Wilson v Vine [2003] NSWSC 341 (28 April 2003)

Last Updated: 29 April 2003

NEW SOUTH WALES SUPREME COURT

CITATION: Wilson v Vine [2003] NSWSC 341



CURRENT JURISDICTION: 2200/2003

FILE NUMBER(S): 2200/02

HEARING DATE{S): 1, 2 April 2003

JUDGMENT DATE: 28/04/2003

PARTIES:
Margaret Ann Wilson v Wayne Russell Vine

JUDGMENT OF: Master Macready

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:
Mrs M. Gilmour for plaintiff
Mr R.D. Wilson for defendant

SOLICITORS:
Humphreys & Feather for plaintiff
Stacks Family Law Services for defendant


CATCHWORDS:
Family Law. Application under Property Relationships Act 1984. Whether plaintiff's conduct in falsifying her evidence distentitled the plaintiff from relief. Held that in the circumstances of this case it did not. Order for adjustment made.

ACTS CITED:


DECISION:
Defendant to pay plaintiff $75,000 by way of adjustment of property interests.


JUDGMENT:

- 1 -
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION



Master Macready

Monday 28 April 2003


2200/02 Margaret Ann Wilson v Wayne Russell Vine

JUDGMENT

1 Master: This is an application under the Property Relationships Act 1984 for an adjustment of the parties’ property interests pursuant to s 20 of that Act. The parties commenced to live together at the defendant’s property at Berowra on 5 March 1998 and separated finally on 15 December 2001. The parties had no children as a result of their relationship. There is some dispute as to whether there was a separation for a period when the defendant suffered from a nervous breakdown in 1999 and I will now deal with that matter.

Interruption to the relationship

2 According to the defendant he moved into the back bedroom in the home in late 1999 when he suffered a nervous breakdown. He says that their sexual relationship ceased until he recovered in April 2001 and moved back into the main bedroom. The evidence shows that there was a continuing relationship between them and the evidence discloses considerable help given by the plaintiff to the defendant with his illness. She was a nurse who had experience with mental illness.

3 This raises the question of how a relationship of this nature terminates. There have been a number of references in the cases to the problem which started to surface in Australia in cases under matrimonial legislation which provided for parties living separately and apart as a ground for divorce. An earlier case which is of use on the general principles is Main v Main [1949] HCA 39; (1949) 78 CLR 636. At page 642 in the joint decision of the majority the following was said:-

"Although usually the existence of the conjugal or matrimonial relationship or consortium vitae means that the spouses share a common home and live in the closest association, it is not inconsistent with absences one from another, even for very long periods of time. It rests rather on a real mutual recognition by husband and wife that the marital relationship continues to subsist and a definite intention to resume the closer association of a common life as soon as the occasion or exigency has passed which has led to an interruption regarded by both as temporary.

In deciding whether there was at any specified date an existing matrimonial relationship, it is, I think, right to say that such a relationship does not end so long as both the spouses bona fide recognize it as subsisting, and in particular it does not end by reason of a separation brought about by the pressure of external circumstances such as absence on professional or business pursuits, or in search of health, or, it may be, even of pleasure. Marital intercourse, the dwelling under the same roof, society and protection, support, recognition in public and in private, correspondence during separation, making up as a whole the consortium vitae, which the old writers distinguish from the divortium a mensa et thoro, may be regarded separately as different elements, the presence or absence of which go to show more or less conclusively that the matrimonial relationship does or does not exist. The weight of each of these elements varies with the health, position in life, and all the other circumstances of the parties."

4 As indicated by the High Court, there are matters of degree of separation, and particularly in accordance with the passages I have indicated, separation by reason of illness or otherwise does not mean that the relationship has ceased.

5 This matter arises in a number of cases under the Property (Relationships) Act and occurs in the context of whether or not there have been several separate periods of relationship. This is significant sometimes because a period of relationship and a period of separation might occur before the commencement of the Act. The matter was dealt with at an early stage in George v Hibberson (1987) DFC 95-054. That was a decision of His Honour Cohen J which went on appeal to the Court of Appeal. At the trial His Honour Cohen J had the following to say, at 75,609:-

“The use of the words 'living or having lived together as husband and wife on a bona fide domestic basis' suggest a degree of permanence which will not cease merely because one party separates for the purpose of going on holidays or going on business. Nor would it cease if, after an argument, one party moved out and stayed elsewhere for a short while or went home to his or her family, if there was an intention to return and if there was a reasonable indication of that intention. See the views of the Law Reform Commission in its report at para 17.18.

It must be a question of fact whether on separation one party intended that there should be an end to the relationship or whether the parties or either of them acted in such a way as would indicate that that intention existed. Once that intention or indication is found to exist then, as occurred in McRae v McRae (1967) 68 SR (NSW) 361, the relationship will only be renewed when the parties actually return and live together. It would not be sufficient merely to form an intention to enter into an agreement to resume life together."

6 The theme which His Honour there elucidated was repeated in the words of Mahoney JA in Hibberson v George (1989) 12 Fam LR 725 at 740 where his Honour said the following:-

"It is correct that the relevant relationship may continue notwithstanding that the parties are apart, for example on holidays ... There is, of course, more to a relevant relationship than living in the same house. But there is, I think, a significant distinction between the relationship of marriage and the instant relationship. The relationship of marriage, being based in law, continues notwithstanding that all of the things for which it was created have ceased. Parties will live in the relationship of marriage notwithstanding that they are separated, without children, and without the exchange of the incidents which the relationship normally involves. The essence of the present relationship lies, not in law, but in a de facto situation. I do not mean by this that cohabitation is essential to its continuance: holidays and the like show this. But where one party determines not to 'live together' with the other and in that sense keeps apart, the relationship ceases, even though it be merely, as it was suggested in the present case, to enable the one party or the other to decide whether it should continue. The learned judge, correctly, treated the matter as a question of fact."

7 McHugh JA agreed with Mahoney JA. Hope JA said he agreed with McHugh JA so that it would seem that this expression by Mahoney JA is a considered view of the Court of Appeal.

8 Since then the matter has been considered in a number of cases. In particular, Powell JA has dealt with this on a number of occasions. In Lipman v Lipman (1989) DFC 95-068 at 75,807-8 His Honour had the following to say:-

"Although I accept that the concept of 'a de facto relationship' does not involve the notion that the parties to it must always be together under the same roof, so that such a relationship may continue to subsist notwithstanding the absence of one party from 'the matrimonial home', and although I do not discount the possibility that 'a de facto relationship' may properly be regarded as continuing notwithstanding that the parties may have separated only temporarily while they attempted to work through some difficulty which they had encountered in their relationship, I am quite unable to see how such a relationship can be said to continue in a case, such as this, in which the 'de facto husband' requires the 'de facto wife' to leave the 'matrimonial home' and installs another in her place. As Mahoney JA said in Hibberson v George 12 Fam LR at 740; DFC at 75, supra.: 'The essence of the present relationship lies, not in law, but in a de facto situation. I do not mean by this that cohabitation is essential to its continuance; holidays and the like show this. But where one party determines not to "live together" with the other and in that sense keeps apart, the relationship ceases, even though it be merely, as it was suggested in the present case, to enable the one party or the other to decide whether it should continue.' I therefore conclude that, in this case, there were two discrete 'de facto relationships'."

9 In Thomson v Badger (1989) 13 Fam LR 559, His Honour Young J had to deal with a case where, as does not infrequently happen, the relationship was one which was interrupted by absences on quite a number of occasions. His Honour referred to the cases to which I have referred and also referred to Re Australian National Railways Commission and Gerlach (1987) DFC 95-048. He used that as a reference to the fact that one must view the circumstances in which the parties ceased to live under the same roof in the context of their total relationship and he posed the question that one must ask in the context of the total relationship whether there was a mere lovers' quarrel or a termination of the relationship. His Honour looked at the case in hand and, at 563, described it as one:-

"... not being the happiest of relationships but was one which always continued on from where it left off. There was an incident, a separation, then usually a short time later the parties got back together again on the same basis as before. In my view the proper determination of the factual question raised is that there was a de facto relationship which continued ..."

10 The matter has also been again referred to by Powell JA in Theodoropoulos v Theodosiou (1995) 38 NSWLR 424, where he referred at 436, with approval, to the statement of Mahoney JA.

11 Also in Gazzard v Winders (1998) 23 Fam LR 716 Powell JA, at 719, once again quoted with approval the statement by Mahoney JA in Hibberson v George. In that case, Beazley JA, at 728, had the following comments to make about Hibberson v George:-

"I would comment in passing only that I do not endorse in any unqualified way the comments of Mahoney JA in Hibberson v George (1989) 12 Fam LR 725. For myself, I do not know that it accords either with reality or a proper construction of the Act to find that an interruption which, in a long relationship, may be no more than a hiccup, would have completely brought the relationship to an end. In any event, I can see no reason why a short interruption of the relationship for six weeks in a period of fourteen and a half years should prevent the court from taking into account the circumstance that this was a lengthy relationship of that order. Even if I am wrong, I consider ten and a half years to be a relationship of a lengthy duration."

12 In the light of those matters, I think clearly there is a strong weight of authority, which supports the view, expressed by Mahoney JA in the Court of Appeal in Hibberson v George. Of particular note is his view that:-

"... where one party determines not 'to live together' with the other and in that sense keeps apart, the relationship ceases, even though it be merely to enable the one party or the other to decide whether it should continue."

13 The qualification that perhaps emerges from what his Honour Young J was referring to in Thomson v Badger is that when one has a situation of frequent interruptions and then a return to the relationship that may, in fact, lead one, on a factual basis, to suggest that perhaps an expressed intention to leave the relationship was not the real intention and was more a pattern of behaviour. That is perhaps what Beazley JA was alluding to in her comments in Gazzard v Winders. But, in any event, she was also there more concerned with the more difficult issue as to whether the Court can take into account earlier periods of interruption to a relationship.

14 There are many things that go towards making up a relationship and the existence of a sexual relationship is only one of these matters. This is particularly so where one person is suffering from an illness. There is nothing in the evidence to suggest that the defendant intended to separate when he moved into the back bedroom. In the circumstances, I am satisfied that the relationship continued throughout this period.

The plaintiff’s property at the commencement of the relationship.

15 Prior to the commencement of the relationship, the plaintiff had lived in Tasmania. When she moved to Sydney she had furniture and personal possessions having a value of somewhere near $15,000. She also had a 1991 Toyota Camry car, which was subject to finance until she completed the pay out in June 2001 when she received a payout from a compensation claim of $32,000. She owned no real estate and had bank accounts and term deposits in the sum of $7000.

16 She arranged employment before she came to Sydney to join the defendant and this was with the Beecroft Nursing home where she had a position as a nurse. She was paid a salary of $32,000 dollars a year for the part-time position. She continued working during the period of the relationship except when she needed to take off time to look after the defendant during his illnesses.

17 Her net income during the period of the relationship was as follows.

1998 $ 6,800
1998 – 1999 $18,323
1999 – 2000 $35,891
2000 – 2001 $39,472
December 2001 $20,000
Total $120,486

The defendant’s property at the commencement of the relationship.

18 At the commencement of the relationship the defendant was living in his property at 23 Kywong Road Berowra. He purchased the property for $36,950 in 1976 aided by a loan from Westpac Bank Ltd of $16,500. That loan was paid out in 1985 before the relationship commenced. The defendant also owned a unit at 2/112 Ewos Parade Cronulla. This unit he inherited from his father in September 1996 and it was unencumbered. There is no evidence of the values of these properties at the time of the commencement of the relationship although Berowra was valued at $91,500 in 1986. In February 1998 the defendant had purchased a unit at 17/1 Rolan Court Palm Beach Queensland for $90,000. This was funded by a loan of $64,974 with the defendant contributing the balance from his savings.

19 Both the unit at Palm Beach Queensland and the unit at Cronulla were tenanted for most of the time during the relationship. The parties lived throughout the relationship in the defendant’s property at Berowra although from time to time they planned to move elsewhere.

20 The defendant owned a car worth $12,000 and furniture worth $20,000. He had $15,000 in savings in the bank and shares worth $10,000. He also had his superannuation, the details of which are not available.

21 At the commencement of the relationship the defendant was employed as a sheriff's officer in New South Wales and was in receipt of a salary of approximately $50,000 per annum. The defendant retired from his position with the New South Wales sheriff's office as a result of his ill health in May 2001. He is presently in receipt of a State Superannuation payment of $929.62 per fortnight. He has a small income from shares.

22 The defendant’s gross and net income for the years ended 30 June are as follows:

1999 $44,973 $29,861
2000 $40,486.09 $29,345
2001 $40,429 $23,689

23 Extrapolating for earlier and later periods the total net income which he would have received during the period of the relationship would be in the order of $104,692.

Property dealings during the relationship

24 The defendant sold the unit at Palm Beach in late 2001 for $105,000. The proceeds were applied, after discharging the mortgage, to reduce his debts. On 26 June 2001 he purchased a home unit at 17/8 Debban Walk Cronulla for $290,000. This purchase was funded by borrowings of $302,000 secured on the unit and also the property at Berowra. The defendant did not contribute to the purchase of this unit although she did pay $3,300 in mortgage repayments shortly after the purchase when the unit was not able to be let.

25 There were renovations to Berowra which were the addition of an extra room that was to be a home office and the installation of a verandah. The defendant paid for these extensions as he did in respect of the costs involved in the replacement of the boundary fences.

The plaintiff’s property at the conclusion of the relationship.

26 At the conclusion of the relationship the plaintiff had no real property but she had furniture that is now in storage in Tasmania which is insured for $30,000. She still has her car which is insured for $4,400. She presently has $420 in the bank. She recently moved to Tasmania and still has employment with the security firm who employed her in Sydney. She has a superannuation entitlement with that firm which is worth between $30,000 and $40,000.

The defendant’s property at the conclusion of the relationship

27 At the conclusion of the relationship the defendant retained his property at Berowra then worth $360,000. He also still retained the two units at Cronulla. Ewos Parade was valued at $360,000 and Debban Walk was valued at $305,000. His properties were subject to mortgages used, inter alia, to fund the purchase of the last unit totalling $353,000. His small quantity of shares was worth $500, his car was worth $2,000 and his furniture was worth $10,000. His superannuation was in an amount of between $290,00 and $300,000. He had a business operated by his company Cool Cats Sports Equipment and Investment Pty Ltd. The company manages his investment properties and share portfolio, designs and screen prints various articles, deals with other matters in the entertainment industry and apparently distributes books in Australia. The defendant operates the company by himself and employs some casual employees from time to time. There is no evidence of the worth of that company and no income tax returns have been prepared for the last two years. Although it may have received some income there is nothing to show that it has made any profits.

28 At the time of the hearing the Berowra property was agreed to have a value of $410,000 and the Ewos Parade unit was agreed to have a value of $405,000. The defendant sold the Debban walk unit in October 2002 for $330,000 and the proceeds were applied to reduce his mortgages. He presently owes $28,489.59.

Contributions by the plaintiff during the relationship

29 The plaintiff alleges contributions in a number of different ways. There were contributions by way of repairs and renovations to the property at Berowra, contributions by way of maintenance and cleaning of the units and contributions as a homemaker. These contributions as a homemaker were by way of contribution to household expenses as well as non-financial contributions. Before I turn to the different contributions I need to deal with matters affecting the credit of the parties.

Credit of the parties

30 In her principal affidavit the plaintiff presented a picture of having previously owned a number of properties in Tasmania and Queensland and, indeed, continuing to own some until the year 2000. She said she was in charge of Quintex’s entire contract operations having been head-hunted by Christopher Skase. She painted a picture of later being in litigation against him after the collapse of Quintex and having had extensive expenses in that regard which reduced her situation to that which she found herself in at the commencement of these proceedings.

31 A few days before the hearing of the proceedings commenced, and after the plaintiff had filed her evidence in reply, the defendant served affidavits, as a result of the issue of subpoenas by them, to the firms of solicitors and legal representatives said to be involved in the plaintiff’s earlier proceedings. These affidavits disclosed that there had never been the contact alleged by the plaintiff with those legal representatives. When the hearing commenced, those parts of the plaintiff’s affidavits, which dealt with these matters, were not read and she admitted, although after being warned, that those parts of the affidavits were false. The plaintiff’s explanation was that when she met the defendant she engaged in a deception in which she tried to paint herself as a wealthy woman. She said she felt constrained to continue the deception.

32 There was an affidavit of discovery sworn to by the plaintiff in which she referred to a number of letters from solicitors. These letters were completely false and were concocted by her in order to improve her case and substantiate the story that she had put forward in her affidavit. The letters contained self-serving statements she obviously thought would assist her case in these proceedings. She probably did not realise it at the time but in fact most of the matters that she put forward were probably quite irrelevant to the court's consideration of the claim.

33 Most of the material in the present case is not contentious except in relation to some of the contributions by the plaintiff. Accordingly although the plaintiff has made a clean breast of her dishonesty I will still have to treat her evidence with some reserve and require corroboration on essential aspects.

34 The defendant in his evidence before me presented as a careful witness. He made concessions when necessary and I accept him as a reliable witness.

The legal effect of the plaintiff's conduct.

35 There were submissions that the conduct of the plaintiff in falsifying her evidence was such as to disentitle her from relief. These submissions noted that the equitable defence of clean hands does not apply to a right given by a statute. Reference was made to in Re the Will of Gilbert (1946) [1946] NSWStRp 24; 46 S. R. (NSW) 318. These submissions referred to the difficulty that a court has when there has been a misstatement of assets and, in particular, the duty that is said to apply in matters of this nature.

36 The Family Court of Australia has consistently held that there is a clear obligation as a party to proceedings in that court to make a full and frank disclosure of all relevant financial circumstances. See Oriolo ( 1985) FLC 91-653, Briese (1986) FLC 91-713 at 75,181, Stein [1986] FamCA 27; (1986) FLC 91-779 at 75676-7 and Suiker v Suiker (1993) FLC 92-436 The Court has adopted what was said by Lord Brandon for the House of Lords in Livesey v Jenkins [1984] UKHL 3; (1985) AC 424 at 437:-

"I stated earlier that, unless a court is provided with correct, complete and up-to-date information on the matters to which, under section 25(1), it is required to have regard, it cannot lawfully or properly exercise its discretion in the manner ordained by that subsection. It follows necessarily from this that each party concerned in claims for financial provision and property adjustment (or other forms of ancillary relief not material in the present case) owes a duty to the court to make full and frank disclosure of all material facts to the other party and the court. This principle of full and frank disclosure in proceedings of this kind has long been recognised and enforced as a matter of practice. The legal basis of that principle, and the justification for it, are to be found in the statutory provisions to which I have referred."

37 These comments are appropriate to these proceedings under the De Facto Relationships Act. A similar approach has been adopted in Family Provision Act cases. See Stewart v. McDougall Unrep, Young J. 19 November, 1987.

38 The submissions then referred to the duty of the court under section 20 of the Act to make such an order adjusting interests of the parties’ in the property as it seems “just and equitable” having regard to certain factors. It was said that, by analogy, the court could not make a just and equitable order where the plaintiff had engaged in deception. That submission ignores the remedies that are available for a court where there has been an improper disclosure. These include:

(a) use of the principle in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 to draw inferences on any topic concerning which a party has failed to call evidence, namely, that the parties case would not have been assisted by the evidence if it had been called.

(b) to make findings that the value of an item of which a party has not adequately established the value is as high a value as is possible consistently with the description which the court has of the asset; see Armory v Delamirie (1722) 1 Stra 505.

39 The principles as to proper disclosure of assets are of course very important and need to be observed for the court to exercise its discretion. In the present case there has been no misleading of the court because, by not reading relevant paragraphs of her affidavits and admitting to their falsity, the plaintiff corrected her situation. Although submissions were made about the deliberate attempt to improve her case by giving the false evidence, even if there were finding of such deliberate intent, it does not affect the outcome of the court's deliberations. In my view, in the circumstances of this case the court is not entitled to refuse relief because of the deception to which I have referred.

Contributions to the property at Berowra.

40 It is clear from photos in evidence that the property had an overgrown garden and fences were in a poor condition. The plaintiff in her affidavit said that she made the following contributions by cleaning up the Berowra property.

1. She cleaned the house from ‘top to bottom’. It was in dire need of attention to cleaning. The defendant had lived there alone since 1988 after a previous de facto relationship had ended;
2. She removed the existing tiles from and retiled both bathrooms.
3. She pulled up the carpet in the property and punched in the nails on the floorboards, filled them with putty and lightly sanded the floorboards. She then polished them with wax to a high sheen.
4. She painted the inside and outside of the home first preparing all surfaces.
5. She arranged for the drawing up of plans and then the building of an additional room to serve as an office for the defendant and herself.
6. She pulled down all of the fences on the property and arranged for a contractor to replace the fences. She paid for some of the costs of the fencing contractor.
7. She laid paving around the property.
8. She disposed of rubbish that had accumulated over the period of the defendant’s occupation of the property.

41 There was criticism of some of tiling work in that the plaintiff laid tiles over the old tiles in the bathrooms. The photographs which are in evidence of the house before the work and afterwards show a substantial improvement to the property in terms of its appearance. Having regard to the defendant’s concessions and the other evidence of persons who saw the plaintiff carry out this work, I have no doubt that she did a substantial amount of heavy work in the way that she has described. As I have mentioned, the builder was paid by the defendant for the alterations but the plaintiff paid for a number of things herself in the general improvements around the house

Unfortunately, in this case there was no valuation evidence which would show the increase in value of the property which would be attributable to this work on the plaintiff’s part. This is surprising since such evidence is normally available and its absence means that it is extremely difficult for the court to assess the contribution to the property as a result of one party's labours. This is particularly important in a case such as the present where the plaintiff has not contributed to the capital cost of the property in question.

Contributions to the Queensland unit

42 This unit was purchased just before the relationship commenced and it seems clear that the plaintiff flew to Queensland to clean the unit on three occasions after the tenants had left. The type of work done by the plaintiff in this regard was making arrangements for the cleaning and the removal of rubbish and organising for the unit to be painted. The plaintiff claimed that she spent $2,066.49 in respect of these matters and, given that she has proved some of it by cheque butts, I will accept her evidence in this regard.

Contributions to Ewos Parade, Cronulla

43 On several occasions after tenants moved out, the plaintiff would spend time cleaning the units. On one occasion, she spent two days re-painting the unit while the defendant spent his time surfing. I mention this as it illustrates the difficulties that the defendant was having at the time and how the plaintiff did work which the defendant was not capable of doing because of his illness. At one stage they both contemplated living in this unit and they made some alterations such as installing ceiling fans in preparation for this event. Ultimately, they did not live in it as the garage was too small for their cars.

Contributions to Debban Walk, Cronulla

44 Once they found that they could not fit their cars into the Ewos Parade unit they looked for another unit to purchase in Cronulla. This unit was purchased in the defendant’s name and the funds for its purchase were borrowed by the defendant. The plaintiff spent some time buying items of furniture for the unit. As I have mentioned, she spent $3,350 as a contribution towards the mortgage on the property. It was at the time of the purchase of this unit that the plaintiff received her payout of $32,000 as a result of her Workers Compensation claim. She used some funds to pay out her loan on her car in the sum of $3,000, she bought shares in Telstra and the King Island Company and she put $10,000 into her superannuation fund. She spent some money on furniture for the new property at Cronulla but the quantification of this is not satisfactorily proved.

Homemaker contributions

45 I will first deal with the financial contributions in respect of the homemaker role and also the general contributions to the parties’ home expenses. In this matter, the defendant had a number of different loans during the relationship as a result of both the improvements to the Berowra property and the purchase of units. One can expect that in respect to the Queensland unit the repayments were mostly met by rental received in respect of the unit. In addition, the other rented units produced income which was used to make loan repayments. The plaintiff asserted that she used the whole of her income, except for an identified $4,800 towards the general expenses of the household. Because of the different obligations which each party had, it is impossible to try and accurately apportion how they spent their income in maintaining the house and in paying off the mortgages. It is apparent, that after separation when the defendant no longer had the assistance of the plaintiff's income he started to get into financial difficulties and eventually had to sell one unit and borrow from his superannuation to pay off his debts.

46 There are the contributions that each party made to the combined pool necessary to meet their living expenses and the mortgage repayment shortfalls on all properties. It can be seen from a comparison of the income of the parties that the plaintiff contributed a greater share in this respect than the defendant. Accordingly, the plaintiff should be given some credit for this. She thus contributed some amount to the repayment of the mortgages on the properties but it is impossible to quantify, because the evidence is to simply not available, whether the contribution led to any substantial reduction in the principal sums outstanding on the mortgages. Given the shortness of the period for which most of the money was borrowed it is doubtful whether there would have been much contribution in this regard.

47 The other major area of contributions apart from her ordinary homemaker contributions are related to the care which the plaintiff gave to the defendant during his illness from late 1999 until May 2001. The plaintiff changed her occupation and began working in the security industry on shift work. Thus she could stop work or, alternatively, take night shifts so that she could be with the plaintiff during the daytime. A part of the defendant's problem with his breakdown was that he became acutely anxious and could not be left alone. The plaintiff's estimate is that she lost approximately 733 hours from work during the time of the defendant’s breakdown and 79 hours during the defendant's hip replacement operation. That effectively amounted to a reduction in her salary of some $23,000.

48 I am satisfied, having regard to the fact that the defendant conceded that she had assisted during the period of the relationship that there was substantial contributions by the plaintiff to the defendant.

Discussions of principles be applied

49 This case is one where the relationship was of only four years’ duration. The real estate was purchased by the defendant in his name and at the commencement of the relationship two of the pieces of real estate which were owned by him un-encumbered. The plaintiff contributed nothing to the purchase of the other properties except by contributions over a short period towards repayment of the mortgages. The properties have increased substantially in value over the period between the commencement of the relationship and the end of the relationship. In respect of only one of these properties, namely, Berowra, was there any work done on the property which would have increased its value. Unfortunately, the evidence does not indicate anything which would allow me to quantify that increase in value.

50 It was suggested that I should have regard to the fact that the plaintiff has received substantial advantages in that she has been able to live in the defendant's home throughout period of the relationship and not pay rent. There is no evidence of the rent that could be obtained from the property at Berowra nor any evidence of the rent she was paying in Tasmania before she came to Sydney to commence the relationship. Although this was a matter of the parties’ choice to live together at Berowra, the provision of this accommodation was a benefit received by the plaintiff and, according to the authorities, should be taken into account. See De Gallo v Fredrikson (2000) [2000] NSWCA 293; 27 Fam LR 162 Heydon JA at 173-4. and Zwernemann v Conatty Bergin J 13 April 1999 at para 87 – 89. However, in the absence of the relevant evidence I cannot give much weight to this factor.

51 This is not a case where I should grant to the plaintiff something of the increase in value of the properties of the defendant because she has carried out a homemaker role in order to allow him to go out and earn the money to purchase real estate which increased in value over time. They were only together a few years when they made contributions to maintaining the mortgages and only one property in respect of which there was some improvement which would have reflected this in value. Accordingly, it is probably not appropriate to take a holistic approach in this case. Obviously, the contributions as a homemaker in looking after the defendant are important as is the slightly greater financial contribution by the plaintiff over that of the defendant during the period of the relationship. In the circumstances, an appropriate order for adjustment in favour of the plaintiff is a sum of $75,000.

52 I order that the defendant pay to the plaintiff $75,000 within 60 days of today’s date. Subject to submissions, I order the defendant to pay the plaintiff’s costs.
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LAST UPDATED: 28/04/2003