsupported by such material and plainly improbable.

The Earlier Course of these Proceedings 30These proceedings have had a prior partial hearing. The hearing of the evidence before me over five days, 6, 7, 8, 9 and 10 February 2012 and the filing of written submissions in the 28 days thereafter, followed by a final directions hearing on 15 March 2012, were the conclusion of a number of years of conflict. The Statement of Claim was filed in April 2008. A Defence and an Amended Statement of Cross Claim were filed in November 2009. The proceedings were first heard over five days before Smart AJ on 8, 9, 10, 11 and 12 February 2010. His Honour heard much procedural argument and made many rulings on evidence during this 2010 hearing. The only witness who gave oral evidence in this part of the proceedings, Ms Wendy Janice Roberts, the plaintiff's mother, did so on 10 February 2010. Rulings on objections to affidavits continued. The remaining two days of the proceedings before Smart AJ dealt with multiple notices to produce with a proposal to appoint an accountant, Mr Ron Flood, to analyse the corporate records of the three corporate entities controlled by one or other of the parties. Corporate financial statements for these entities did not exist for the years of the parties' relationship. None of the entities had filed tax returns during the last ten years. 31After this hearing before Smart AJ the proceedings came back before his Honour on 8 April 2010, 26 August 2010, 30 August 2010, 12 October 2010, 22 October 2010 and 17 December 2010. The plaintiff had been represented by solicitors until December 2010, after which time she appeared in person. Appearances on 17 December 2010 and 3 February 2011 were in the nature of extended directions and interlocutory hearings, which dealt with issues about the sale of properties, the production of documents, the lodging of caveats and the accounting for proceeds of sale. Many of the interlocutory issues involved the plaintiff opposing the defendant selling investment properties held either in her name or by one of her corporate vehicles. 32After this last hearing Smart AJ became ill and most unfortunately was unable to continue to hear these proceedings. From 1 July 2011 through until 8 September 2011 the proceedings were case managed by Bergin CJ in Eq during which time the Court considered issues of possible pro bono assistance to the plaintiff, mediation, production of documents by the defendants and managing defaults on existing mortgages over company property. On 8 September 2011 Bergin CJ in Eq set the matter down for three days before myself on 6, 7 and 8 February 2012. I determined that the proceedings would require more time to be concluded. A further two days, 9 and 10 February 2012, were allocated to conclude the evidence. 33Although Smart AJ had made detailed rulings on evidence it was evident from the transcript of the proceedings before his Honour that those rulings had taken many days. The parties had since filed further affidavits and the making of detailed rulings on the remaining affidavits threatened to consume much of the available hearing time of the proceedings. The parties threatened to reargue many of the rulings in light of the further evidence. So the Court approached the proceedings on the basis that all evidence tendered on both sides by affidavit would be admitted into evidence and its assessment was treated as a matter of weight. This was done in furtherance of the objectives identified under Civil Procedure Act, s 56, in facilitating the "just, quick and cheap" resolution of the real issues in dispute in these proceedings. It would simply not have been possible to hear argument upon and determine the objections to further evidence in the proceedings and complete the evidence within a time frame even of some five days. The order was necessary to allow the proceedings to be completed within a reasonable time. The order was especially important because as there had already been one five day hearing together with other scattered hearing days. 34It was necessary to formally make orders terminating the proceedings before Smart AJ and constituting a fresh trial. This was raised with the parties on the first day of the hearing. There was no contest the original trial had commenced before Smart AJ and that his Honour was "unable to continue the trial or give judgment in the proceedings by reason...incapacity": Civil Procedure Act, s 88. Thus Bergin CJ in Eq, the "senior judicial officer" within Civil Procedure Act, s 88, nominated me as another judicial officer before whom the proceedings were to be listed for trial: Civil Procedure Act, s 88(1). The proceedings had been so listed and the Court gave directions as to the evidence to be used in the fresh trial before me: Civil Procedure Act, s 89. The formal orders under Civil Procedure Act, s 89 will be made with the final orders in the proceedings. 35It was necessary for the plaintiff to offer to recall Mrs Roberts as the defendant initially did not accept directions that her evidence at the previous trial could be read. In the end though the plaintiff was permitted to tender the whole of Mrs Roberts' oral evidence before Smart AJ and the defendant did not require her for further cross-examination. The plaintiff elected to tender this evidence after argument. The Court indicated in that argument that if the defendant wished to tender only parts of Ms Roberts' evidence against the plaintiff, that the Court would allow the plaintiff to adduce such further evidence from Mrs Roberts as she was so minded in addition to the evidence given at the earlier trial. In the end, the plaintiff just tendered the transcript of the whole of Ms Robert's evidence without objection.

Simone Starr-Diamond and Talus Diamond 36Each of the plaintiff and the defendant had adopted the names in which they litigated these proceedings. The plaintiff was born in 1964 as Simone Patricia Carnicelli. The defendant was born in Sydney in 1965 as Elizabeth McDonnell. The defendant changed her name to "Talus Diamond" in late 1997, before she met the defendant. The plaintiff changed her name to "Simone Starr-Diamond" during the relationship. Events surrounding the plaintiff's change of name became one of the issues in the proceedings. Indeed this issue is a cameo of the dynamic of their relationship. 37The plaintiff changed her name by deed poll on 21 January 2001. The date of the name change was not contested and is one of the reasons why the Court concludes the relationship commenced before mid 2001, the date the defendant puts it started. The plaintiff says that before the name change the defendant said to her "now we are married I want you to take on my name". The plaintiff says she suggested replacing her second name and giving herself a double barrelled surname "Starr-Diamond" to which, according to the plaintiff, the defendant said "I like the idea of Starr-Diamond". With that general seal of approval the plaintiff says she went and arranged the name change. 38The defendant's name change narrative was quite different. The defendant says that the plaintiff changed her name by deed poll in Tasmania to "Simone Starr-Diamond" without the defendant's knowledge. The defendant says she was not consulted prior to the name change and had no involvement in it. 39The defendant's version is partly correct in my view. My findings as to what happened follow. The plaintiff did not formally ask the defendant's permission to change the plaintiff's name. She did not need to. The law did not require that. What happened was that the plaintiff had some light-hearted banter with the defendant about changing her name, and about what a changed name would look like. Then she just went ahead and made the change without any further consultation with the defendant. She did it, in my view, to publicly present herself as part of a couple with the defendant. It was a bold move which immediately asserted a degree of control over the defendant which was typical of much of the plaintiff's behaviour. Once the plaintiff's name was changed to a surname similar to that of the defendant others would more readily assume that they were a couple. The defendant never gave her permission to this course. The plaintiff imposed it on her. I do not accept that the defendant said to the plaintiff "I want you to take on my name". 40From the time the plaintiff changed her name she signed her name and initialled documents with an open five pointed star followed by the word "Diamond", or using a star in place of the "D" in Diamond, as appears throughout the court documents in these proceedings. 41Each of the plaintiff and the defendant are tertiary educated. The plaintiff has a Bachelor of Arts degree from the Australian National University with a double major in political science. She commenced but did not complete a masters degree in public administration. She has a Bachelor of Arts degree (visual communication and graphic design) and a Master of Design with distinction from the Royal Melbourne Institute of Technology. 42The plaintiff's working life involved career roles in government and the media. She has worked for the Federal Attorney General's Department, the Australian Government Retirement Benefits Offices and the CSIRO Canberra. She has held positions in the Australian media as a radio announcer and producer and worked for News Limited and Fairfax Newspapers as a layout artist and sub-editor. She has lectured and held academic and faculty positions in visual communications, advertising, graphic design and interior design. She has produced and exhibited artwork and photography, which she herself pointed out to the Court in her evidence has been "exhibited alongside Max Dupain, Oliver Cotton, Wilbur Sievers, Lord Litchfield and Linda McCartney". The defendant did not challenge the plaintiff's curriculum vitae. 43The plaintiff did not suffer the disadvantages suffered by many litigants in person. She had quite a high level of comprehension of the legal issues and of court processes. No doubt this was assisted by the fact that she had by the time of the hearing already studied three law subjects at University. Indeed the directions hearings in November 2011 were organised after the conclusion of her legal studies for 2011, so as not to interfere with preparation for her upcoming law examinations. 44The defendant has also achieved tertiary academic success in fields related to her practice of podiatry. The defendant trained as a podiatrist and has completed extensive postgraduate study in podiatry in the United States of America and the United Kingdom. She first qualified in podiatry from Sydney University in 1986 and undertook postgraduate study for three months in each year of 1987, 1988 and 1989 at Edinburgh University and the San Francisco College of Podiatrist Medicine. She was appointed Head of the Department of Podiatry at Westmead Hospital for three years, worked at a private practice at Double Bay and then purchased her own first practice at Mascot in about 1992. 45The parties agree that they first met socially in about late 1999. The defendant says that they met through a female friend, Dr Shale Preston. That some such introduction occurred at this time is undoubted. Dr Preston gave evidence in the proceedings and confirmed that she was living in the Grasmere Road, Neutral Bay house occupied by the defendant; and that she had a short close relationship with the plaintiff shortly before the plaintiff and the defendant met. But the relationship between the plaintiff and the defendant did not develop any further for a number of months. The plaintiff says, and I accept, that shortly after the conclusion of the Sydney Olympic Games, in early October 2000, the plaintiff and the defendant had more frequent contact. They had a number of common interests including a love of cats. I accept the plaintiff's evidence that a sexual relationship had commenced between them by late October 2000.

The Early Relationship 46The evidence of the plaintiff and the plaintiff's witnesses about the commencement of the relationship was compelling. The plaintiff says, and I accept, that at Halloween in the year 2000 the defendant gave her a simple gold ring, which the plaintiff described as a "wedding ring". Although there are many aspects of the plaintiff's evidence that I do not accept, much supports the conclusion that the defendant made a deep personal commitment to the plaintiff on 31 October 2000. The ring still exists. The plaintiff has it. I accept the plaintiff's evidence that both the plaintiff and the defendant treated Halloween each year as the anniversary of the commencement of their relationship. Even the defendant's principal affidavit speaks of a special ceremony between them on Halloween 2001. That was their first anniversary together. The plaintiff's case about the commencement of the relationship goes beyond this ring ceremony of commitment. She says that at some time in October or November 2000 she moved into the defendant's premises at Grasmere Avenue, Cremorne. 47There was a prominent contest between the parties about when the plaintiff moved her belongings from the Ivy Street, Chippendale property she shared with her father and joined her household with the defendant. The plaintiff said she went to Grasmere Road, Cremorne in October 2000. The defendant said this did not happen until the middle of 2001, when she was living in Nook Avenue, Neutral Bay. The plaintiff's case was much assisted on this issue by the evidence of her sister, Mrs Vicki Maroulis. Mrs Maroulis was an excellent witness whose account I entirely accept. Mrs Maroulis is a teacher and came across to the Court as a person of precise and exact habits who would not overstate the facts. She gave as accurate a history of the beginning of the relationship as her memory and experience would allow. 48Mrs Maroulis explained, and I accept, that shortly after she and her husband were married, which was in June 2000, the plaintiff moved in with the defendant. Mrs Maroulis' best recollection was that the plaintiff had a disagreement with their father and moved out of the Chippendale house she shared with him a matter of weeks or a couple of months after Mrs Maroulis was married. Mrs Maroulis was sure that the plaintiff's move was before Christmas that year. This coincides with the period that the plaintiff says that she was given the ring and made the move. I find that the relationship commenced in October 2000.

The Relationship Develops 49The plaintiff's account of the early course of the relationship is reasonably reliable but not completely so. The plaintiff has a fairly exact recollection of the early times in the relationship, especially in the years 2000, 2001 and 2002. The occasions that she and the defendant went to restaurants, went on picnics, visited friends, went to the theatre, visited family members are all recounted in some details in the plaintiff's affidavit. The plaintiff's acceptance into the defendant's life was very important to the plaintiff, probably more so, as it perhaps seems in retrospect, than it was to the defendant. The defendant's evidence does not include similar levels of personal detail about the early part of the relationship. This in my view is because the defendant was reluctant to concede this level of personal intimacy had occurred with the plaintiff, a person for whom, by the time of the hearing, she had the most abject distaste. So strong was this distaste that the defendant could barely bring herself to look at the plaintiff whilst she was in the courtroom, and in particular when the plaintiff was cross-examining her. 50But some of what the plaintiff recounts during this period goes too far. The defendant's perception some years later was that the plaintiff, "inveigled" herself to the defendant's life and "insinuated" herself into the defendant's professional and personal affairs. This perception was accurate. In my view, the plaintiff did actively seek to permeate herself through every part of the defendant's life. The defendant did not always want that to happen. Although the defendant was generally willing to go along with the plaintiff's ideas about joint entertainment and mutual social relationships, I accept that the defendant put up some firm boundaries to this process. 51One of these was the area of children. The plaintiff says that she wanted to have children with the defendant and that a sperm donor, a mutual male friend was organised for this purpose. But none of this really rings true. This seems to have been something imagined by the plaintiff. The idea of having children evoked a strong reaction from the defendant that shows there was some limitations to her compliant acceptance of the plaintiff's plans for their joint lives. The defendant says, and I accept, that her response to the plaintiff's idea in 2003 that they should have children was wholly negative. 52I accept that the proposed father was the defendant's then boyfriend. The defendant claims, and I accept, that her relationship with the plaintiff, at least on her side, was non-exclusive and that she had intimate relationships with a number of other men and women throughout her relationship with the plaintiff. The plaintiff said that the relationship was exclusive on her side and claims that it was exclusive on the defendant's side. But I do not accept that this is a correct account of the defendant's approach to the relationship. The defendant named a number of her other boyfriends and girlfriends during the relationship. It is not necessary to republish any of their names in this judgment. The plaintiff criticised the defendant for not calling these alleged other former lovers to prove that the defendant really did have a non-exclusive relationship with the plaintiff. 53Even though a domestic relationship is admitted, the fact that one or other party did not treat the domestic relationship as an exclusive one, can still be a relevant factor to be taken into account, for example, in relation to issues such as the welfare contributions that each party made to the other: Property (Relationships) Act s 20(1)(b). But there are limits as to the extent to which such evidence needs to be examined. Whilst it is true that the defendant did not corroborate her account by adducing evidence from these potential witnesses, Civil Procedure Act 2005, s 56 which commands that the Court promote the "just, quick and cheap" determination of the proceedings was at least one good reason why I was not prepared to draw an inference against the defendant for not adducing such evidence. In any event on this issue the defendant herself was quite credible. I accept her evidence that "I always had friendships and sexual relations with other friends and partners, male and female, during the time that we knew each other and I did not ever exclusively live with the plaintiff". 54But the defendant also attempted to play down the public aspects of her relationship with the plaintiff. The defendant denied representing to third parties that she and the plaintiff were introduced as "partners", "girlfriends" or "lovers". The defendant says that she would often say to friends and family "Simone and I are adopted sisters". On some occasions that may have been what was said, especially to the defendant's family. But on this issue I accept the plaintiff's evidence that quite a wide circle of friends were well aware that the plaintiff and the defendant shared an intimate personal relationship. 55There were a number of indications of considerable intimacy and trust between the plaintiff and the defendant during their relationship together, through which each expressed a desire to benefit the other. The defendant did make the plaintiff sole beneficiary of her life insurance policy and the plaintiff reciprocated, making the defendant a beneficiary of her life insurance policy. The defendant dismissed this in her evidence, explaining that she only took this step because she would not be alive when the policy was called on and it did not matter to her who received the money. But the defendant's choosing the plaintiff as beneficiary, rather than another member of her own family or another friend, indicates the special place the plaintiff held in the defendant's life at the time.

A Turning Point - 2002 56The year 2002 became a relationship turning point. In that year the defendant started to find aspects of her relationship with the plaintiff quite oppressive. I find that the defendant's version of what happened between the couple from this time on is correct: the plaintiff took an overpowering and controlling interest in all aspects of the defendant's life so that the plaintiff, as the defendant said, "became difficult to deal with and started to attempt to dominate me". I find that the defendant's evidence is correct that the plaintiff started to accompany her or follow her to places often when she was uninvited. I find that the plaintiff began to resent the defendant might have any life other than one with her. I accept the defendant's evidence that this became more and more persistent and unpleasant for her. But I also do not doubt that the plaintiff had little sense that the defendant found her conduct oppressive. But I accept that she did, and for good reason, as the evidence shows. This continuing conduct of the plaintiff had adverse personal and financial consequences for the defendant: the personal consequence was increasing stress in the defendant's life and the financial consequence was the defendant's podiatry practices went into decline. These consequences in turn explain why their relationship began to fracture badly in 2005 and 2006. The defendant says, and I accept, that there were 34 police incidents between them, including applications for apprehended violence orders, over the years they were together. 57The plaintiff began to absorb the defendant's life in two main areas beyond the purely domestic; in the defendant's recreational and professional life. The defendant is a tri-athlete. She needed to train daily and she swam most days over a kilometre. I find that the plaintiff would often follow her to the pool and sit and watch and then try and interrupt her swimming by speaking to her. The defendant said to the plaintiff a number of times "please leave me alone, all I am doing is some exercise. It is a time for myself". I accept the defendant's evidence that the plaintiff's explanation for this was "I have been traumatised by my earlier relationships, I don't want you to ever leave me. I want to spend the rest of my life with you". The defendant assessed the plaintiff as having "an obsessive, compulsive personality and she tried to take over my life". This was clearly not a qualified medical assessment. But I accept that it was indeed evidence of the concern of the plaintiff from 2002 that she be as much a part the defendant's daily life as the defendant would allow. By 2002 this was aggravating the defendant and diminished much of the support that the defendant might otherwise have gained from their relationship. 58But the plaintiff also inserted herself into the defendant's professional life as a podiatrist. This generated the conflict in the proceedings about the parties' respective financial and non-financial contribution to the acquisition, conservation and improvement of their property and their financial resources. The year 2002 also brought this issue into prominence. 59The plaintiff ceased to work with Fairfax Community News in late 2001. She was unwilling to go back into sub-editing roles. The plaintiff says, and I accept, that she had encountered harassment and poor behaviour in some of her workplaces and in the media and was not anxious to return there. I accept that she decided, as she explains, that working within the defendant's podiatry practices would be more congenial for her. But her decision to work within these practices was not the result of the defendant's request for her there. She did not have expertise in either podiatry or small business financial management. I find that she assumed a role in the practices, more or less to suit herself. She convinced herself she was helping the defendant at work. Regrettably, as the analysis below establishes, she caused considerable financial damage to these practices. 60I accept the defendant's account of how the plaintiff came to work for her. The defendant says that in late 2001 the plaintiff said to her, "Talus please can I work for you now?" to which the defendant responded, "There is not really much work you can do as I already have a secretary who answers the phone and makes appointments". Despite that mild rebuff, the plaintiff presented herself at the defendant's Macquarie Street surgery and found a role for herself answering the telephones. This forced the then secretary-receptionist, Ms Rachael Lee to give up this task. Fairly shortly afterwards the plaintiff took over running the whole surgery. 61From that time on the plaintiff's presence depleted the commercial value of the defendant's practices. Subjectively the plaintiff thought that she was helping the defendant. She genuinely believed she was. All her evidence came across that way. But looked at objectively, the plaintiff's personality and behaviour slowly degraded the working environment of these practices to the point that their staff left and their patients did not return. 62This commenced with the staff. The plaintiff, in my view, exhibits an unconstrained and impulsive desire to control people and to monopolise conversations around her. She showed this in Court: consistently pursuing her own line of thinking at the expense of the ideas of others. I infer her out-of-Court past conduct was like her in-Court present conduct; which conduct was likely to make the work environment for the defendant's podiatry practices unbearable for others. I find that the staff of the practices progressively left because of the plaintiff's behaviour. The first of these was Ms Rachael Lee, who eventually said to the defendant, "I can no longer work for you with her here. I have to resign". And she did. 63The pattern continued. The defendant says, and I accept as correct, that the plaintiff fell out with many work colleagues in these practices. She fell out with the specialist podiatry practitioners and with the proprietors of the Neutral Bay, Surry Hills and the Mascot surgeries. The business of all these surgeries deteriorated from 2002. The defendant says, and I accept, that she had to close the Neutral Bay, Mascot and Surry Hills surgeries without realising their proper value because of these problems. 64The Court's analysis below of the financial affairs of the defendant's practices substantiates the conclusion that the plaintiff's conduct caused the deterioration in their commercial value. The mechanism by which this occurred is not difficult to see. The plaintiff's personality progressively forced the administrative and professional staff out of the practices, which could not therefore present the kind of continuity and efficiency to patients that is required for such small businesses to thrive. The revenue and margins in the practices all declined from 2002 and I accept that the defendant had to progressively close them as a result. The loss of this practice revenue in turn put financial strain on several property developments that mainly the defendant was conducting in Queensland. 65The introduction of the plaintiff into these practices provides the most reasonable hypothesis for the departure of their staff and their closure. Although the defendant was herself an unusual person, my assessment of her in the witness box was that she was fundamentally courteous, a sound-thinking professional in her field of podiatry and a person exhibiting genuine compassion in the best interests of her patients. She did not appear to the Court to have any character traits, which were obviously an impediment to organising and servicing the prosperous and efficient practices as a medical professional, which she had successfully built up until 2002. There is nothing, in my view, in the defendant's own behaviour that naturally explains from 2002 the departure of key staff, the deterioration of relationships with the proprietors of the branch surgeries and the loss of clients from these practices. 66But the plaintiff had an alternative theory. She suggested that the progressive failure of the practices was due to investigations by the Department of Veterans' Affairs into alleged fraud within them. The plaintiff says the practices never recovered from this shock. But there are many reasons in my view why this theory is not correct. First, the Department of Veterans' Affairs (DVA) investigation only affected one of these practices and all of the practices declined financially after the plaintiff became involved with them. Second, there was not an immediate decline in practice income but the practices closed over time, which is not readily consistent with the commercial shock from one event or investigation. Third, the defendant appeared to the Court to have the personal resilience and organisational skills to deal with the DVA investigation herself and to contain its effects and not be overcome by it. Fourth, it has not been established in the evidence that the DVA investigation proved any wrongdoing on the part of the defendant. 67But I find that some of what happened to the practices resulted from the defendant being distracted. She was distracted by the Queensland property developments and distracted by managing the plaintiff at the practices. But these distractions can still be sheeted home to the plaintiff's behaviour. The plaintiff had caused problems in both areas increasing stress for the defendant. 68The plaintiff has a second alternative theory as to why the defendant's net worth declined after 2002. This other theory is that the defendant and her lawyers have been involved in a deliberate policy of reducing her assets to the point that nothing will be available to the plaintiff. This theory is put a number of different ways. A number of different people are said to be responsible for depletion of the defendant's assets after 2002. The plaintiff says that the defendant has diverted practice income, has failed to account for money from various property sales and that Mr Hodges, the solicitor for the defendant has invoiced excessively large amounts in respect of those conveyancing transactions. The highly generalised contention is that the defendant and her legal representatives have benefited from the defendant's assets and failed properly to bring them to account for the purposes of these proceedings. 69Several things must be said about this second alternative theory at a general level. First, there is no evidence whatsoever that any of the defendant's legal representatives have been engaged in any misconduct with the defendant in diverting funds; nor is there any evidence of overcharging by Mr Hodges in conveyancing transactions for the defendant. Secondly, although financial accounts and tax returns have not been prepared for the entities for which the plaintiff has conducted her podiatry practices nor has she put in tax returns herself, the pattern of conduct exhibited here is not consistent with the defendant hiding the diversion of assets by failing to produce adequate documents. Rather, in my view, the chaotic disorder in the defendant's financial affairs seems to be quite consistent with the general breakdown in the defendant's organisational skills from 2002 as a result of endemic conflict with the plaintiff. Thirdly, to the extent that the financial information is available about the mutual affairs of the parties, it does not confirm diversion of assets or deliberate failure to account and is otherwise consistent with a decline in the revenue of the podiatry practices in turn leading to difficulties in sustaining other highly geared investment assets. Fourthly, the plaintiff's contentions that the defendant has been extravagant with her assets is not made out.

The Relationship Ends 70The plaintiff says the relationship ended on 13 July 2007. The defendant says it ended in September 2006. There is much to be said for the defendant's version of the ending of the relationship. I accept the defendant's evidence that a sexual relationship between the plaintiff and the defendant ended some time in about December 2004. Yet the parties were still living together in what I find was an atmosphere of declining affection. 71The plaintiff's decision in September 2006 to travel to Queensland to meet up with Ms Geraldine Maas at the Jupiters Casino tore up what remained of her relationship with the defendant. The plaintiff and the defendant never moved back together in the same household after the plaintiff set out north on her quest for Ms Maas. There was certainly regular telephone contact between the two during the period September 2006 to July 2007 but the defendant never took the plaintiff back into her household. The defendant explains that telephone contact as merely her responding to calls the plaintiff initiated or showing compassion for the plaintiff's vulnerable state after things had soured with Ms Maas. Frequent though those calls were in this period, I accept the defendant's explanation as to why she made them. She was not trying to re-establish a relationship with the plaintiff. 72But the event to be explained on the defendant's version was why in April 2007 the defendant funded the purchase of a property in Ambleside, Tasmania for herself and the defendant as joint tenants. Such an act seems on the surface to be inconsistent with their relationship ending in September 2006. Moreover there is evidence from Mrs Vicki Maroulis that the defendant said that she still clearly had some affection for the plaintiff in this final period. The defendant explained the purchase of the Ambleside property on the basis that it was her way of ensuring that the plaintiff kept away from Sydney and out of the defendant's life. I accept that this was her motivation for funding this purchase. 73The precise end of this relationship is clear when the applicable law is considered. 74Breakdown of a De Facto Relationship. The principles that govern whether a de facto relationship continues to exist may be shortly stated. With these principles in mind the Court can analyse the evidence as to the ending of the plaintiff's and defendant's relationship. 75The authorities explain the effect that a separation has on the inference of the existence of a de facto relationship after the separation. The mere decision not to live together with the other party may in some cases allow the Court to infer the end of the relationship. As Justice Mahoney held in Hibberson v George (1989) 12 Fam LR 725 at 739-740 (with whom Hope and McHugh JJ agreed) a case dealing with an earlier form of the Property (Relationships) Act: "The relationship of marriage, being based in law, continues notwithstanding that all of the things for which it was created have ceased. Parties will live in the relationship of marriage notwithstanding that they are separated, without children, and without the exchange of the incidents which the relationship normally involves. The essence of the present relationship lies, not in law, but in a de facto situation. I do not mean by this that cohabitation is essential to its continuance: holidays and the like show this. But where one party determines not to "live together" with the other and in that sense keeps apart, the relationship ceases, even though it be merely, as it was suggested in the present case, to enable the one party or the other to decide whether it should continue." 76In S v B (No. 2) [2005] 1 Qd R 537, Dutney J (with whom McPherson and William JJA agreed) applied the principles stated in Hibberson v George and his Honour said (at [48]): "A de facto relationship ends when one party decides he or she no longer wishes to live in the required degree of mutuality with the other but to live apart. It does not seem to me that it is necessary to communicate this intention to the other party provided that the other party that is desirous of ending the relationship acts on his or her decision. I do not think it is necessary that the other party agree with or accept the decision. Once the parties cease to jointly wish to reside together in a genuine domestic relationship, a situation usually ascertained by looking objectively at the whole circumstances of the relationship, the relationship ceases. The relationship ceases even though one of the parties is still anxious to try to save it." 77His Honour continued (at [49]): "there is a difference between a marriage and a de facto relationship" and he further concluded (applying Pavey v Pavey (1976) 10 ALR 259) that: "A party asserting the continuing relationship must prove the positive aspects of the relationship rather than the party asserting separation being required to prove negatives": S v B (No. 2) [2005] 1 Qd R 537 (at [50]). 78But, as the New South Wales Court of Appeal decided in Gazzard v Winders (1998) 23 Fam LR 716 short separations may not end a relationship. In that case Beazley JA in contrast to Powell JA and with the agreement of Stein JA, found that it was not in the spirit of the De Facto Relationships Act 1984, as the legislation was then known, or reality, to find that a short interruption "which, in a long relationship may be no more than a hiccup, would have completely brought the relationship to an end" (at [20]). 79The effect of a period of separation on a de facto relationship may be influenced by the presence of a third person during the separation period. In Thompson v Badger (1990) DFC 95-078 several periods of separation were not seen as fatal to the inference of a de facto relationship. However an element in determining that such separation periods did not signify that the relationship was at an end was not only that the parties eventually reconciled after their periods of separation, but that neither party had another sexual partner during the times of separation. 80The potential of a third person to affect the de facto status of a couple during their period of separation was evident in Lipman v Lipman (1989) 13 Fam LR 1. There Powell J found that a separation of 6 months in a long de facto relationship ended the relationship, when one party had required another to leave the shared residence, and had asked another woman to take the place of his partner and live with him. 81Thus the Court must examine whether the plaintiff's and the defendant's de facto relationship ceased to exist from September 2006. The circumstances that govern the Court's inferring the existence of such a relationship from that time onwards are the matters set out in s 4(2) of the Property (Relationships) Act 1984 that govern the existence of the relationship. Section 4 of the Property (Relationships) Act provides as follows:- "De facto relationships (1) For the purposes of this Act, a de facto relationship is a relationship between two adult persons: (a) who live together as a couple, and (b) who are not married to one another or related by family. (2) In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as may be relevant in a particular case: (a) the duration of the relationship, (b) the nature and extent of common residence, (c) whether or not a sexual relationship exists, (d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties, (e) the ownership, use and acquisition of property, (f) the degree of mutual commitment to a shared life, (g) the care and support of children, (h) the performance of household duties, (i) the reputation and public aspects of the relationship. (3) No finding in respect of any of the matters mentioned in subsection (2) (a)-(i), or in respect of any combination of them, is to be regarded as necessary for the existence of a de facto relationship, and a court determining whether such a relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case. (4) Except as provided by section 6, a reference in this Act to a party to a de facto relationship includes a reference to a person who, whether before or after the commencement of this subsection, was a party to such a relationship." 82Most of these statutory circumstances are relevant to determining whether there was a de facto relationship between the plaintiff and the defendant after September 2006. The significance of each of the s 4(2) matters is discussed below. 83Findings - September 2006 to July 2007. The evidence of Mrs Maroulis also threw light upon the ending of the parties' relationship, as it had on the beginning. Her evidence, which I accept, seems to support the conclusion that the relationship still subsisted after the incident with Ms Maas. Her evidence about this period was to the effect that despite the incidents with Gabrielle Maas, Talus Diamond indicated to Mrs Maroulis that she regarded there as still being a relationship with Ms Starr-Diamond. 84The defendant explained to Mrs Maroulis that she "cared about Simone, that she wanted the best for them both". Mrs Maroulis also, in my view, gave an accurate account of what the defendant said about the purchase of the property in Tasmania. She described the defendant as saying, in what must have been late 2006 or early 2007, "there were times when she [the defendant] talked about moving to the country with Simone or the plan to move to Tasmania together and have a different kind of life from the one they had in Sydney together". Mrs Maroulis' evidence was all the more credible because of her reticence in offering opinions about the relationship between the plaintiff and the defendant. She confessed she did not know about their personal lives and gave the impression that it was not something she wished to know more about than circumstances forced upon her. She made a simple observation about the limits of her capacity to observe her sister's relationship with the defendant: "it was something that was beyond my experience". Mrs Maroulis certainly thought that the plaintiff "believed that once the Maas problems were sorted out that things would be fine again". According to Mrs Maroulis, not only was the defendant keen to continue the relationship but so was the plaintiff. Mrs Maroulis gave a faithful account of what the defendant said to her after September 2006. But the defendant was not as committed as she sounded to Mrs Maroulis. 85Despite Mrs Maroulis' reliability as a witness, I find that the defendant was prepared to say to Mrs Maroulis that the purchase was an attempt to escape the competitive pressures of life in Sydney and the disturbing intrusion of Gabrielle Maas into their lives. But, in my view, that was only what she said to the plaintiff's sister. In contrast, the defendant's true underlying attitude to this purchase as late as April 2007 was that she wanted the plaintiff as far away from her as possible, even if to secure that she had to fund the purchase of her own and the plaintiff's half share in the Ambleside property. She softened this attitude when speaking to Mrs Maroulis, as perhaps might be expected with a close member of the plaintiff's family. 86The relationship was over by April 2007. The defendant did not invite the plaintiff back to live with her in Sydney, as she might have if she had a continuing commitment to a domestic relationship with the plaintiff after September 2006. Nor did she ever live with the plaintiff at the Ambleside property. I do not accept that the defendant demonstrated any commitment to a future life with the plaintiff after September 2006. Apart from the somewhat misleading impression the defendant gave Mrs Maroulis at this time, the defendant did not represent herself to others as part of a couple with the plaintiff after September 2006. In my view the relationship did not exist after September 2006. 87After that time the defendant continued to reside in Sydney and the plaintiff in Tasmania. The defendant continued to practice as a podiatrist. But she has spent much of her time since 2009 dealing with these proceedings and selling her investment properties and managing her indebtedness. On 14 September 2010 the defendant had a fall and suffered a traumatic brain injury. Since that time her practice and her income have both continued to decline. The defendant's registration as a podiatrist was cancelled on 29 July 2011 because of the persisting effects of her injuries consequent upon those injuries. 88She appeared before the Podiatry Council of NSW during the hearing, on 7 February 2012, in an attempt to reinstate her registration. But there is no clear evidence from which I could infer if and when she might return to practice. 89I accept the defendant's evidence that she does not currently receive any income other than the rental income from the properties she continues to control. Although she says, and I accept, this is not enough to cover her mounting liabilities. 90The findings in this chronological account of the parties' relationship provide the framework to analyse the various contests about their mutual financial affairs and their respective Property (Relationships) Act contributions.

Stage One - The Parties' Divisible Pool of Property

Real Estate and Secured Liabilities 91Omitting the full addresses, the parties owned the following properties at the date of the hearing:- (1)Suite 207 Macquarie Street, Sydney, owned by the defendant (2)Lot 13, Jubilee Pocket, Queensland, owned by the defendant (3)Lot 14, Jubilee Pocket Queensland, owned by Kitty Winks Pty Ltd (4)A property in Bakers Beach, Tasmania, owned by plaintiff and defendant in equal shares as tenants in common (5)A property in Ambleside, Tasmania, owned by plaintiff and defendant in equal shares as tenants in common (6)Suites 201 Macquarie Street, Sydney, owned by Dogstar Diamond Pty Ltd 92Despite their many other differences, the parties were at least able to advance competing market values of each of these properties. But they were not able to agree on values. The Court has taken the midway point or average between the parties competing values and treated that as the value of these properties to avoid further fruitless expense on issues of value. Where the parties differed in value they were only about $10,000 apart. The table below shows the external liabilities over these six properties at the time of hearing and their values net of external liabilities. As between the parties the situation was more complex but the relevant contest about each property is dealt with later. Property Owner Value Mortgage Liability Net Value (1) Suite 207 Macquarie St Defendant $110,000 Nil $110,000 (2) Lot 13, Defendant $320,000 $232,600 $87,400 Jubilee Pocket, Queensland (3) Lot 14, Jubilee Pocket, Kitty Winks Pty Ltd $320,000 $308,723.39 as at 30 Sept 2011 Negative Queensland (4) A property in Bakers Beach, Tasmania Plaintiff and defendant in equal shares as tenants in common $130,000 Nil $130,000 (5) The Ambleside, Tasmania property Plaintiff and defendant in equal shares as tenants in common $244,500 Nil but purchase monies raised by way of mortgage remaining on Lot 13 Jubilee Pocket Contested (6) Suite 201, Macquarie Street, Dogstar Diamond Pty Ltd $310,000 $150,000 $150,000 Sydney Strata levy arrears, Loan to Kitty Winks P/L

93The parties' present financial position is parlous. As the table above shows, the net value of the real estate that the parties now share is no more than $370,000. The defendant's financial position is very different from the approximately $1.3 million in net assets she brought to the relationship. 94A combination of high levels of debt, legal fees associated with the litigation and the decline in revenue from the defendant's practices meant that the property of the parties was significantly diminished by the time of the trial. Indeed the pattern of events during the hearings before Smart AJ and right up until late 2011 when I commenced case management of the proceedings, was the plaintiff was attempting to place restraints on the defendant's capacity to sell properties and deal with them. But by December 2011 this had left the defendant in a position where she had insufficient funds to pay legal fees and her ordinary living expenses. Orders were made to permit, for the first time, caveats to be placed on the Ambleside property.

Unsecured Liabilities of the Parties and their Companies 95But the parties' current financial position is even worse when unsecured liabilities are taken into account. Mr Ron Flood, an accountant, was engaged to produce financial statements for the three entities, Kitty Winks, Dogstar Diamond and Sydney Foot and Ankle Clinic Pty Limited ("SFAC"). He could not complete his work, as his professional fees were unpaid. He is now owed $17,676.43. Both the plaintiff and the defendant have very substantial debts to Centrelink; the defendant owes it $162,119.22 as at 11 September 2009; the plaintiff owes $98,637.15 as at 27 July 2009. The defendant has the following other substantial liabilities: a HECS debt of $16,234; a debt to the ANZ Bank on a credit card of $43,546.11; outstanding levies on Suite 207 of $5,160; rates due to the local Council for Lot 13, Jubilee Pocket of $2,503.51; and finally, she has existing debts to her legal representatives in these proceedings of $180,000. This makes a combined list of unsecured liabilities of just over $525,000, for which the plaintiff is solely liable for just under $100,000. 96None of Dogstar Diamond, Kitty Winks and SFAC have produced financial accounts or lodged tax returns for the last ten years. They may have tax liabilities to the Australian Taxation Office ("ATO"). There will certainly be further liabilities associated with the lodgement of late returns, both to the ATO and to the Australian Securities and Investments Commission ("ASIC"). Dogstar Diamond is being sued for $10,538.45 for overdue strata levies in respect of Suite 201 and was served on 21 November 2011 with a Real Property Act, s 57(2)(b) notice under the Eclipse mortgage secured over that property, which is now in default. 97I accept that the defendant's income is now negligible. She is not practising as a podiatrist. It is difficult to see how the defendant's mortgage and other unsecured debts and liabilities will be satisfied without her making some future arrangements with her creditors.

Other Assets of the Parties 98Both the plaintiff and the defendant (on her cross-claim) have claims against one another in respect of chattels alleged not to have been returned by one to the other at the end of their relationship. Findings about these claims on both sides is made below. The Court's analysis leads to the conclusion, for which the defendant contends: that both the plaintiff's and the defendant's claims for these particular items should be dismissed. Whatever the plaintiff's claims are, they do not exceed the defendant's cross-claim in respect of other chattels.

The Plaintiff's Chattel Claims 99The plaintiff's seeks the return of various artworks and her design portfolio. The defendant says she has returned all property belonging to the plaintiff that was ever in her possession, including these artworks and the design portfolio. The defendant says, and I accept, that she arranged for a removalist to take several boxes of goods from her place in Sydney, to the Ambleside property in Tasmania. Moreover she says, and I accept, some other incidental belongings were later delivered to the plaintiff's then solicitor, Mr Geoffrey Choy, of Balgowlah. The defendant's case is, and I accept, that she has no other property belonging to the plaintiff. 100I prefer the defendant's version of what happened to the plaintiff's chattels. One thing came through the defendant's evidence with great clarity: that the defendant wanted in April 2007, as she herself said, to get the plaintiff "out of her life". This is exactly what she wanted. It is consistent with this that she would have returned the chattels as she claims she did. I accept the defendant's account of travelling from Tasmania to ensure that the plaintiff's cats were returned to her. I accept that the defendant went to the trouble of taking the plaintiff's 13 cats from Sydney to Tasmania (7 by car, and 6 by plane) for which the defendant paid all veterinary vaccination and transport expenses. The defendant's care in doing this supports the inference that the defendant arranged other similar deliveries of chattels. Moreover, I am not persuaded that any of the other items that the plaintiff now alleges have not been returned to her had any demonstrable value. 101But the plaintiff's chattel claims reveal serious problems with her credibility and her judgment. This area of her evidence was another reason why the Court could not accept her as a witness. Her claim was that the defendant had retained her personal clothing and other items of the plaintiff's. But this was hardly consistent with the plaintiff's own previous allegations against others and her own evidence. The plaintiff herself admitted that the defendant moved her (the plaintiff's) belongings to Tasmania. But the plaintiff has also inconsistently claimed to Queensland police and the Local Court that Gabrielle Maas and her mother had stolen all the plaintiff's belongings and assets in September 2006.

The Defendant's Chattel Claims 102The defendant says, and I accept, that she left a number of motor vehicles in the plaintiff's possession: a Volvo 740, 1984 model, valued at $9,000; a Saab 900, 1985 model, valued at $4,000; and, a Volvo 264, 1985 model valued at $4,000. I also accept the defendant's evidence that the plaintiff has not paid the defendant for her retention of any of these vehicles. I also accept the defendant's evidence that she now drives a 1995 model Volvo station wagon valued at $5,000. The Court has not granted specific relief in the defendant's favour in respect of the $17,000 value of these three motor vehicles. But the fact that the plaintiff has retained them has been taken into account in the Court's overall assessment of the appropriate relief in the proceedings. The receipt of these three motor vehicles is another benefit the plaintiff obtained from her relationship with the defendant, which in my view, is another reason why the plaintiff should not be granted any relief under Property Relationships Act, s 20 for an adjustment of assets in her favour. 103Apart from these dealings with chattels, a number of loan transactions between the parties are dealt with elsewhere in these reasons. In my view, specific orders should be made in respect of these loans.

The Relief Claimed 104The plaintiff's Statement of Claim filed on 22 April 2008 sought a variety of relief. In directions hearings held before the hearing of these proceedings the plaintiff foreshadowed that she may amend the relief she claimed. But a formal application to amend the Statement of Claim was never pressed. Although in light of the findings made in those reasons any form of amended relief had little prospect of success. 105The defendant relies on a further Amended Defence filed on 26 November 2009 and an Amended Statement of Cross-Claim filed on the same date. Now that the course of the relationship and the parties' assets have been described, the parties' claims and cross-claims for relief are more comprehensible. 106The plaintiff in summary in her Statement of Claim sought the following:- (a)the return of certain artworks and a design portfolio; (b)the transfer to her of shares in Dogstar Diamond and the payment to her of $215,000; (c)the transfer to her of the two Tasmanian properties, the one in Ambleside and the one at Bakers Beach; (d)the sale of (then) five properties in Queensland and the division of net proceeds as to 60 per cent to the plaintiff and 40 per cent to the defendant; (e)the sale of properties owned by Kitty Winks, at Westmead and Lot 15 Phoenix Court, Queensland and the division of net proceeds as to 65 per cent to the plaintiff and as to 45 per cent (presumably 35 per cent) to the defendant; and (f)other ancillary relief. 107The relief the defendant/cross-claimant sought was as follows:- (1)repayment of loan moneys paid by the defendant to the plaintiff; (2)orders for the sale of the Ambleside and Bakers Beach property and an equal division of the proceeds of that sale after the defendant/cross-claimant is reimbursed $400 per week from 17 April 2007 to date with an equal division after that of the proceeds of sale; (3)orders that the plaintiff repay the defendant sums of $40,000 and $70,000 in respect of loans made by the defendant to the plaintiff for the purchase of a property in the sole name of the plaintiff, Lot 38 Jubilee Pocket and in respect of a loan secured by caveat on that property; (4)orders for the sale of the property in the name of the jointly owned company Dogstar Diamond, namely Suite 201 Macquarie Street, Sydney and after discharge of loans and mortgages and the winding up of that company, an equal distribution of the net proceeds of sale; (5)orders for the return of personal items and three motor vehicles. 108The findings already made in this section deal with the claims in respect of chattels, the plaintiff's claim for artworks and a design portfolio and the defendant's claim for return of motor vehicles and other personal items. Both those claims will be dismissed for the reasons stated. These reasons now deal with the balance of the claims made between the parties.

Stage Two - The Parties' Financial, Non Financial and Welfare Contributions 109This section analyses the parties' Property (Relationships) Act financial contributions (s 20(1)(a)), non-financial contributions (s 20(1)(a)), and welfare contributions (s 20(1)(b)). Starting with the law to be applied, this section deals with the parties' many contests about their respective contributions in each of these three categories.

The Approach to Assessing the Parties' Respective Contributions 110The Court is not required in proceedings under Property (Relationships) Act, s 20 to undertake a reductionist process, examining every alleged contribution with a view to putting a money value on each in order to reach an accounting balance, which balance is then to be eliminated by the requisite financial adjustment in the s 20 order. Rather the Court is required to make a holistic value judgment in the exercise of a discretion of a very general kind. Mathematical calculations, however, can be of some use in guiding and testing conclusions about what is just and equitable, and also in promoting transparency and consistency in decision making: Kardos v Sarbutt (2006) 34 Fam LR 550; [2006] NSWCA 11 at [36] and [49] and Howlett v Neilson (2005) 33 Fam LR 402; [2005] NSWCA 149. 111The parties brought substantially different assets to this relationship. It was arguable whether, what some have called the "erosion principle" might apply here to the Courts' assessment of the parties' relative contributions. This is not a principle of law but really a short hand description used in some of the cases of one approach to the evaluation of contributions, which recognises that initial contributions do not carry forward with full weight, but diminish in significance by reason of the other subsequent contributions made by both parties during the relationship: cf Sharpless v McKibbin [2007] NSWSC 1498 at [78] per Brereton J. But looked at in accordance with established authority, the real question is not to be seen as one of "erosion", but rather, of what weight is to be attached to the parties' initial contributions, in the context of all their contributions. The correct approach to assessing the parties' relative contributions does not involve casting any particular onus on a party to prove that an initial contribution "eroded" over time - except to the extent that a party contending that he or she has made a contribution bears the onus of proving that contribution: Sharpless v McKibbin [2007] NSWSC 1498; Kardos v Sarbutt (2006) 34 Fam LR 550; [2006] NSWCA 11 at [66]-[67]. 112Under s 20, the sole consideration of the Court in adjusting the interests of the parties in their property is the justice and equity of the case, having regard to the contributions that fall into the category of those described in ss 20 (1)(a) & (b). A problem with the so called "erosion principle" is that the enquiry commences with a determination as to whether an initial contribution by one party has been made and this is followed by consideration as to whether that contribution was eroded by later contributions of the other party. This appears to throw an onus on the other party to prove that the initial contribution has been eroded, an approach which is contrary to s 20: Bilous v Mudaliar (2006) 65 NSWLR 615; [2006] NSWCA 38 at [55] per Ipp JA.

Financial Contributions - Property (Relationships) Act, s 20(1)(a) 113The parties had fewer disputes about what assets each of them brought into the relationship than they had about how assets were acquired and conserved during their relationship.

Assets Brought to the Relationship 114The Plaintiff's Assets. The evidence clearly showed that the defendant brought substantially more assets to the relationship than did the plaintiff. The plaintiff's own evidence was that at the commencement of the relationship she had household items, clothing and artwork worth $60,000 and superannuation entitlements worth $7,000. Under cross-examination she sought to add clothing and other items to this total of $67,000, contending that she had business suits and other clothing worth $20,000. I do not accept the plaintiff's evidence about this. I assess that the assets actually brought to the relationship were no more than she included in her affidavit of 17 August 2008. Under cross-examination the plaintiff tended to blame her previous lawyers for not including more evidence in that affidavit that was consistent with her current evidence. She accused them of preventing her from writing as complete an affidavit in her own interests as she wished. I do not accept that explanation. In October 2000 the plaintiff brought value of $67,000 to the relationship. 115The Defendant's Investments. Financially-speaking the defendant brought much to the relationship. When the relationship commenced the defendant or her then company, SFAC owned Suite 508 in Macquarie Street Sydney, Suite 207 in Macquarie Street Sydney, and a house in Hopetown Avenue, Vaucluse. Details of the acquisition of and the defendant's equity in these properties at the time of the commencement of the relationship are set out below in this section. 116But there is one other property, at Caroline Street, Westmead, which the defendant purchased in early 2001 for $169,000 and sold in September 2009 after these proceedings commenced for $279,000. The defendant says she had the Caroline Street, Westmead property before the relationship started. But the plaintiff says this property was purchased during the relationship. I have found that the plaintiff was right about when the relationship commenced. Therefore this property is considered in these reasons as one of the properties acquired during the relationship. But it was acquired so early that its acquisition makes little difference to the overall assessment of the relative financial contributions of the parties. I do not accept that the plaintiff made any financial contribution in respect of this property. By the time the relationship commenced the plaintiff had also started to acquire some small podiatry practices, described below. The defendant also owned some shares in three public companies, Consolidated Media, Crown Limited and Westpac. 117The plaintiff started investing in property by purchasing a terrace house in Campbell Street, Glebe in 1992, which was sold in 1998 for $420,000. She used the proceeds of this sale to purchase the two Macquarie Street, Sydney professional suites, (suites 207 and 508) and to give her the capacity to enable her to buy the house in Vaucluse. Each of suites 207 and 508 in Macquarie Street had a value in late 2001 of $120,000. The house in Hopetown Avenue, Vaucluse was worth approximately $1.3 million. It was sold very shortly after the beginning of their relationship in January 2001. The defendant then had a single major liability, a loan to HSBC over the Vaucluse property for $1 million. Her net position at the beginning of their relationship was about $960,000 (being $420,000 + $240,000 + $1,300,000 - $1,000,0000). 118The defendant's financial position had steadily improved over time from her first 1992 property investment in Glebe and continued right through until about 12 months after the relationship started. It peaked in late 2001 and declined without variation continuously from 2002. The objective facts speak of that clearly through the narrative below about the financial course of the relationship. 119The Defendant's Professional Practices. The plaintiff built up her podiatry practice between 1992 and 2001. She acquired five existing practices during this period, adopting a standard acquisition and operation formula that worked well. She was quite commercially astute in acquiring (or establishing) and running the multi-located practices that she built up in this nine-year period. By 2001 she had acquired, retained and was operating podiatry practices in Mascot, Surry Hills, Neutral Bay, Bligh Street, Sydney (which she moved to Macquarie Street, Sydney) and Crows Nest. She operated all these practices in 2001. 120The plaintiff's formula was simple: after acquiring (or establishing) a new suburban podiatry practice she hired the podiatrists and office staff; attended to supervise them on designated days of the week; paid the engaged podiatrists 50 per cent of gross fees; met expenses out of the other 50 per cent of gross fees and took the balance, after paying all expenses, as her profit. She says, and I accept, "the system worked well, and both the employed podiatrists and I made money". The podiatrists had a financial incentive directly related to the number of patients they saw. The plaintiff had a financial incentive to control local practice costs so as to maximize her profit out of each practice. 121The plaintiff was professionally entrepreneurial and found her financial feet in this nine-year period. She first acquired a podiatry practice in Mascot in 1992 for $25,000 using a loan from her father. Her second practice was established three years later in 1995 as part of the Surry Hills Medical Centre. There is no evidence of the investment costs of setting up this practice. Then in 1998-1999 she purchased a podiatry practice in Neutral Bay for $65,000. 122The plaintiff kept adding practices. In 1999/2000 she acquired the patient records from a retiring podiatrist in Bligh Street, Sydney for $10,000 and then established a base to service those patients from her first rooms in Macquarie Street, Sydney. Finally, in 2001 she bought a podiatry practice in Crows Nest for $9,000. 123The plaintiff was able to do all the required weekly administrative juggling to keep these five practices operational until 2001, indicating her professional discipline. But the soundness of her business model is somewhat harder to judge. There is evidence of the gross fees from these practices increasing up to 2001. She did not seem to have to over extend herself. The evidence does not suggest she was overburdened with debt in 2001. The staffing and remuneration arrangements in each of the practices were stable. I accept that she had good relationships with all her professional and non-professional staff in these practices in 2001. Indeed I also accept the judgment of the plaintiff's witness, Dr Shale Preston, who knew both the defendant and the plaintiff, that the defendant was an astute businesswoman and was highly successful at her business. 124The defendant's operation of these five podiatry practices has been conducted throughout by three companies, incorporated respectively as follows: Kitty Winks Pty Limited ("Kitty Winks") incorporated in 1997 before the parties met, Dogstar Diamond Pty Limited ("Dogstar Diamond"), incorporated in September 2004 when the parties had been together for about four years; and SFAC incorporated in February 2005, a few months after Dogstar Diamond. The course of incorporation and funding of these three companies was a contentious part of these proceedings. 125Upon incorporation in 1997 Kitty Winks was originally known as the "Sydney Foot and Ankle Clinic Pty Limited", the same name as was later used by SFAC incorporated in 2005. This entity changed its name to Kitty Winks in February 2005 when SFAC came into existence. The defendant was the sole shareholder and director of Kitty Winks, which owned the Mascot, Surry Hills, Neutral Bay, Macquarie Street, Sydney and Crows Nest practices. Kitty Winks became the object of two investigations by regulators, the first in 2001 by the HealthCare Commission and the second in 2002 by the Federal Department of Veterans Affairs. These incidents were the subject of other evidence analysed later in these reasons. Kitty Winks administered all these five practices from Suite 207 Macquarie Street, Sydney. The plaintiff never acquired any shareholding interest in Kitty Winks and never joined the defendant as a director of that company. 126Dogstar Diamond was incorporated in September 2004 to acquire another surgery at Suite 201, Macquarie Street, Sydney for $275,000. The external sources of funding for this were the following. Eclipse Prudent Mortgage Corporation Limited ("Eclipse") funded $150,000 of this purchase price and Macquarie Bank (through an extension of the defendant's existing line of credit with Macquarie Bank) a further $100,000. But some of this money, and the balance of the purchase price was formally advanced by Kitty Winks to Dogstar Diamond. I accept the genuineness of an agreement dated 26 November 2004 between those two entities that accurately records the following loans being made by Kitty Winks to Dogstar Diamond for the purchase and development of Suite 201: (1) $27,500 loaned for the deposit on the purchase on 8 September 2004; (2) $145,569 loaned on 17 November 2004 for the balance of the purchase price and $8,140.22 loaned on 27 January 2005 to pay for renovations. I accept the defendant's evidence that Dogstar Diamond has not repaid any of these monies to Kitty Winks and the full amount is still outstanding. Dogstar Diamond's Suite 201, Macquarie Street Sydney is an investment property, now tenanted by a medical practitioner. The defendant has never conducted a podiatry practice from Suite 201 and seeks to have it sold in the relief she claims in these proceedings. 127SFAC was the last of the three companies incorporated during the parties' relationship. SFAC took over two of Kitty Winks' original podiatry practices: the ones conducted respectively at Suite 207, Macquarie Street Sydney and at Crows Nest. The other three practices had closed by the end of 2004. SFAC continued to operate these two practices in Crows Nest and Macquarie Street until they too closed down when the defendant ceased practice in 2011. SFAC still owns Suite 207, Macquarie Street Sydney. The defendant still hopes to resume her podiatry practice from this address. For that reason she wishes, if at all possible, to retain Suite 207. 128Returning to 2001, apart from its five practices Kitty Winks owned two other assets: a share portfolio worth $100,000 and the apartment (with garage) in Caroline Street, Westmead, purchased in 2001 for $169,000. The defendant acquired both the Westmead property and the shares entirely with cashflow from her own resources. By the time the Westmead property was acquired the parties' relationship had not been going long enough for the plaintiff to have contributed much to its acquisition even indirectly through her non financial contributions, or through her Fairfax earnings. 129This completes the balance sheet for the defendant's assets in mid 2001. Thus in summary the plaintiff brought about $67,000 in financial resources to the relationship and the defendant brought to it a little over $1 million.

Financial Contributions During the Relationship 130The parties had disputes about their financial dealings in three main areas: (1) their investment properties; (2) the podiatry practices; and, (3) their domestic life. Substantial contests of fact must be resolved in each of these areas.

(1) The Property Investments 131The plaintiff and the defendant invested in three different parts of Australia during their relationship: they acquired development properties in Queensland's Whitsunday region; they acquired another surgery in Macquarie Street, Sydney; and, they acquired two properties in their joint names in Tasmania. The circumstances in which they purchased each of these groups of properties were the subject of contention in the proceedings. Each of their three areas of investment is dealt with below. 132The Property Investments - The Whitsunday Developments. In August 2002 the defendant first purchased and developed through Kitty Winks Lot 35 Jubilee Pocket (referred to in these reasons as "No. 14", to distinguish it from other nearby properties in the region that the parties acquired later) She acquired No. 14 for $55,000 funded with a line of credit with Macquarie Bank and Kitty Winks' cash flow. A house was built on the land in May 2003 with a further loan for that purpose. The property has been tenanted since and the tenancy proceeds, less expenses, paid into Kitty Winks' account. The plaintiff did not make any financial contribution to this property. But this property gave her a taste for property development in the Whitsunday region. 133In November 2003 the defendant purchased three blocks of land in the same area of the Whitsundays, in her own name, which properties will be known in these proceedings respectively as No. 10, No. 13 and No. 15, Jubilee Pocket. The defendant used earnings from her podiatry practices to fund the purchase of No.s 10, 13 and 15. The plaintiff purchased another nearby lot, in her own name, which will be referred to shortly in these reasons. 134The defendant planned to develop Lots 10, 13 and 15 Jubilee Pocket. She selected houses to be built on each of the lots and in 2004 negotiated building contracts. In 2005 the defendant sourced construction and development funding from the Bank of Adelaide through Pioneer Mortgage Services which funding was secured over No's. 10, 13 and 15. 135There were difficulties with the builders developing No.s 10, 13 and 15. This led ultimately: to the extension of what would otherwise have been a 6 month building project out to one of 18 months; to litigation in the Queensland Building Tribunal, which was eventually settled; to the builders walking off the site; and, to a substantial increase in the defendant's monthly holding costs during the construction period, before the three properties began to generate any income. The plaintiff was involved in some of the dealings with the builders and in trying to resolve the dispute. It is not possible to attribute blame for these problems with the builders at this distance. But the builders were also going to construct a house on the plaintiff's property and this explains her own involvement, as much as her assisting the defendant with the project. 136Importantly on the issue of financial contribution, I find that the defendant paid for all the litigation associated with these three properties, No.s 10, 13, and 15 Jubilee Pocket. The plaintiff benefited from these payments because the builder with whom the dispute was being conducted was to construct a home on the plaintiff's adjoining Jubilee Pocket property. The plaintiff did not make any financial contribution to these properties. 137The defendant paid the Adelaide Bank's mortgage instalments for No.s 10, 13 and 15 Jubilee Pocket, out of their rental proceeds. The properties have been managed by a local real estate agency since April 2006. Any surplus from these properties has been paid into Kitty Winks bank account. 138Two of these properties, No. 15 and No. 10 have now been sold. On 21 October 2011 No. 15 was sold for $319,000. There were no net proceeds of sale. No. 10 was sold on 23 November 2011 for $325,000 and the net proceeds of sale were $6,857.33. The defendant was permitted by the Court's orders to use this sum to defray her living and legal expenses leading up to the hearing. 139The plaintiff wanted her own property in Jubilee Pocket. So the defendant funded the plaintiff's purchase of another development block, Lot 38, for the plaintiff, adjacent to lots No. 10, 13, and 15. The defendant's funding of this property seemed to be a combination of benevolence to the plaintiff and a subtle attempt to divert the plaintiff's attention from becoming too closely involved with the defendant's development of her own nearby properties, by giving the plaintiff a project with which to occupy herself. The defendant loaned the plaintiff $40,000 through Kitty Winks to purchase Lot 38. But the defendant's original advance of $40,000 has never been repaid. The plaintiff says he repaid this sum but I do not accept her evidence as to this. The claimed repayments are not substantiated in any way. The plaintiff says that she made repayments to Kitty Winks. The plaintiff was sufficiently astute a person to be able to keep a record of such a repayment if it were made. 140The defendant also loaned the plaintiff development finance of $157,000 to build a house on Lot 38. Once the house on Lot 38 was completed the plaintiff re-financed. There is a dispute as to whether or not the plaintiff has repaid the defendant or Kitty Winks the $157,000 development finance. I do not accept her oral evidence that she has done so. I do not accept that the plaintiff has ever satisfactorily accounted to the defendant for this sum. The plaintiff has taken out various loans from Bankwest in relation to this property but none of the documents she relies on shows that she has repaid the money owed to Kitty Winks. 141The plaintiff has herself managed the tenancy and outgoings of Lot 38. She has been able to use any surplus for her own purposes. The plaintiff did not give the defendant any income from this property, to repay her original $40,000 advance for its purchase. The property was sold in March 2011 for $310,000 with nil surplus. All the proceeds went to pay out the then mortgagee Citigroup. 142The Property Investments - The Tasmanian Properties. The defendant funded the purchase of a vacant block of land at Bakers Beach, Tasmania in June 2003 for $25,000. The property was purchased unencumbered out of cash flow from the podiatry practices. The defendant initially proposed to purchase this property in her own name. But I accept the defendant's account that the plaintiff persuaded her to have the purchase proceed in their joint names. The defendant fully funded this purchase with monies drawn from Kitty Winks. The acquisition of the Bakers Beach property in joint names is an example of the defendant giving away to the plaintiff's persuasion and conferring a financial benefit on the plaintiff. I wholly accept the defendant's description that unless the plaintiff got her way in such matters, she would become very difficult with the defendant. As a result the defendant tended to give into her. The plaintiff made no financial contribution to the acquisition of this property. The land is still undeveloped. The plaintiff has paid some of the Council rates to conserve this property. It seems to the Court that this jointly held property must be sold and its proceeds made available to the parties. 143The defendant also fully funded the purchase of a residential property in Ambleside, Tasmania for $285,000, which settled on 30 April 2007. Although I found the parties' relationship had ended in September 2006 it is convenient to deal with the acquisition of this property at this point. It was acquired at a time when the plaintiff at least says the relationship was still on foot. Even on the Court's findings it was acquired within approximately six months of the end of their relationship. The defendant's acquisition of the Ambleside property was really a device, albeit a costly one, to try and get the plaintiff away from mainland Australia and out of her life. Consistently with that I find that the defendant has never lived at this property. The Ambleside property is unencumbered, because the defendant extended her existing Adelaide Bank Mortgage by an amount of $270,000 to pay for the purchase of this property. The plaintiff did not make any direct financial contribution to the acquisition of this property. The extension of the Adelaide Bank mortgage was secured over Lots 10, 13 and 15 Jubilee Pocket, the Sentry Court properties. The defendant has continued to make interest payments in respect of this advance of about $24,000 per annum. She has now paid in excess of $120,000 in interest to conserve this property, in which the plaintiff has lived. 144The Property Investments - Suite 201 Macquarie Street. As previously explained when dealing with the incorporation of Dogstar Diamond, in 2004, that company purchased Suite 201, Macquarie Street, Sydney, the remaining property purchased during the parties' relationship. 145The current investment position of Suite 201 may be shortly stated. It has been informally leased by medical practitioners and the rental payments made to Kitty Winks from which the defendant has authorised the payment of all outgoings, including water rates, Council rates, strata levies and the monthly mortgage instalments to Eclipse of $1,062.50. The income from rentals has not been able to meet all these outgoings and the defendant has met the difference from her own resources. I accept the defendant's evidence that the plaintiff has not contributed to meeting this shortfall. The loans from Kitty Winks to Dogstar Diamond for the acquisition and development of Suite 201 are still outstanding. 146The defendant submits, and I accept, that the potential benefit accruing to the plaintiff from her joint shareholding in Dogstar Diamond is a financial benefit she has derived from the relationship. But this joint involvement in this company cannot continue as the relationship is ended.

(2) The Podiatry Practices 147As has been described above in these reasons under the heading "A turning point - 2002", from the year 2002 the plaintiff interfered with the operations of the defendant's podiatry practices and damaged them financially. By 2004 the Mascot, Surry Hills, and Neutral Bay practices had closed. The defendant tried to sell them. But the plaintiff's disruptive activities had made them unsaleable. The Macquarie Street, Sydney and Crows Nest practices continued with diminished patient levels throughout the rest of the parties' relationship. The defendant was finally forced to abandon the Macquarie Street practice in 2011, after her 2010 injury prevented her from continuing to practice as a podiatrist. The Crows Nest practice had closed earlier partly because the landlord terminated the lease to re-develop the building from which it was conducted. The decline in the practices during the relationship is evident from their progressive closure and from the limited reliable financial information that the parties put in evidence. 148There was immense difficulty in these proceedings attempting to make sense of the parties' patterns of income and expenditure during their relationship. Limited information was produced by both sides in the proceedings to show the financial arrangements between them during the relationship. There were allegations on both sides of payments in cash being made and left unrecorded. Many documents were missing. Notices to produce were issued on both sides and documents produced at the last minute, documents that have not proved to be complete. Tax returns for the three corporate entities have not been lodged, although BAS returns have been. A limited degree of information came out of the engagement of Mr Ron Flood, an accountant, pursuant to the directions issued by Smart AJ at the 2010 hearing, for the production of financial statements for the three companies after 1 July 2001. Mr Flood provided a preliminary report in 2010 which merely records that the only reliable information about the companies that he has are their BAS returns and that further discussions with the defendant to identify other corporate information will be necessary. Some limited inferences about the operations of these companies can be drawn from Mr Flood's records of the BAS returns. But some of the patterns disclosed by his data support the inferences that the Court has drawn. The BAS returns for Kitty Winks, the defendant's primary vehicle for earning income as a podiatrist, show a relentless process of contraction in declared income between 2002/2003 and 2008/2009. The figures are the following: 2001/2002 - total sales $406,632; 2002/2003 - total sales $488,937; 2003/2004 - total sales $235,838; 2004/2005 - total sales $133,072; 2005/2006 - total sales $36,842; 2006/2007 - total sales $59,261; 2007/2008 - total sales $40,294; and 2008/2009 - total sales $60,148. 149I accept the declarations in the BAS reports are accurate. I have no reason to believe that the defendant was putting in false returns. The figures peak in 2002/2003 at sales revenue of almost $490,000. They decline steadily until 2004/2005 and then fall precipitously in 2005/2006 when the parties' relationship was going through a very negative period. The increase in sales between 2006/2007 and 2008/2009 is not consistent with the plaintiff's view that the defendant has been depleting herself of assets since the end of the relationship. There was less earned in the last year of the relationship than there was after the relationship ended. 150The parties survived financially during the relationship and the defendant survived after it concluded by consuming capital. Kitty Winks owned the Westmead property. I accept the defendant's evidence that its rent was paid into the Kitty Winks account and outgoings paid from that account. The defendant sold the property in 2009 September to meet the defendant's growing liabilities; just as Suite 508 was sold in September 2008 to meet Kitty Winks' liabilities to the NAB and Macquarie Bank.

(3) Domestic Financial Contributions 151On the domestic side of the parties' relationship, their respective financial contributions to their property must partly be assessed in light of the way their various households were set up. It would be a mistake to assess the parties' respective domestic financial contributions on the basis that they both perceived they were equally sharing all household expenses. A common feature of each of the five households that the plaintiff and the defendant shared was that they were rented accommodation in which the defendant was the named tenant holding the principal responsibility for rent, not the plaintiff. The plaintiff never made herself a co-obligor in any of these tenancies. The plaintiff did make some financial contributions to the joint household but how much and in what form was in strong contest. But I find that the defendant always bore the regular financial expense of the rent for them both. A short account of the parties' occupation of these various properties follows. 152October 2000 - March 2001. When the parties' relationship commenced the defendant was living in a five bedroom house in Grasmere Road, Neutral Bay owned by a former boyfriend of the defendant for which she was paying cash rent of $249 per week. I accept the defendant's evidence that she also stayed for periods with other male and female friends during this period. The plaintiff stayed at the house from time to time, including when she was having a relationship with Dr Shale Preston, another resident in the house. I do not accept the plaintiff's evidence that she made a financial contribution to this household. Nor did she pay any rent at this property. 153March 2001 - March 2003. The defendant's next residence was a three-bedroom property at Nook Avenue, Neutral Bay for which she paid rent of $420 per week. She was the only tenant recorded on the lease. She lived there for much of the time with a male friend with whom she had a close personal relationship. I accept too that during this period the defendant often stayed with another boyfriend, who lived in Annandale. But in my view there was still a de facto relationship with the plaintiff at this time. 154March 2003 - March 2005. The next two years the defendant leased a five-bedroom house in upper Minimbah Road, Northbridge, again as the only tenant recorded on the lease of that property. The defendant made all the rent payments for this property to the landlord as is confirmed by the tenant ledger. The plaintiff shared this property with the defendant during this period of their relationship but I find the plaintiff did not contribute to the rent. 155March 2005 - March 2006. From March 2005 to March 2006 the defendant leased a four-bedroom house at Linden Way, Northbridge, again as the only tenant on the lease. The plaintiff moved into that property. I reject the plaintiff's claim that she was a co-tenant of this and the previous property. I do not accept that the plaintiff paid rent for her residence in this property. The defendant also points out that the plaintiff had a separate bedroom in the property from this time. I accept the defendant's evidence that sexual relations between herself and the plaintiff had ceased by about December 2004. 156February 2006 - onwards. The last residence that the defendant leased and which she still occupies is in Sugarloaf Crescent, Castlecrag, where she is a tenant of a four-bedroom residence paying over $2,300 per month in rent. The defendant says, and I accept, that other friends came and went from this residence from time to time. I do not accept the plaintiff's evidence that she contributed to the rent obligations for this property. 157The defendant says, and I accept, she paid all rental outgoings in respect of these properties. I also accept the defendant's evidence that the plaintiff never directly financially reimbursed the defendant in respect of the rental or utilities costs of this accommodation. The plaintiff did not advance any substantiation of such reimbursement and I am not prepared to accept her oral evidence that she did. 158The plaintiff's case that she had made financial contributions to her joint household with the defendant was not supported by her income tax returns. The taxable income for the first year of the parties' relationship FY 2000-2001 was $57,991. It fell away dramatically after that: $8,513 for FY 2001 - 2002, $9,747 for FY 2002 - 2003, $1,008.84 for FY 2003 - 2004 and $3,319 for FY 2004 - 2005. The plaintiff says that she had savings of about $20,000, which she had exhausted by about 2003. I accept that she did have these savings and they were exhausted by about 2003. 159Once her savings had run out the defendant needed other sources of income. One of those sources was her Independent Contractor Agreement for her work at the podiatry practices. But she of course denies receiving anything under that agreement. Although it must be said that the receipt of that income does not reconcile well with her low declarations of taxable income for the FY 2003 - 2004, FY 2004 - 2005. There is evidence, see below, of the plaintiff sourcing substantial sums from the practice's bank accounts. But nor do these receipts obviously reconcile with what the plaintiff might have earned under the Independent Contractor Agreement. 160The plaintiff claims that she paid an average of $635 per week towards the expenditure of the household. But she does not satisfactorily explain from where this money came. Nor does she have any receipts to substantiate how such a sum could be credibly calculated. On both these grounds I do not accept her evidence of these domestic financial contributions. 161The plaintiff also says that she gave the defendant a cash payment of $175 per week for rent. I do not accept this evidence. She had no receipt for even one such amount. The plaintiff was not so without care for her own financial interests that later in the relationship she could not choose a payment method that would leave some trace of her contribution to the rent, particularly towards the end of the relationship in 2006. 162The plaintiff received $40,000 compensation from the claim that she made against NSW Police for false arrest. But that was not until about 2005. There is an objective basis to infer that the defendant was paying the plaintiff for her work in the podiatry practices after the end of 2001. The plaintiff does not claim to have any source of income outside her work for the defendant. But the plaintiff nevertheless was able to make substantial and regular deposits to her NAB account and towards amounts owing on various credit cards that she held. One obvious source of this income would be her paid work for the defendant's practices. But another source of the income is a large amount of money taken in cash from the practices and paid into the NAB account which was not explained by earnings under the Independent Contractor Agreement and was well in excess of the expected earnings under such an agreement between 6 January 2006 and 26 September 2006. The plaintiff made 38 deposits totalling $100,138.69 into her NAB account in this period. These deposits occurred every few days. The average deposit amount is between about $2,000 and $3,000. There are some deposits as low as $56 and some as high as $6,000. The deposits are described as either "cash", "transfer", "internet" or "loan/Talus Diamond". Some $20,240 of the total in deposits are described as being "cash". 163There can be no doubt on this evidence the plaintiff was taking very large amounts of money out of the podiatry practices. I doubt that the removal of all of this money was authorised by the defendant. The plaintiff has not identified any place this money could have come from other than from the defendant. The plaintiff did not produce bank statements for her NAB bank account prior to 2006. Nor does she give an explanation as to why the earlier NAB bank statements were not available. I infer from this that the earlier statements were not of assistance to her case. Even without the earlier statements though, there is strong evidence here of monies that she was removing from the business in 2006. Again this does not reconcile well with the BAS statements as to the amount of revenue coming into the business. 164The plaintiff's application of these funds out of the NAB account shows that she needed money from the defendant, that her needs were so great that she had to borrow money from the defendant, and that the monies that she received were apparently applied for her own, the plaintiff's, personal benefit, and were not obviously defrayed on purely joint expenses. For example, the plaintiff's own description of these payments characterises many of them as "loans". Much of the money paid into the plaintiff's NAB account was transferred into her Bankwest Visa account. For a period between 15 December 2005 and 5 January 2007 the plaintiff transferred a total of $66,320 from her NAB account into her Bankwest Visa account in amounts ranging from $140 up to $10,000. A total of $28,500, in separate payments, was constituted by separate payments paid on 10 March 2006. Thus the revenue from the defendant's practice was keeping the plaintiff's Bankwest visa credit card within limits. The charges on this Bankwest visa card show that the plaintiff was not living frugally. 165In addition to this income from the defendant, I also infer that the defendant paid cash advances to the plaintiff's ANZ visa gold card. Between 22 August 2005 and 25 August 2005 the defendant took cash advances from this card of $12,000 in 6 separate payments (of which some $4,000 was reversed). Although only $2,000 of this money was clearly paid directly into the plaintiff's Bankwest visa card, I infer from that payment that other payments were also made for the plaintiff's benefit as well. The plaintiff was receiving very substantial amounts of cash from the defendant in 2005 as well as 2006. 166The plaintiff had a number of other credit card accounts, which were not the subject of full disclosure in the evidence. To the extent that statements for those card accounts are in evidence they do show receipts of further cash, from unknown sources. The plaintiff has not clearly identified any source of other than the defendant for this cash to herself during this period. 167A general difficulty in dealing with the plaintiff's evidence of all matters of her domestic contributions that she produced a large number of documents in the course of her re-examination some of which turned out to be documents that she should have produced in answer to notices to produce well before trial. The defendant only had a limited opportunity to deal with this material. But to the extent it could be analysed, it does not change the picture of these findings.

Non Financial Contributions - Property (Relationships) Act, s 20(1)(a) 168The parties' non-financial contributions can be analysed by reference to their domestic life together and to the podiatry practices.

Non-Financial Contributions - Domestic 169Amidst the contests between the parties about non-financial contributions to the household the evidence of Mrs Maroulis stands out. Her judgments were in my view accurate. She presented a picture of the plaintiff being more of a gardener and enjoying growing flowers and vegetables and doing the cooking and bringing the plaintiff's interest in Mediterranean style food to add culinary flavour to the relationship. 170Mrs Maroulis also had recollections of the defendant often sweeping and doing other similar work around the house, if the defendant was not at work or visiting clients in her podiatry practice. She presented a picture too of the defendant pursuing her athletic interests in triathlons. The overall impression that one has from Mrs Maroulis' evidence is that the plaintiff and the defendant were each contributing in her own way to the maintenance of the household and the domestic work of the household that needed to be done. 171On the basis of Mrs Maroulis' evidence I find that the plaintiff's non-financial s 20(1)(a) contributions during the couple's domestic life were about equal to those of the defendant. This is an area where the defendant tended to down play the plaintiff's contribution somewhat. But on this issue the plaintiff is well supported by her sister's reliable evidence.

Non-Financial Contributions - The Practices 172The plaintiff claims she made a substantial non-financial contribution to the operation of the podiatry practices. These reasons have already made findings about the destructive effect of the defendant's involvement in the running of these practices. But I also find that the plaintiff's own case about her contribution to the practices does not withstand scrutiny. 173The plaintiff says that she gave up her career at Fairfax Newspapers to work without salary in the podiatry practice. I do not accept that. I accept the defendant's evidence that the plaintiff and she entered into an Independent Contract Agreement, as the defendant explained, "as was the usual policy of the practice". And I also accept the defendant's evidence that the plaintiff was paid in cash for the work that she did under this agreement. The advantage to the defendant of an Independent Contractor Agreement was that the practice was not responsible for PAYG tax payments. I accept the defendant's evidence that the plaintiff said to her in about late 2001 "I want to be an independent contractor and will sign an agreement to confirm this". The defendant did not have at the hearing a copy of the actual Independent Contractor Agreement signed by the plaintiff but I find that one was signed. The defendant had dealt with a number of other workers at the podiatry practices this way. 174I find the defendant paid the plaintiff for all the work the plaintiff did at the practices. The plaintiff did not make a non-financial contribution for the benefit of the practices. But the plaintiff says that she worked very long hours at the practice. This is hard to credit and I do not accept it. The plaintiff says she worked from the time she left Fairfax until August 2006, about five and a half days a week, averaging 50-60 hours per week. I do not accept that the plaintiff worked such hours for no remuneration. I accept the defendant's evidence that the plaintiff answered telephones, made appointments and did administrative tasks in connection with the practice for an average to 20-30 hours per week until June 2006, for which she was fully paid. 175Working such hours and being paid anything at all was not consistent, in any event, with the plaintiff claiming Centrelink benefits as she did for much of this period, on the basis that she was unable to work. And also it is not consistent with her claim for damages against the NSW Police for false arrest in October 2004, which event she alleged had prevented her from working because she was phobic and could not mix with people. Inconsistently with her statements to Centrelink and to others she worked and she was paid for what she did. Although it must be said that the defendant's records of a proper payment system were virtually non-existent. In my view the plaintiff paid herself simply by taking monies out of the practices as she saw fit. These "payments" were well in excess of what she could earn for the hours she actually committed to the practices under the Independent Contractor Agreement. The plaintiff's written declaration to Centrelink (to obtain a social security benefit) was that she had been out of work since her Fairfax employment was terminated in November 2001. Centrelink reviewed the plaintiff's capacity to work for the purposes of the Social Security (Administration) Act 1999. In that review in answer to the question "If there was a job available, what kind of work do you think you could do now (e.g. desk work, labouring, answering phones, driving etc)?" The plaintiff replied on 18 October 2004, "No, I am unable to work". I find that she declared to Centrelink officers and to Dr Thomas Oldtree Clark that she had "developed an anxiety disorder and had not been able to function in full time work for the last three years". Quite wrong statements such as these to third parties about her working capacity, persons to whom the plaintiff had a duty to tell the truth, markedly damaged her credibility with the Court. It is difficult to accept the evidence of a person who would say such things. 176The plaintiff has exaggerated her contribution working in the podiatry practices in the later period between August 2006 and July 2007. Her claim was that she worked part time during this period, only attending the offices on average three days a week. I do not accept the plaintiff did any work for the practices this late in their acquaintance. In September 2006 the plaintiff had gone to Queensland with Ms Gabrielle Maas. Between October and December the same year she was living in considerable fear of Ms Maas, for a period at Bateau Bay and also for a period in Chippendale. Then in December 2006 she went to live in Tasmania. She could not have possibly have worked in the practices in this period. I find this claim is false 177The plaintiff did attend at the Macquarie Street, practice after August 2006. But I accept the defendant's evidence that when she did so she was there for her own personal reasons: to gain access to the internet, which was not installed at their Castlecrag home; and, to make phone calls and conduct her own business affairs. I do not accept the plaintiff did unpaid work for the defendant during this period. 178In summary, the defendant made greater non-financial contributions than the plaintiff in their business lives, although in their domestic lives their respective non-financial contributions were about equal.

Contributions to Welfare of the Other - Property (Relationships) Act, s 20(1)(b) 179Mrs Maroulis also gave compelling evidence about the parties' contribution to one another's welfare, which I accept. Mrs Maroulis' evidence helpfully presented a picture, that I conclude mainly came from the earlier part of their relationship, in which she explained that each purchased special treats for the other "a little something they thought would please the other", "something a bit cute or something personal or quaint". Mrs Maroulis added "it wasn't really for me to understand. It was something between them". I find that despite their differences the plaintiff and the defendant equally provided support and aided the welfare of the other. 180But from 2004 onwards the relationship was far less mutually beneficial. I accept the plaintiff's evidence, she suffered personal trauma in 2004 when the NSW Police arrested her. It is difficult to infer that she made a net contribution to the welfare of the defendant in the course of the relationship after this time. The plaintiff was keen to explain in evidence her vulnerability and the devastating effect of this and other incidents upon her. I do not think that she was feigning this emotion. She struck the Court as quite emotionally fragile and affected at least in her own mind by these events. I do not think she had any personal resources left to giving more to the defendant's overall welfare during the relationship than she received back in similar support from the defendant. 181I do not think that she made a contribution to the defendant's welfare in the course of the relationship any greater than that she received from the defendant. Indeed in my view the defendant, being the person who was less in need of care and support than the plaintiff, especially from 2004, conferred a net welfare benefit on the plaintiff over the course of the relationship. As a result there is no adjustment of property interests warranted in the plaintiff's favour on account of this factor. Rather it is a factor that warrants a grant of relief on the cross claim.

Stage Three - What, if any, Order is Required to Recognise the plaintiff's Contributions?

Approach to the Third Stage 182In considering the third stage of the exercise of discretion under Property (Relationships) Act, s 20, the Court is concerned with what is "just and equitable" having regard only to the respective contributions of the parties of the type referred to in s 20; and, there is no warrant for having regard to other factors such as the respective means and needs of the parties: Wallace v Stanford (1995) 37 NSWLR 1 and Evans v Marmont (1997) 42 NSWLR 70 at [81]. 183The Court has a discretion as to whether to adopt an "asset by asset" approach or a "global" approach in deciding what is an appropriate order; the Court has very wide discretion as to which approach may be adopted; but there can be cases where one approach is more clearly appropriate than the other: Kardos v Sarbutt (2006) 34 Fam LR 550 at [52] - [53]. In many cases the global approach is likely to be more convenient than an asset-by-asset approach, but that is not always so. But the defendant raised one issue that was specific to this third stage, the issue of notional rent.

Notional Rent 184The defendant also asks for an adjustment in her favour in respect of notional rent for the plaintiff's occupation of the Ambleside property during the period between the end of the parties' relationship and the date of trial. This is a substantial period of over five years from April 2007, when the property was purchased, until February 2012. The plaintiff resists the making of such an adjustment. She says that she paid all the rates and taxes on the Ambleside property during the same period and has correspondingly relieved the defendant of that burden. Whilst that seems to be true, the plaintiff has not substantiated her making any other investment in improving this property during this five-year period. 185The authorities suggest that caution should be exercised in acceding to a submission to adjust in respect of notional rent after separation. Undertaking an adjustment for "notional rent" for post separation occupation can result in the giving of undue weight and significance to a single contribution. Notional rent is obviously to be taken into account and I do take it into account. But the proper way to do this is often as part of the overall evaluation of the parties' contributions during the relationship and not as a final single additional adjustment: Kardos v Sarbutt (2006) 34 Fam LR 550; [2006] NSWCA 11 at [78]. 186In this case the defendant has made a substantially greater contribution to the acquisition, conservation and improvement of the joint property of the parties. If there were no property the subject of these applications other than the Ambleside property I might have taken the course of allowing a precise amount of notional rent in the defendant's favour, especially because the defendant has sustained over $120,000 in interest costs on this property in the last five years. But here the better course is not to make such a precise adjustment. But I do take notional rent into account in the overall result along with the fact that the defendant has had the benefit of the plaintiff paying for rates and taxes on her share of this property for the same period.

Conclusions on Adjusting Orders 187In my view, there is no basis for making an adjusting order in the plaintiff's favour in this case. To the contrary, there is a strong basis to grant relief on the defendant's cross-claim. 188The defendant's financial and non-financial contributions to the acquisition, conservation and improvement of their property and to their financial resources very substantially outweigh the plaintiff's contributions. Such a general conclusion can be drawn and acted on by the Court: Proudman v Dickason [2008] NSWSC 681. The disparity in contributions arises in two main areas. The first is in the assets brought to the relationship. The second is in the conservation and improvement of those assets. The defendant brought a little over $1 million to the relationship. The plaintiff brought about $67,000 in October 2000. During their relationship the plaintiff was in my view fully paid for her work in the defendant's podiatry practices. Moreover, and more importantly, the plaintiff bears personal responsibility for the destruction of much of the value of the property, which the defendant brought to the relationship, specifically the podiatry practices. I find that but for the influence of the plaintiff that the defendant would have been able to conserve and improve her five podiatry practices. But three were closed during the relationship and the remainder lost value for reasons in my view associated with the conduct of the plaintiff within them. Far from such conduct warranting an order in the plaintiff's favour; it is in my view more likely to warrant an order in the defendant's favour for an adjustment of property against the plaintiff. 189The position is no different with respect to the parties' investing activities in Queensland. The defendant conferred considerable benefits on the plaintiff, allowing her to acquire an investment property in Queensland she would not otherwise have been able to do. The plaintiff has not paid the defendant or Kitty Winks back the loans made to the plaintiff to acquire this property. At the same time the plaintiff did not financially contribute to the defendant's investments in the same area. There is no basis looking at that area of the parties' lives for an adjustment in the plaintiff's favour. 190The same is true of their domestic life. I do not accept on the plaintiff's income that she was able to contribute financially to the maintenance of their joint household more than the defendant. In my view the defendant was a considerably greater financial contributor to the financial maintenance of their joint domestic life and the plaintiff's lifestyle. 191The plaintiff's attempts to make non-financial contributions in the business side of the parties' relationship through the podiatry practices contributed to the loss in their net assets. Her contribution, in my view, was negative on this front. No adjusting order in the plaintiff's favour is warranted by reason of her non-financial contributions. Although the plaintiff's non-financial contributions in domestic matters were probably much the same as those of the defendant. 192Finally, the defendant's contribution to the parties' welfare was substantial and outweighed any reverse contribution. This is because the plaintiff herself said she was a very damaged by a number of events in the course of their life. That is evidence that I accept. It was the defendant who had the greater burden of looking after the plaintiff and ensuring her stability, health and welfare during the relationship, especially its latter part. There is no basis to make an adjustment in the plaintiff's favour on this account either. 193For all these reasons, in my view the plaintiff's claim for an adjustment of property in her favour fails. But the question now arises as to what orders should be made. The defendant has proposed a set of orders in her cross-claim that in my view are appropriate to this situation. There does perhaps need to be some final opportunity allowed to the parties to put submissions about the final form of relief in light of the more detailed findings in this judgment. That opportunity will be afforded to the parties under a timetable to be agreed. 194In my view, the defendant should: (1) retain No. 13 and No. 14 Jubilee Pocket because of her contributions to them and because they funded the Ambleside property; (2) retain Suite 207 which was acquired well before the relationship started; (3) have the benefit of the sale of the Tasmanian properties and receive her half share after she is credited with the interest payments of $120,000 she made to conserve the Ambleside property; and (4) Dogstar Diamond's assets should be sold and any net proceeds divided equally, after its external liabilities and liabilities to Kitty Winks are discharged.

Conclusions and Orders 195Accordingly, I have concluded that the plaintiff and the defendant were in a de facto relationship between October 2000 and September 2006. This relationship constituted a "domestic relationship" under Property (Relationships) Act, s 5. But I have also concluded that the parties' current property holdings already reflect their respective financial and non-financial contributions and respective contributions to one another's welfare during their relationship under Property (Relationships) Act, s 20. This is not a case where in my view any adjusting order is warranted under the Act, and I decline to make such an order. 196Nevertheless, some orders need to be made to unwind their affairs by disposing of a number of property interests that the parties hold in common and to release their properties from existing restraints. The parties agreed at the commencement of the hearing before me that no issue would be raised between them as to the jurisdiction of the Court to make in personam orders requiring each of them to deal with property held in States other than the State of New South Wales. They have agreed to submit to such orders without further argument. 197It is necessary to make some orders to deal with the properties in Queensland and in Tasmania. The properties in Tasmania held in joint names should be sold and the proceeds of sale, if any, distributed between the parties. Efforts should be accelerated to sell the Queensland properties, especially No. 13. The defendant has put some submissions about an appropriate form of orders to achieve this. I am inclined to make orders largely in accordance with the defendant's draft short minutes or order. I will hear further submissions from the plaintiff and the defendant about the final form of orders, including on questions of costs. 198The defendant has been largely successful in the proceedings. Ordinarily costs would follow the event. But in this case the plaintiff has applied a substantial degree of litigious effort to proving that there was a domestic relationship between herself and the defendant, an issue, which the defendant conceded only just before trial. The plaintiff may wish to argue that she should have the bulk of her costs on that issue or that there should be some adjusting order in relation to the defendant's costs, because of the non admission of that fact until a late stage. On the evidence that has emerged during the trial, and as these reasons show, the Court would have found that there was a domestic relationship between the parties of the kind the plaintiff alleged, had it not been admitted by the defendant. The admission was properly made. Thus a possible question on costs may be why the admission was not made earlier. I will hear submissions by the parties about this and other costs issues. One or other party may wish to seek some other special order as to costs. I direct the parties to file and serve any submissions on questions of costs within 14 days of the date of this judgment. 199Therefore the orders which the Court proposes to make are the following:- (1)Order the following properties (the "Tasmanian properties") commonly owned by the parties be listed for sale: (i)the Ambleside property in Tasmania; and (ii)the Bakers Beach property in Tasmania; (2)To give effect to the sale of the Tasmanian properties, the parties must do all such things and sign all documents and instruments necessary to sell the said properties at a price to be agreed between the parties within 28 days and in default of such agreement, at a price to be fixed by reference to the fair market value of the Tasmanian properties determined by a real estate valuer who shall be appointed by the Court under this order and who shall be paid out of the proceeds of sale of the Tasmanian properties. (3)If the sale of the Ambleside property precedes the sale of No. 13, Jubilee Pocket in accordance with these orders, then upon completion of such sale and after adjustment for outgoings, legal fees and disbursements, selling fees and commissions and other expenses relating to the sale of the Ambleside property and payment out of the amount outstanding on Pioneer Mortgage No YX 04, the net proceeds of sale shall be divided equally between the parties. (4)Note that neither party is prohibited from bidding or negotiating for the purchase of the Tasmanian properties. (5)Upon completion of the sale of the Bakers Beach property and after adjustment for outgoings, legal fees and disbursements, selling fees, commissions and other expenses relating to the sale of the property, the net proceeds of the sale shall be divided equally between the parties. (6)Order that the property owned by Dogstar Diamond Pty Ltd, the Second Cross-Defendant, be listed for sale, namely Suite 201, Macquarie Street, Sydney (the "Suite 201, Macquarie Street property"). (7)To give effect to the sale of the Suite 201, Macquarie Street property, the parties must forthwith do all such things and sign all documents and instruments necessary to sell the said property within 28 days at a price to be agreed between the parties and in default of such agreement at a price to be fixed by reference to its fair market value determined by a valuer who shall be appointed under these orders and paid for out of the proceeds of sale. (8)Upon completion of the sale of the Suite 201, Macquarie Street property and after adjustment for outgoings, legal fees and disbursements, selling fees, commissions and other expenses relating to the sale of the said property, the net proceeds of the sale shall be applied as follows: (i)to discharge any loan to Kitty Winks Pty Ltd as per the Agreement dated November 2004; (ii)to discharge the Mortgage with Eclipse Prudent Mortgage Corporation; (iii)to discharge any other registered mortgages on the title of the property; (iv)to repay to the Defendant the sum of $100,000 to be applied to her Macquarie Bank account in respect of the line of credit which was obtained to partially fund the acquisition of the Macquarie Street property; (v)the balance is to be transferred into the Second Cross-Defendant's bank account. (9)Upon the finalisation of the distribution of the sale of the Suite 201, Macquarie Street property an order that upon payment of all debts, taxes and other company expenses and the calling in of all debts, withdrawals and loans, the Second Cross-Defendant, Dogstar Diamond, is to be wound up and any proceeds are to be distributed equally to the shareholders. (10)Order that the Defendant may retain ownership of the property at Suite 207, Macquarie Street, Sydney and Kitty Winks retain ownership of the property at No. 14, Jubilee Pocket, Queensland. (11)Order that all personal items and chattels including motor vehicles, clothing, art, furniture, animals and superannuation monies which are in the possession of a party be retained by that respective party. (12)An order that if either party refuses or neglects to sign any necessary documents or instruments or to do any acts required by these Orders with such failure continuing for 14 days, then the Registrar in Equity of the Supreme Court of NSW is hereby appointed to execute such document or documents on behalf of the defaulting party.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 June 2012