Arachchige v Dixon - [2006] TASSC 16

[2006] TASSC 16

CITATION: Arachchige v Dixon [2006] TASSC 16

PARTIES:  ARACHCHIGE, Anzhela Peduru
  v
  DIXON, John Frederick

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M7/2005
DELIVERED ON:  3 April 2006
DELIVERED AT:  Hobart
HEARING DATE:  29, 30 November, 1, 12 – 14 December 2005
JUDGMENT OF:  Tennent J

CATCHWORDS:

Family Law and Child Welfare – De facto relationships – Adjustment of property interests – Relevant considerations – Just and equitable.

Relationships Act2003 (Tas), ss36, 40, 47.

Family Law Act1975 (Cth), ss75(2), 79(4)(e).
Williams v Williams (1984) FLC ¶91-541, referred to.

Aust Dig [496]

REPRESENTATION:

Counsel:
             Applicant:  W A Ayliffe
             Respondent:  D Crampton
Solicitors:
             Applicant:  Doolan & Brothers
             Respondent:  Levis Stace & Cooper

Judgment Number: [2006] TASSC 16
Number of paragraphs: 202

Serial No 16/2006
File No M7/2005

ANZHELA PEDURU ARACHCHIGE v JOHN FREDERICK DIXON

REASONS FOR JUDGMENT TENNENT J

3 April 2006

The applicant seeks an order adjusting interests in property as between her and the respondent pursuant to the Relationships Act 2003 ("the Act").

Relevant legislation

The Act, s36, provides that a party to a significant relationship may apply to the Court for an adjustment of interests in property.

A significant relationship is defined by the Act, s4, to be a relationship between two adult persons who have a relationship as a couple and who are not married. Where such a relationship is not registered under the Act, the Court, in determining whether a significant relationship exists, is to take into account all the circumstances of the relationship, including such of the factors listed as may be relevant. Those factors are:

-          the duration of the relationship;
-          the nature and extent of a common residence;
-          whether or not a sexual relationship exists;
-the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties;

-          the ownership, use and acquisition of property;
-          the degree of mutual commitment to a shared life;
-          the care and support of children;
-          the performance of household duties; and
-          the reputation and public aspects of the relationship.

The Act, s40, provides that the Court, on an application for adjustment of interests in property, may make any order it considers just and equitable having regard to five factors. These are set out in subs(1) as follows:

"40    (1)     …
(a)     the financial and non-financial contributions made directly or indirectly by or on behalf of either or both of the partners to the acquisition, conservation or improvement of any of the property; and
(b)     the financial resources of either or both of the partners; and
(c)     the contributions, including any contributions made in the capacity of homemaker or parent, made by a partner to the welfare of the other partner or to the welfare of the family constituted by the partners and one or more of –
(i)     a child of the partners; or
(ii)     a child accepted by either or both the partners into the household of the partners, whether or not the child is a child of either of the partners; and

(d) the nature and duration of the relationship; and
(e) any relevant matter mentioned in section 47."

The Act, s47, provides as follows:

"47    (1)     On an application by a partner for an order for maintenance, a court may make the order if satisfied that the applicant is unable to support himself or herself adequately because –
(a)     the partner's earning capacity has been adversely affected by the circumstances of the personal relationship; or
(b)     of any other reason arising in whole or in part from the circumstances of the personal relationship.
(2)     In determining whether to make the order and in fixing any amount to be paid under the order, a court is to have regard to the following:
(a)     the income, property and financial resources of each partner (including the rate of any pension, allowance or benefit paid, payable or entitled to be paid to either partner) and the physical and mental capacity of each partner for appropriate gainful employment;
(b)     the financial needs and obligations of each partner;
(c)     the responsibilities of either partner to support any other person;
(d) the terms of any order made or proposed to be made under section 40;
(e)     any payments provided for the maintenance of a child in the care and control of either partner;
(f)     whether either partner has the care and control of a child of the partner who is under 18;
(g)     the age and state of health of each partner;
(h)     the standard of living that is reasonable for each partner in all the circumstances;
(i)     the extent to which the payment of maintenance to the partner whose maintenance is under consideration would increase the earning capacity of the partner by enabling the partner –
(i)to undertake a course of education or training; or
(ii)to establish a business; or
(iii)otherwise to obtain adequate income;

(j)     the extent to which the partner whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other partner;
(k)     the length of the personal relationship;
(l)     the extent to which the personal relationship has affected the earning capacity of the partner whose maintenance is under consideration;
(m)    any other fact or circumstances the court considers relevant."

Form of evidence

Subject to some qualifications and deletions, each party read into evidence a number of affidavits. Some of the deponents also gave oral evidence by way of additional evidence-in-chief and cross-examination. The Court was also provided with numerous documents by each party, many of which were never specifically referred to nor explained in oral evidence.

Credit of witnesses

The credit of some witnesses in this trial was in issue. This was most particularly so in relation to the respondent because of the conflict between his counsel's concession about the nature of the parties' relationship at the commencement of the hearing and the content of his affidavit material. For that reason I make the following general findings as to credit.

I found the applicant generally to be a truthful witness. She was rarely successfully challenged in cross-examination and conceded matters where clearly necessary.

As to the respondent, for the most part, unless his evidence was corroborated by another witness or unchallenged documentary evidence or his evidence was uncontroversial, I have not accepted it where it was contrary to that of the applicant or her witnesses. I have also generally treated the respondent's evidence with caution. His counsel read into evidence an affidavit sworn by him on 13 May 2005. The statements in that as to the nature of the parties' relationship were inconsistent with the concession of his counsel at the start of the trial. In his oral evidence he was evasive and non-responsive to questions asked in cross-examination. When cross-examined, he was forced to admit that some things he told the Court in his oral evidence were not true and that material in his affidavits was also not true. He maintained positions about events which were at times inherently implausible. His grasp of his own affairs was poor and he appeared to have made little effort to ensure he had that grasp for the purpose of the trial and to put accurate material before the Court.

A former wife of the respondent, Mrs Leakhana Dixon, was also economical with the truth, admitting that she had given a false date of separation in a document relating to the settlement of her property dispute with the respondent. Mr Dixon Senior, the respondent's father, was a difficult witness. His grasp of facts when unassisted by documents was tenuous. He refused to concede even the obvious content of documents put to him which he admitted signing. He gave the clear impression that his primary focus was helping his son regardless of what the truth of the matter might be.

When was there a significant relationship between the parties

The applicant alleged that there had been a significant relationship within the meaning of the Act between her and the respondent between May/June 1999 and February 2005. Up to the commencement of the trial, the respondent's position was that there had never been a significant relationship between the parties although he conceded they had a child. The affidavits which he had sworn for the purpose of the proceedings and which his counsel ultimately read into evidence as part of his case were to that effect. However, at the commencement of the hearing, the respondent's counsel conceded that there had been a significant relationship between the parties between October 1999 and October 2000 and then between January 2002 and December 2004.

Despite the concession made by counsel for the respondent at the commencement of the trial as to the existence of a significant relationship between the parties over certain periods, the case put by the respondent was at all times directed towards suggesting there was no such relationship and/or trying to undermine the nature and duration of what relationship he acknowledged. While it may have been simpler to accept the concession and then make no further reference to the nature of the relationship, the way in which the parties conducted their cases made that impossible. It has been necessary to make findings about the periods during which a significant relationship existed before it has been possible to apply the provisions of the Act.

The applicant was born on 16 May 1970 and was 35 years old at the time of the hearing. She is a general medical practitioner, practising in partnership with other doctors at Shearwater. She has lived in Australia since March 2001. She is a Sri Lankan citizen. She has 2 children, Nilan Arachchige aged 12, a child by her estranged husband and Kristina Jessica Dixon, aged 5, a child by the respondent, both of whom live with her. The applicant married a Sri Lankan citizen in 1991 and they have not divorced.

The respondent was born on 30 March 1947 and was aged 58 at the time of the hearing. He and the applicant never married. He has, however, been married three times, twice before his relationship with the applicant and once since. He married his present wife in May 2005. He lives with her in Nairobi. He holds a relatively senior position with the United Nations ("UN"). He has two children by his second wife, Ms Leakhana Dixon. They are Jacqueline, aged 10, and Steven, aged 7, who live with their mother at Spreyton.

The relationship between the applicant and respondent

The relationship of the parties could be identified by reference to several periods. These were:

·February to September 1999.
·September 1999 to October 2000.
·October 2000 to March 2001.
·April 2001 to January 2002.
·January 2002 to January 2005.

February to September 1999

The parties met when they were working in Sri Lanka in February 1999. Both were married at the time. The respondent's wife and children were living in Tasmania and the respondent returned to them during periods of leave. The applicant and her husband were separated and living and working in different parts of Sri Lanka. Their son Nilan was living with, and being cared for by, grandparents.

The applicant was living with other UN employees in a compound. The respondent was living in his office nearby. The applicant said she and the respondent began going out together as a couple and also began a sexual relationship from not long after they met. She said the relationship became serious and they were in love. She produced some love poems the respondent wrote to her in April/May 1999. She said he told her he was separating from his Cambodian-born wife and was just waiting out the 12-month period of separation before divorcing her. She said he proposed marriage in June 1999 and suggested she consider moving to Tasmania to practise where he could retire and they could live together. At about that time the parties moved in together and lived together as man and wife in the respondent's office.

In his evidence, the respondent admitted to meeting the applicant and commencing an occasional sexual relationship with her. He categorised it as an affair. He denied telling her what she asserted about his wife and denied asking her to marry him. He denied they lived together as man and wife in his office from June to September 1999.

The applicant gave evidence that in the middle of 1999 the respondent lent her and her husband $10,000 to assist with the purchase of a home. When discussions about this had started earlier, the parties were just friends and the applicant said she still had some hope for her marriage. However by the time the loan was made, she had begun to live with the respondent and he had suggested they might be able to use the loan as a lever to get the applicant's husband to let her go to Australia with her son. The applicant denied that in late 1999 she was continuing to sleep with her husband. She agreed she returned to the house that had been purchased where her mother was caring for her son and she agreed the respondent returned on leave to his family in Australia.

The applicant agreed that between June and September 1999, she maintained her own UN accommodation, she still had belongings there and that at times, while she stayed overnight with the respondent, he took her back to her own place in the mornings. She also at one point in her evidence said that, prior to the respondent renting a house in September, she lived in his office for a few weeks permanently.

During this same period, that is more precisely between June and September, the respondent also told the applicant that his general practitioner in Tasmania, Dr Poole, needed trained doctors and would be interested in employing her.

There was no evidence the parties had any financial interrelationship at this time or that they acquired any property.

I am satisfied that, during this period, the respondent may very well have told the applicant what she said he did about the state of his marriage and that he proposed marriage. However I am equally satisfied that at the time he was misleading her. The evidence of the respondent's then wife would suggest that, as far as she was concerned, she still had a marriage and there were no plans for any divorce.

The relationship between the parties for most of this period was clearly a sexual one. From June to September, I accept that the parties spent many nights together and that the respondent was making promises of a future. Given the size of the UN community, no doubt others knew of this relationship. There were, however, few, if any, of the indicia of a significant relationship as they are set out in the Act and I am not satisfied that the relationship was other than an intense sexual one at that time. I am not satisfied there was a significant relationship within the meaning of the Act during this period.

September 1999 to October 2000

In September 1999, the respondent rented a house in Jaffna where the parties were both working. He and the applicant and another UN worker moved in. The applicant told the Court she and the respondent shared a room in this house, effectively living as husband and wife, from when they moved in until October 2000. The respondent, in his affidavit sworn 13 May 2005, described the relationship in the following terms

"In approximately September 1999 the Applicant and I started having regular sexual intercourse. We did not however live as man and wife. There was no public face to our relationship. There was no intermingling of our financial affairs or joint acquisition of assets. There was a curfew in Jaffna where we were required to be indoors by 7.30pm each evening. I socialised generally with the approximately 18 UN staff in Jaffna."

Throughout that affidavit the respondent characterised his relationship with the applicant in this period as basically a sexual one. He made no reference to sharing a room and bed with the applicant, only doing so in a later affidavit in reply.

The applicant became pregnant in March 2000 with the respondent's child. She described that as being the result of a mutual decision. Late in 1999 the respondent had been diagnosed with prostate cancer. The applicant said he was concerned he might not be able to have further children. He also told her that his wife was moving to Cambodia with their children and he might never see them again. They talked about having a child and began trying. The respondent's description of what led to the pregnancy implied he was little more than a sperm donor at the applicant's insistence. I do not accept his evidence and I accept that of the applicant.

In May 2000 the applicant came to Australia to sit an Australian Medical Council ("the AMC") examination with a view to moving to Australia to practise as a doctor. The respondent wrote to the AMC by letter dated 25 January 2000 and attached a form he completed. He paid for the examination entrance fee, he gave the applicant's address as care of himself and he advised that the applicant would be staying with his parents.

While I accept that the parties did not again have any financial interrelationship in this period and acquired no property together, they were, I am satisfied, a couple looking to make a future together. If a finding is required, given the concession by the respondent's counsel, I am satisfied that the parties were in a significant relationship in this period within the meaning of the Act.

October 2000 to March 2001

The respondent denied there was any significant relationship with the applicant in this period. They certainly did not live together. In about October 2000 the applicant's position with the UN ended. She returned to live in a house she and her husband had purchased in 1999 with the help of the respondent. The applicant denied she lived there with her husband.

The applicant's child by the respondent was born on 22 November 2000 in Colombo. By letter dated 12 December 2000, the respondent wrote to the Registrar of Births placing himself on record as the child's father.

The applicant told the Court that the respondent was anxious for her, Kristina and Nilan to move to Australia and that he proposed he sponsor her as his de facto spouse. She said she refused, as she wanted to travel on her own account as a qualified professional and that she would wait for her own visa to come through. The respondent denied this. The respondent said that after the applicant returned to live in Colombo, he only spoke to her a few times by telephone and met her twice in Colombo, once in a coffee shop and once when they went to the High Commission to organise Australian citizenship for Kristina. If regard is had to the tenor of his affidavit sworn 13 May 2005, pars10, 11 and 12, there was minimal contact between the parties in this period and no relationship.

The position taken by the respondent was plainly nonsense. The applicant produced copies of emails which passed between her and the respondent. There was no attempt by the respondent to deny he wrote them or that he styled himself "foxy" in them. As examples, the respondent wrote:

·on 9 January 2001 in response to an email sent by the applicant:
"I will try and find a teacher re nilans books and contact immigration today for you. I will call today or tomorrow after mum and dad leave missing you like crazy all my love foxy."

·on 14 February 2001:
"my dearest angela,
well happy valentines day darling I just wish I was there to give it to you personally. Anyway here's hoping this will be the last one apart. Re school, I spoke with the principal yesterday, she will fit nilan in to cater for his strengths, probably in grade three or four and subjects covered are painting, English arithmetic basis maths, history geography, writing sport music and a choice of subjects that suit his personality. …. mom is in town making bookings to go to Cambodia, don't know if for good or just for a few months. She hasn't said and I don't care, for good is better though. I will be looking after the kids which suits me just fine. Angie, you must know I am with you 24 hours a day morning and night, I just have you constantly on my mind and can't get you out of it, not that I am trying to either mind you. I really am just looking forward to the time we are together again.

All my love
foxy."
·later on 14 February 2001, again expressing his love;
·on 8 March 2001:
"… re booking to come here I am absolutely delighted you finally have the visa. mom leaves on 14 march for 3 to ??? months. My parents arrive on 24^th for ??? amount of time. You can come whenever you wish, for me the sooner the better but I would suggest any time after 15march to avoid any problems as I am sure the scene at the airport with the kids is going to be quite emotional for them all. Not sure if or when she will return and we can discuss our options when you get here. Re goods, I would pack all that you want, including any books you want and give them to vilma at unhcr to include with my other packages, tell her they are some of my effects I left with you for safe keeping. I will email her and tell her the same. I have not decided when to send the consignment here yet as I was basically waiting to see where I would be posted next …. please send an email to bruce poole and let him know you have your visa and will be making travel plans in next few days. Can you tell me how long it-the visa- is current for, is it multiple entry and when do you have to be in Australia by. I will also contact a travel agent here and get a quote on tickets for you, nilan and krissy from this end. They can be left at the airport for you to pick up or at nominated travel agent in Colombo if we go down that route. I think it will probably take about a week or two for you to get you things organised there assuming you don’t have any problems with janaka and we will plan a departure date when I next talk to you – I can't wait to see you. Will try and call again this evening or tomorrow if no go.
All my love foxy.
Kiss krissy for me."

The applicant arrived in Australia with her two children in March 2001. She was collected from the airport by the respondent, who took her to his home at 188 Milldam Road, Port Sorell. His parents were staying with him. His children were also there, although his wife had gone. At the respondent's request, the applicant and her children stayed in a flat attached to the house. The applicant told the Court that it became apparent that the respondent's parents did not know the child Kristina was the respondent's child or that the parties had plans to marry.

Approximately two weeks after the applicant arrived, the respondent's wife returned to the property at Milldam Road. The applicant said the respondent's wife tried to portray the situation as normal. The applicant found the situation in which she had been placed intolerable and arranged alternative accommodation for herself and her children in a rented home.

I am satisfied the relationship between the parties during this period, while one in which the parties had little physical contact, was a significant relationship within the meaning of the Act. The birth of the parties' child, the steps by the respondent to register the child as his and to ensure the child had Australian citizenship, the email exchange between the parties and the steps taken by the respondent to have the applicant and her children in Tasmania, all demonstrate a commitment to a loving and committed relationship between the parties which was ongoing and which was moving towards the parties living together again in Tasmania.

April 2001 to January 2002

I am satisfied the parties did not live together as such during most of this period for various reasons. The applicant and her children lived in rented accommodation at Freer Street, Shearwater from April 2001 to July 2001, in a house at 2 Clare Court, Devonport ("Clare Court") from July 2001 to September 2001, in a rented apartment at Shearwater from September to October 2001 and at the home of a friend at Port Sorell from October to November 2001. On 6 November she moved into the home of the respondent at 188 Milldam Road, Port Sorell ("Milldam Road").

The respondent was out of the country for work from 15 July to 20 September 2001 and from 2 October 2001 to 20 January 2002.

The applicant said that after she left Milldam Road in April 2001 and moved to Freer Street, the respondent visited her every day asking her to forgive him for the situation he had placed her in. She said he asked her to give him time to sort out his affairs with his wife and pleaded with her not to end their relationship when she proposed she do so. She said he stayed with her regularly at Freer Street. She said in oral evidence that he effectively moved in with her for the whole of the last few weeks she was at Freer Street.

In his affidavit sworn 13 May 2005, the respondent denied that he lived with the applicant at all during this period. He asserted that he lived at Milldam Road when not overseas and that while he visited the applicant at times at the addresses where she lived, he did not ever stay overnight with her. He denied there was any sort of relationship with her in this period.

He also asserted that at about the end of October 2001, coincidentally when he had just completed a property settlement with his wife which resulted in her moving out of Milldam Road, the applicant contacted him and asked if she could move into Milldam Road. He agreed that she could move in there as a tenant and he had her sign a tenancy agreement. She then moved in and remained there until early 2005 as a tenant only. The respondent asserted that any nights he spent at Milldam Road during this period were pursuant to an arrangement between he and the applicant as landlord and tenant. He further asserted that he gave her notice to quit in 2005 and that she refused to move out.

Since the parties are at odds over the issue of whether there was a continuing significant relationship between them, it is useful to look at some events which occurred which might provide support for one or other version of events.

·On 23 April 2001 the respondent executed a will. By that will the applicant was appointed the default trustee in the event that the respondent's father and brother either predeceased him or were unable or unwilling to act as such. He also bequeathed the proceeds of a life insurance policy to the applicant and left the residue of his estate to be divided between his then wife and three children, which included his child by the applicant, Kristina.
·April 2001 - The respondent and the applicant were found by the respondent's then wife walking on the local beach with their children. While the wife maintained in evidence that her relationship with the respondent was ongoing at that point and after, she shortly after that moved to rental accommodation in Hobart for some 6 weeks.
·On 30 May 2001 Foxyangel Holdings Pty Ltd ("the company") was incorporated. The name arose from a combination of the nickname of the respondent, Foxy, and the name of the applicant, Angela. The 1,000 issued shares were transferred to the names of the applicant and the respondent as to 500 each on 4 June 2001. On 12 July 2001, half of the applicant's shares were transferred to the respondent's mother and half of the respondent's shares were transferred to his father. The sole directors from 4 June 2001 to 12 July 2001 were the applicant and respondent. The respondent's father became a director as well on 12 July 2001, but ceased to be one on 4 February 2002.
·On 4 June 2001, two discretionary trusts were set up. These were A & J 1 Discretionary Trust ("the family trust") and A & J 2 Discretionary Trust. Both had the company as trustee, the parties as appointor and the parties as specified beneficiaries. One had the children Jacqueline, Steven and Kristina as additional beneficiaries, while the other had those children and the applicant's son Nilan as the additional beneficiaries.
·In June 2001, the respondent entered into a contract to purchase Clare Court, the purchase to be completed in the name of himself or his nominee. He nominated the company as trustee of the family trust. The purchase was completed on 13 July 2001 with the title in the name of the company and a mortgage to the St George Bank.
·On 11 July 2001, the respondent sent an email to his Tasmanian solicitors in which he set out material to support an application by the applicant's mother for a visa to enter Australia and help care for Nilan and Kristina. In that he described the applicant as his partner, he said they would be moving into Clare Court, with the intention of living there, and at length he set out the need for the applicant's mother to be able to come to Tasmania to support the family unit.
·On 14 July 2001, the applicant and her children moved to live at Clare Court (that is the day after completion of the purchase). The respondent was found at the home at about 1am the next morning. He maintained he was there simply because he could not find a hotel. I do not accept that explanation.
·The respondent returned to work in Sri Lanka on 15 July 2001.
·On 17 July 2001, the respondent sent an email and a letter of support in relation to the same visa application to immigration lawyers in Melbourne. Again he described himself as the applicant's partner.
·On 23 July 2001, the respondent sent an email to his solicitors, copy to the applicant, instructing them to transfer the property at Milldam Road and another property he had at Beechworth in Victoria to the trust which held Clare Court and advising that the applicant or his father could sign transfer documents.
·On 1 August 2001, the respondent sent an email to his solicitors relating to matrimonial property settlement negotiations with his then wife in response to one from them on the same day. The email detailed what he was prepared to agree to. A copy of both emails was sent to the applicant.
·On 4 August 2001, the respondent wrote to the Vanuatu Consulate making enquiries about residence there. In that letter he described the applicant as his partner and referred to her living with "our children" in "our own home at 2 Clare Court, Devonport".
·On 5 August 2001, the respondent wrote to an immigration lawyer in Hobart about the visa situation of the applicant, whom he described as his partner.
·On 25 August 2001, the respondent sent an email to his matrimonial solicitor in relation to ongoing settlement negotiations with his wife, with a copy to the applicant.
·On 30 August 2001, the respondent wrote to his solicitors, copy to the applicant, seeking advice about the possible impact on financial matters were the applicant's husband to come to Australia after he and the applicant moved in together. He asked for any reply to be copied to the applicant.
·On 19 September 2001, the respondent's matrimonial solicitors sent an email to the respondent confirming property settlement orders had been made. As a result of those orders, the respondent's wife was to vacate the Milldam Road property. The email set out that they had discussed certain aspects of the respondent's financial affairs with the applicant and had sent her a copy of the email so she could discuss its contents with him.
·The respondent came back to Tasmania on leave on 20 September 2001.
·The applicant moved from Clare Court to rented accommodation at Shearwater.
·Shortly thereafter, the respondent's parents arrived in Tasmania having sold their home near Gosford in New South Wales. They moved into Clare Court.
·On 1 October 2001, a contract of sale in respect of Clare Court was entered into between the company and the respondent's parents in the sum of $380,000. The completion date was to be 5 October 2001.
·On 3 October 2001, the respondent executed an enduring power of attorney appointing his father and the applicant attorneys to act jointly and severally in his affairs.
·On 2 November 2001, the respondent's solicitors sent to the applicant a proposed cohabitation agreement. In that agreement it was recited that the parties resided together in Sri Lanka, but had then commenced residing together in Tasmania on 26 March 2001.

I accept that the parties did not physically live together through much of this period. I do not, in my view, need to decide in detail what nights the parties may have spent together during the times the respondent was in Australia. I am satisfied that where possible a physical relationship continued between the parties. It is also abundantly clear from the actions of the respondent that he was holding out to the applicant that they had a continuing relationship and to third parties that the applicant was his partner. He involved the applicant in his financial affairs by setting up a company and trusts which not only involved her but used her name. Clare Court was purchased by that company.

In the early part of this period, the respondent may very well have been telling his then wife he wanted to remain with her. However his actions and the extent to which he involved the applicant in his affairs suggest otherwise.

I am satisfied that during this period a significant relationship existed between the parties in terms of the Act.

January 2002 to January 2005

The respondent's counsel conceded at the commencement of the trial that the respondent was in a significant relationship with the applicant from January 2002 to December 2004. That concession was completely inconsistent with direct sworn statements contained in the respondent's affidavit sworn 13 May 2005, the picture he attempted to portray in that affidavit and, at times, his oral evidence.

The respondent was posted to Kenya in February 2002 having just had a period of leave in Tasmania. In that period of leave he said that he lived in the flat attached to the house at Milldam Road with his children or he would occasionally take a mattress upstairs where the applicant was. He said he had lunch with his parents each day and that he otherwise bought food and his mother prepared meals. He returned to Tasmania during periods of leave between 16 - 28 June 2002, 29 September 2002 to 11 October 2002, 12 January 2003 to 10 February 2003, 18 May 2003 to 11 June 2003, 14 September 2003 to 5 October 2003, 25 January 2004 to 2 March 2004, 6 - 22 June 2004 and 6 September 2004 to 3 October 2004.

The respondent said in his affidavit (13 May 2005) that he met his present wife in Kenya in June 2002 and that they commenced to live together in August/September that year. He said he told the applicant this in September 2002. The applicant denied this. She was adamant she had no knowledge the respondent was involved in another relationship and was in fact living with the woman, now his wife, in Kenya until after she and respondent separated. When the respondent was cross-examined about the nature of his relationship with his present wife in 2002, he described the relationship as having no emotional attachment and being one of domestic compromise. He described her to a third party as his housekeeper.

The respondent said in the same affidavit that on most of the occasions he returned to Tasmania as listed above, he stayed at Milldam Road, although at times he stayed with his parents.

The respondent's evidence, as I have already said, was such as to be essentially unbelievable.

The applicant described events towards the end of 2004. She did not deny that there were problems in her relationship with the respondent. She said on 17 September 2004, she travelled to Hobart with the respondent, her children and mother to sit her final exams. The respondent took her to her exam. They shared a bed that night.

In October 2004, the applicant was told by the respondent's parents that he was taking his former wife and his children to Kenya for part of the Christmas holidays. The applicant was unaware of this and became angry. She said she was angry because the respondent had not told her. As far as she knew, they still had an ongoing relationship and he had said he loved her and he had promised to take her to Kenya if she passed her exams.

Late in November 2004, the applicant was advised she had passed her exams and went to lunch with the respondent's parents to celebrate. The respondent was working in Kenya at the time and they rang him. The applicant said the respondent seemed genuinely happy for her but he was still angry with her for accusing him of lying to her about taking his former wife to Kenya.

On or about 10 January 2005, the applicant received a letter from the respondent's solicitors telling her their relationship was ended. Nothing in that letter would indicate other than the relationship had been ongoing until then. There was certainly no indication the relationship had been over because the respondent had been living with another woman since late in 2002.

I am satisfied a significant relationship continued until January 2005. I have no reason not to accept the evidence of the respondent's present wife as to the fact that she had been living with the respondent in Kenya while he was there well before this date. However, I accept this had never been communicated to the applicant and that as far as she was concerned her relationship with the respondent was ongoing. I also accept the respondent actively held out that position to the applicant.

The respondent's counsel conceded a continuing significant relationship until at least December 2004. If however a finding is required, I am satisfied a significant relationship existed until January 2005.

Summary of periods of significant relationship

In summary I am satisfied that a significant relationship within the meaning of the Act existed from September 1999 to January 2005, a period of 5 years and 4 months.

Applicant's assets, liabilities and resources at commencement of relationship

The applicant had cash at bank and jewellery to a total value of about $4,000 and no liabilities at the commencement of the relationship.

Respondent's assets, liabilities and resources at commencement of relationship

The evidence established that the respondent had interests in the following as at September 1999:

House and land at Milldam Road, Port Sorell;
Furniture and household effects at Milldam Road;
Land at Beechworth in Victoria;
ING (formerly Mercantile Mutual) Personal Retirement Plan;
AMP shares;
AMP Endowment Personal Superannuation Plan number V88 1427B-J; and
UN Superannuation.

Assets, liabilities and resources at end of relationship

Assets

Property at 188 Milldam Road, Port Sorell

This was registered in the sole name of the respondent, having been purchased in August 1998. The property was purchased with the assistance of a mortgage obtained from the St George Bank. No statements were produced relating to the loan as at its start date. However a statement dated 14 September 2000 showed that the original loan was for $166,000. By 8 August 2000, that had been reduced to $27,601 and it was cleared altogether on 28 August 2000. The mortgage, however, remained on the title.

At that date the applicant was still in Sri Lanka and there was no evidence of any financial interrelationship between the parties. I am satisfied that the respondent repaid that debt from his own resources without any direct financial contribution from the applicant.

In the middle of 2001, the respondent used the property as security for a further loan he arranged with the St George Bank in the sum of $400,000. He subsequently refinanced that loan and, as a consequence, the St George Bank mortgage was discharged in January 2002 and a fresh mortgage was granted to the Commonwealth Bank. That fresh mortgage remained at the time of trial to secure a debt in the respondent's name described as a Viridian line of credit. The amount owed at the time of trial was approximately $245,000.

The applicant has resided in the property since November 2001. The value of this property for the purpose of trial was agreed at $660,000.

Furniture and household effects at Milldam Road

There was a significant quantity of furniture and household effects at Milldam Road when the applicant moved there. They were, however, never identified in the evidence. There were other items purchased by each party subsequently but again they were not identified by reference to any value.

The value of the furniture and household effects at Milldam Road for the purpose of trial was disputed. Two valuers gave evidence, Russell Thomson for the applicant and David Cousins for the respondent. Each valuer supplied a written report in which the items valued were listed and each of the valuers gave oral evidence.

The lists in the valuation reports were different and it was not possible to match all items. Counsel for the respondent handed up as an aid what was said to be a compilation of both lists matching up the items. That was never formally tendered, nor was there any formal agreement it was accurate. The total of the Thomson valuation was $48,245, the Cousins valuations (two), $37,720, there being a difference of $10,526. Mr Cousins noted in his valuation that he had not inspected the contents of one room (in which house was not identified) and the contents of boxes in a shed at Milldam Road. There was no evidence to establish whether these items were included in Mr Thomson's valuation. I am not satisfied any direct comparison could be made between the two valuations for these reasons. Both valuers in their oral evidence conceded there would always be an accepted percentage variation between valuations in any event.

Both valuers were cross-examined as to their expertise in the area of chattel valuation. The Court was asked to accept one valuer over another having regard to their qualifications, their experience, their current role in the area of chattel valuation, the valuation methodology used, their knowledge of valuation methodology generally and the manner in which they produced their report. I am satisfied, having regard to the evidence I heard about each of these matters, that Mr Thomson had the more extensive relevant experience and demonstrated a more accurate knowledge of valuation methodology.

This was not a case where the parties agreed to divide household contents without regard to their formal value and concentrate on disputes about the value of major items only. The parties in this case essentially presented to the Court two different lists of chattels with two different totals which they each said represented the items to be considered. The Court was asked to choose between them. Having regard to the finding in the preceding paragraph, I accept the valuation of chattels prepared by Mr Thomson at $48,245.

Land at Beechworth, Victoria

The respondent acquired this property in 1997 for $35,000. There was no evidence the applicant had had anything at all to do with this property. There was no evidence any improvements were made to it during the parties' relationship or that the applicant had made any direct financial contribution to it. The property had an agreed value for trial of $90,000.

AMP shares

The respondent owned 465 AMP shares. They arose from the demutualisation of the company supplemented by dividend reinvestment arrangements. The value of the shares for the purpose of this trial was agreed at $3,700.

2003 Mercedes motor vehicle

On 8 October 2002, the respondent signed a contract in the joint names of the parties to acquire a Mercedes Benz ML270 motor vehicle. The total cost was $86,000 to be financed by a trade in (a 2000 Mercedes Benz ML320 registered number FL 949) for $6000 and a finance company lease. The expected delivery date was April 2003. Repayments of $1,261.91 commenced on 12 March 2003, with the lease to run until February 2008.

The applicant asserted this was a gift to her and relied on the content of an email sent to her by the respondent to that effect. She was aware of the order for the car and in fact tried to talk the respondent out of proceeding with it because she believed it was an extravagance. The vehicle, on delivery, was locked away until about September 2003. The respondent's explanation for that was the applicant had dented a Mitsubishi van she had been driving and he was reluctant to let her use the Mercedes. The applicant began to use it, however, and did so until early 2005 when the respondent took the vehicle away from her. He has kept it since.

Save for one in May 2003 paid by the applicant, the respondent has paid the lease payments in respect of the vehicle since its acquisition. The parties have agreed for the purpose of trial that the vehicle is worth $56,750 and that the lease payout is $62,937.

Nairobi unit

In December 2004, the respondent and his present wife purchased a leasehold apartment in Kenya for six million four hundred thousand Kenyan shillings. The parties have agreed for the purpose of the trial that its value is $115,840. The respondent and his present wife obtained a housing loan with La Mutuelle (United Nations related entity). It was agreed, for the purpose of the trial, that $79,268 was owing on this loan. There was no suggestion the applicant had made any direct financial contribution to this asset, the payments having begun after she and the respondent separated.

1923 Maxwell motor vehicle

This was purchased in September 2004. There was no direct evidence as to its cost. The respondent said he did the negotiations for its purchase and it was an investment. It follows the respondent at least believed it was likely to increase in value, or at least not lose value. The only other information about its purchase came from the affidavit of the respondent's father and documents tendered to the Court. They showed an amount of $19,000 was said to have been paid as the balance cost of the vehicle. There was no evidence the applicant made any direct financial contribution to this asset.

The present value of the vehicle was disputed and valuers Thomson and Cousins were again called upon. I have approached the valuation differences for the Maxwell and other cars differently because in most cases there was external evidence to establish what I might describe as a cost base. Each valuer was again challenged as to his expertise to value.

The Thomson valuation of the Maxwell was $20,000, the Cousins valuation was $10,500. Both valuers had a personal interest in vintage cars and had been involved in restoration of them. Before inspection, Mr Thomson had no knowledge of this particular car or type of car. He personally had limited experience in the sale of vintage cars. He accessed knowledge from his colleagues, a number of car magazines and the internet as research for his valuation. He said the car was rare and it needed some work. He had obviously, from his answers in cross-examination, made enquiries as to the availability of parts and possible cost of further work. He said that his firm could access a national market via the internet and he estimated that the vehicle might fetch anywhere between $18,000 and $25,000 were it sold.

Mr Cousins also relied on his knowledge of vintage cars generally and information he gathered through Shannons Auction, magazines and enquiries with the person who had originally restored the car 15 to 18 years ago. He said that without the hood, bows and lining the value would be brought down. He said he doubted the car was worth more than he stated and believed the respondent had paid too much. He said his valuation was consistent with those suggested by Shannons, although he gave no evidence Shannons had actually sold a vehicle such as this.

General evidence from both valuers confirmed difficulties in providing accurate valuations of cars such as this without exposing them to the market. The evidence of each valuer was such that in my view it would be impossible to make a finding that either is necessarily right or wrong. The only external information is what is known about what was paid for the vehicle in September 2004. There was no evidence to suggest the market in vintage cars had fallen away and there was no specific evidence from Mr Cousins to support the belief he stated that the respondent had paid too much.

In all the circumstances for the purpose of these proceedings, I accept the value of the Maxwell vehicle is more likely than not to be that given by Mr Thomson.

1912 Willeys Overlander motor vehicle

This was purchased for $18,500 in October 2003. The respondent said he bought it as an investment and the applicant had nothing to do with it. He was to pay for it, but his father did. That was a matter of dispute. There was no evidence the applicant made any direct financial contribution to its purchase. The value for trial was disputed and Mr Thomson and Mr Cousins prepared valuations. It emerged that the car was purchased with a trailer which each valuer had separately valued, Mr Thomson at $2,800 and Mr Cousins at $2,500. On that basis Mr Thomson had valued the vehicle at $22,000 while Mr Cousins valued it at $16,500 (the mean of a range $15,000 to $18,000). He said the car was not made up of original parts and was a combination of other cars from different years. It was his view the value would be higher if the car were not in this sort of condition. He did not ask the respondent what he paid for the car.

Mr Thomson gave his range as $20,000 to $25,000 believing $16,500 was too low. He did not believe he was being optimistic. He accessed the same sources of information as before and relied on access to an extended market to sell it. He had found one such vehicle on the internet which sold in Scandinavia for 50,000 pounds. He did not know the condition of that vehicle, but presumed it to be original.

The same comments about difficulties in valuation applied to this vehicle. Again there was no evidence the market had fallen away. The only external evidence suggested a purchase for about $16,000 a little over two years before the valuation. The vehicle was purchased as an investment. In those circumstances, while I am satisfied it is more likely than not the vehicle is worth more than Mr Cousins' estimate, I cannot necessarily be satisfied it is worth what Mr Thomson has assessed it at. The only finding I can make in those circumstances is it is worth at least $18,000, but not more than $22,000.

1972 Steyr Puch Haflinger motor vehicle / Steyr Puch Haflinger vehicle – restoration project, parts only

There was no evidence about precisely when all this was acquired or what was paid for it. The evidence the respondent gave was confusing from the point of view of someone unfamiliar with his dealings. He said he bought one Haflinger in Melbourne as an investment, using money he brought in from overseas. He then said he bought another one which was badly rusted and spare parts from somewhere near Sheffield. That was funded by monies out of the Viridian account. The value of all of this was disputed.

As to the 1972 Haflinger, the difference in valuations was $2,000, Mr Thomson saying $8,500 and Mr Cousins $6,500. There was no explanation in any valuation report as to how the figures were reached. The only oral evidence at all, apart from the general questions about valuing vintage cars, was one asked of Mr Cousins about whether he knew what this vehicle cost. He said he thought $5,000. Apart from that, the Court was given no guidance as to how each valuer had reached his figure. I am unable, in the circumstances, to make a finding other than its value is in the range $6,500 to $8,500. The same comments apply to the Steyr Puch Haflinger parts, save there was no evidence at all as to their cost and when they were acquired. I take the same view. The only finding will be that they are worth between $2,000 and $2,500 which was the range put forward by the valuers.

1976 Steyr Puch Pinzgauer motor vehicle

The applicant said this vehicle was acquired in January 2004 but gave no detail as to how.

The respondent said that he advertised a Mitsubishi van, one the applicant had driven prior to the Mercedes, for sale. A person replied to the advertisement but could not pay the price being asked. After some discussion the respondent agreed to swap the van and two 4WD motorcycles he had in a shed for the Pinzgauer. He said the applicant had nothing to do with this deal and he did not discuss it with her beforehand. He did discuss with the applicant taking trips away in the vehicle. He primarily bought it as an investment believing it would appreciate. There was no evidence as to what its value might have been at the time of acquisition. Its value for the purpose of these proceedings was disputed.

Mr Thomson valued it at $48,000, Mr Cousins at $40,000. Mr Thomson accessed a website for a club in Melbourne and spoke to the person who ran it. He was told of a similar vehicle which had sold in Melbourne for $45,000. The condition of that vehicle had been described to him. He took the view the respondent's car had more accessories and that he could, at auction, achieve between $45,000 and $50,000. There would be commission and sale costs to be taken into account.

Mr Cousins based his figure on the sale price of a similar vehicle in Western Australia. He said it was otherwise very hard to put a market value on the vehicle. In commenting on Mr Thomson's figure, he said that unless the vehicle were put to market it would be like stabbing in the dark. Mr Cousins gave no evidence about the condition of the vehicle sold in Western Australia.

On the evidence available to me I am satisfied it is more likely than not that Mr Thomson's value is the more accurate.

Applicant's 2002 Mercedes Benz

This vehicle was acquired by the applicant post-separation of the parties. It was agreed by the parties there was no equity in the vehicle for the purpose of this dispute.

Applicant's savings

The applicant has maintained an ANZ access cheque account since April 2001, which is shortly after her arrival in Tasmania. The balance of that account as at 10 January 2005 was $66,249. The balance of the same account at approximately the trial date was agreed at $76,531. Throughout the time that account has been operating, the applicant has worked as a general practitioner, initially in an employed capacity but later on her own account. There was no suggestion on the evidence that the respondent has ever made a direct contribution to that account, the inference I accept being that the funds are wholly as a result of what the applicant has earned.

Applicant's unsecured loan to D Martin

This was a loan made by the applicant in August 2004 to be repaid over five years. Its value in the applicant's hands for the purpose of trial was agreed at $22,000.

Applicant's ING Bond

The evidence about this was extremely limited. While giving her evidence, the applicant was handed a document by her counsel and she identified it as her investment. The document, however, is nothing more than a general printout relating to an ING Tax Effective Investment Bond. It does not relate to the specific investment the applicant said she had or provide any details about it. Written on the bottom of the first page by a person who was never identified were the words "Current Balance $13,486.58".

The applicant clearly knew little about the mechanics of the bond. She told the Court her accountant had recommended it as a tax effective investment. She would make payments over a 10 year period. The bond would mature in 2014 and the beneficiaries were her two children. She had received advice that she could cash it, but that if she planned to do so in the next couple of years, there would be no point in taking it out.

Applicant's interest in medical practice plant and equipment

This was agreed for the purpose of the proceedings to have a value of $21,598.

Liabilities

Respondent's Commonwealth Bank Viridian line of credit

The balance owing on that line of credit as at 10 January 2005 was $245,449 and on 30 November 2005, $246,880.32.

Respondent's ANZ Visa debt

This account is in the name of Mrs Maria Dixon, the respondent's mother. The balance as at 10 January 2005 was $499. That debt had increased to $7,889 as at the date of trial. The respondent's evidence was that this was wholly his debt and not his mother's.

Respondent's United Nations Federal Credit Union debt

The parties agreed that the balance of this debt to be taken into account for the purpose of the trial was $11,643. I was not told at what date that amount was owed. The statements tendered to the Court by the parties showed an amount owing as at 30 November 2005 of $9,702.60. However, quite clearly that included numerous debits incurred by the respondent since the parties separated. There was no evidence as to what might have been the outstanding balance when the parties separated and indeed no oral evidence about it at all.

Respondent's CBA Visa account

There was no evidence as to the balance of this account when the parties separated and indeed no oral evidence about this debt at all. Documents showed the balance as at 7 July 2005 was nil. As at 9 August 2005 it was $246.85. There was no statement produced showing the balance as at the first week of September. The next statements produced showed a balance as at 5 October 2005 of $7,506.99 and then at 4 November 2005 of $6,706.81. It appeared that some $6,123 had been debited to the account during the period for which no statement was produced. A summary of assets and liabilities handed up by counsel during the course of closing addresses showed the balance of the account for the purpose of trial at $16,372. There was no evidence of any description to support that figure.

Just Pianos debt

In September 2004 the respondent purchased a piano on time payment. The parties agreed for the purpose of the trial that the debt still owing was $4,375.

Northwest Off-Road debt

Documents produced showed that in or around June 2004 the respondent had extensive work done on his veteran cars. The debt for that work remained owing as at December 2005 in the amount of $3,179.83.

Applicant's Coles/Myer credit card

There was no oral evidence about this debt save to identify a statement produced to the Court which showed that the amount owing as at 12 October 2005 was $1,102. There was no evidence to indicate what the debt might have been when the parties separated.

Applicant's contingent tax debt

The applicant's accountant had prepared a taxation return for the year ended 30 June 2005 for lodgement. The applicant had advice that the anticipated taxation liability as a consequence of that return would be $48,287.30, although at the date of trial no assessment had been issued.

Resources

Respondent's ING Personal Retirement Plan

The respondent commenced a Personal Retirement Plan with Mercantile Mutual (now ING) in 1984. His wholly preserved withdrawal benefit as at 30 September 1999 was $14,097.15. The agreed value for the purpose of this matter was $18,168.43.

Respondent's AMP Endowment Personal Superannuation Plan number V88 1427B-J

This plan commenced in 1977. The material tendered to the court showed that quarterly contributions of $300 had been made to the plan at least since November 1998. The parties agreed that the withdrawal value for the purpose of the trial was $47,922.44. According to the paperwork tendered to the Court, that amount was wholly preserved until the respondent retired.

Respondent's entitlement with United Nations Joint Staff Pension Fund

It was agreed by the parties that for the purpose of trial this entitlement was worth $291,497. The respondent has been a member of this fund since 1993. No evidence was given about any restrictions on access to this benefit. I can only infer that were the respondent to retire now, he could access those funds in full having regard to his age.

Applicant's superannuation with Tasplan

This was agreed for the purpose of the proceedings to have a value of $36,419.44. By reason of her age, the applicant will not be able to access these funds for a number of years.

Specific Issues

Interrelationship between purchase and sale of Clare Court, St George Bank loan and Viridian line of credit

Counsel for the applicant submitted that the Viridian line of credit debt should not be taken into account as a debt of the parties for the purpose of determining the pool of assets for adjustment. The basis of this argument was that the respondent had personally received the proceeds of sale of Clare Court and had failed to account for them to the legal owner of that property, namely the company. Counsel submitted there was no clear evidence put before the Court by the respondent, he having the onus to demonstrate that he had properly accounted for such proceeds.

Counsel for the applicant referred me to a number of authorities to which he urged me to have regard relevant to the law which should be applied in cases where a trustee has failed to account. Counsel for the respondent did not address these at all. However, the arguments of counsel for the applicant were predicated on certain conclusions he asked the Court to draw about how the respondent dealt with funds related to the Clare Court sale and purchase, and those introduced by the Viridian line of credit. The oral evidence about all these transactions was minimal. The respondent appeared to have little grasp of them and I was left to examine a large number of documents which were largely unexplained. It is from those my conclusions have mainly been drawn.

In May 2001, the respondent established in his own name with the St George Bank, a Property Power Account numbered 040893472. It was a loan account with a credit limit of $400,000. In June 2001, the respondent signed a contract to purchase Clare Court for $380,000. Completion was to be effected in his name or that of his nominee. He nominated the company as trustee of the family trust. The purchase was completed on 13 July 2001 with the property being registered in the name of the company. On that day the sum of $397,010.50 was drawn from the loan account and an amount of $395,474.60 was credited to the ledger maintained by the respondent's solicitors for the purchase. The loan was secured over Milldam Road with collateral security over the title to Clare Court.

The applicant moved into the property with her children on 14 July 2001 and remained there until about the third week of September 2001. At or about the same time, the respondent's parents, having sold their own home in New South Wales, arrived in Tasmania and took up residence in Clare Court.

On 21 September 2001, an amount of $611,136.63 was credited to the respondent's Everyday cheque account numbered 147834245 with the St George Bank. The amount was deposited in error and was the sale proceeds of the respondent's parents' New South Wales home. On 27 September, $211,000 of those funds was removed from the respondent's cheque account and put in his parents' bank account, leaving $400,136.63. The respondent's father's explanation for that was that the amount he left in his son's account was to cover the purchase of Clare Court, plus an extra $20,000 for some furniture. The respondent also referred in passing to $20,000 being paid for some of the items in the home. I note the contract price provided for chattels of $30,000 included in the price of $380,000 and not in addition to it. There was no other evidence which might explain what that extra $20,000 was actually for. I can only infer that indeed it related to some private arrangement between the respondent and his parents pursuant to which he sold them items not covered by the contract of sale.

On 1 October 2001, a contract to sell Clare Court was entered into between the company and the respondent's parents. The sale price was stated to be $380,000 with settlement due on 5 October 2001. The sale was not immediately completed.

On 16 October 2001, a cheque was drawn from the respondent's cheque account in the sum of $164,700. I am satisfied, having regard to the terms of Family Court orders made between the respondent and his former wife dated 18 September 2001 and a receipt issued by the respondent's solicitors for the equivalent amount, that this sum was the major part of settlement funds due to be paid to the wife.

On 22 October 2001, the sum of $185,000 was transferred out of the cheque account to another St George account. I am satisfied, having regard to the bank statements produced and the timing of the transfer, that the funds were credited to the Property Power loan account to reduce the debt incurred by the respondent to purchase Clare Court. That still left a significant amount owing to the St George Bank in relation to the purchase. It also left about $30,000 of the $380,000 the respondent received from his parents for the purchase of Clare Court in his cheque account

On 14 December 2001, the respondent established a line of credit with the Commonwealth Bank called a Viridian account. On 20 December 2001 an amount of $185,732.86 was drawn from that loan account and paid to the St George Bank. It cleared the remaining debt incurred to purchase Clare Court. I accept that the establishment of the Viridian line of credit was a refinancing of that St George debt.

The solicitors for the respondent acted for the respondent, the company and the respondent's parents in the sale and purchase of Clare Court. Copies of firm ledgers produced to the Court showed that the sale to the respondent's parents was probably formally completed on 21 December 2001, that being the date when balance settlement funds were transferred from one firm ledger to another.

A settlement statement addressed to the respondent's parents dated 5 December 2001 was produced to the Court. That set out that the amount required to settle the purchase was $393,552 and that $380,000 of that was paid "by private arrangement". The settlement statement allowed for no adjustments for rates or land tax. It sought only the price of $380,000, plus $13,552 to cover stamp duty of $12,750, registration fee on transfer $131 and fees and disbursements of $671. Between 10 and 21 December 2001, the respondent's parents paid to the solicitors a total of $14,865. The extra amount was to cover additional stamp duty of $800 and $513, being the fees and disbursements charged to the company for acting on the sale to the respondent's parents.

On 21 December 2001 a second contract relating to the sale of Clare Court was entered into between the company and the respondent's parents which showed a sale price of $410,000. While the applicant and the respondent signed the first one, only the respondent's signature appeared on the latter. No explanation was ever provided as to why there were two contracts.

Title records show that in early January 2002, the St George Bank security over Milldam Road and Clare Court was discharged and fresh security was registered over Milldam Road in favour of the Commonwealth Bank. At the same time Clare Court was registered into the name of the respondent's parents.

There can be no doubt that the respondent has at all times ignored the existence of the company and trust structure created to provide a potential benefit to him. There can be no doubt he has not formally accounted to the company and the trust for the sale proceeds. However, the practicalities of these transactions cannot be ignored.

Neither the company nor the trust put anything into the purchase of Clare Court. All funds were provided by the respondent through personal borrowings. Neither the company nor the trust has ever had a bank account or any financial records maintained for it. The only contribution the company could be said to have made at any time was to "allow" property registered in its name to be used as collateral security for the respondent's borrowings.

The respondent provided to the company $395,474.60 for the purchase. He got back, albeit directly from his parents rather than via the company, $380,000. There has never been a profit on the transaction in respect of which he could have accounted to the trust.

For those reasons I am not prepared to completely disregard the Viridian line of credit debt, as counsel for the applicant submitted I should.

It is accepted that bringing into account the entirety of the Viridian line of credit debt as it presently stands is problematical because:

-the respondent was required to meet other financial obligations to his former wife which, on the face of the court orders, were approximately $37,795;
-the respondent has been living with another woman and effectively maintaining two households for a significant portion of the period over which the Viridian line of credit was operated; and
-the respondent has increased the amount owed on the line of credit and there has been no identification of what it might be said related to his relationship with the applicant.

Payments by respondent to former wife in 2001

Family Court orders made on 18 September 2001 required the respondent to pay to his former wife or for her benefit:

-          $164,700 within 60 days;
-          $30,000 within 7 days;
-          $500 for a barbecue; and
-          costs associated with her purchase of another home to a limit of $7,295 within 60 days.

The payment of $164,700 has been accounted for. In his closing submissions, counsel for the respondent asked me to infer from the same orders that a payment of $32,500 drawn from the respondent's Everyday cheque account on 28 September 2001 was to buy his former wife a car. There was no oral evidence about this issue at all. Nowhere in those orders does it require the respondent to purchase his former wife a car. No cheque butt was produced. I cannot draw the inference asked for.

However, there was an amount of $30,000 drawn from the respondent's St George Bank Property Power loan account on 20 September 2001. That was never identified. It is perhaps likely that is the payment due to the wife under par1 of the Family Court orders. However, without further evidence I cannot make a finding.

There was no evidence from the respondent or apparent from any of his documents about the payment of the other obligations identified. The only other evidence arose in the context of the examination of the evidence relating to the alleged debt of the respondent to his father. I will refer to that separately.

Alleged debt to responden's father

The respondent asserted that he owed his father the sum of $81,000. This arose because, when he was overseas, his father used to manage his financial affairs and could draw on his cheque account to pay bills. The respondent said that up until the time he was posted to Kenya, he generally operated in the black. After he was posted there in 2002, however, from time to time his father would have to lend him money to cover payments. The respondent gave no detailed evidence at all about what he said was this debt.

Mr Dixon Senior, in his affidavit put to the Court, said that his son owed him $81,000. That figure was corrected in oral evidence as a result of an arithmetical error to $80,751.50. He told the Court that from early 2001 he looked after his son's financial affairs. If there were accounts to be paid, he would pay them from his son's bank account. If, however, there were insufficient funds, he would pay the accounts from the joint bank account he and his wife maintained and seek reimbursement later. He maintained that he had not been reimbursed for some $81,000 and that amount was owed to him.

There were 26 specific payments identified by Mr Dixon Senior said to have been made by him between 16 March 2001 and 27 April 2005 for which there had been no reimbursement. All were identified by reference to cheque butts and cheque account statements produced by Mr Dixon Senior. Handwritten notes appeared on those which Mr Dixon Senior said he wrote when he wrote the cheque or when he received the statement. Apart from those notes, neither the respondent nor his father kept any record of what was said to have been paid or reimbursed, or any sort of ledger or running record of balances owing. Mr Dixon Senior's memory, save where specifically assisted by documentation, was not reliable. In his oral evidence, he had little independent memory of the transactions he described and was almost wholly reliant on the paperwork produced to the Court.

A number of specific comments need to be made about the evidence on this issue:

-The evidence of the respondent was that he believed he was "in the black" prior to his posting to Kenya. That was in February 2002 after a number of the payments seem to have been made.
-There were no accounts produced to support the payments said to have been made for the respondent.
-There was no accounting of payments by way of reimbursement and records produced identified what appeared to be such payments in April and June 2002.
-A payment on 12 October 2001 was described as a deposit on a house for the respondent's former wife. No such obligation existed according to the Family Court orders.
-A payment on 25 October 2001 was described as a payment made to the respondent's and the Dixon Senior's solicitors as being a rate adjustment payable by the respondent. There is no evidence of any such amount being required of the respondent by his solicitors. At the time the only person likely to have incurred such a payment was the respondent's parents.
-A payment was made on 26 October 2001 to Harvey Norman and described as "owed by John". It was drawn at a time when Mr Dixon Senior was paying a number of expenses for things for Clare Court. There was no detail about what or where it was for and no oral evidence given to explain it.
-A payment was made on 14 December 2001 to Aurora Energy said to be "1 month owed by Angela Clare Court". By this date the Dixon Seniors had been occupying the property for almost 3 months. No account was produced.
-A payment on 21 December 2001 was described as "Extra legal costs John". The solicitors' ledger shows the amount as being the costs and disbursements payable by the company on the sale to the respondent's parents.
-There was a payment on 10 May 2002 said to be to AMP. There is no cheque butt or account to identify it. It is shown on a bank statement as a St George Bank Bpay. The respondent's own bank statements show a payment to AMP of $300 on 29 May 2002. Since the payments on his AMP policy were made quarterly, it suggests whatever the payment made by Mr Dixon Senior, was it was unlikely to have been to AMP for his son.
-A payment on 27 April 2005 of $6,553.77 was said to be for the respondent's visa. The back of the cheque butt reads "$6500 paid in from Maria Bank A/C John Owes Plus $2000". The words "John Owes" are in a different ink to the rest of the words and appear to have been inserted after the event between two existing lines.
-As to a payment said to have been made on 17 October 2003 of $18,500, Mr Dixon Senior said his son borrowed the money to buy a Willeys Overlander car. His bank statement shows a cheque number 148 for this amount with a handwritten note on the statement which says "JOHN LOAN RE VET CAR". On the back of the cheque butt there are the words "cheque 148 returned". The respondent's father's statements show a credit of $18,500 on 27 October 2003 identified as "pay back from J" and then a returned cheque on 29 October 2003 identified as "incorrect credit and debit" for the same amount. A letter from the Commonwealth Bank dated 12 November 2003 shows that a cheque drawn on the respondent's account had been dishonoured.
The respondent's bank statements on the other hand show that cheque 148 drawn by Mr Dixon Senior was credited to his son's bank account on 17 October 2003. On the same date a cheque for $18,500 was paid to an R Lawrence said to be for the car. On 27 October 2003 a cheque number 103 for $18,500 was drawn on the respondent's bank account in favour of the respondent's parents. That entry was reversed the next day. However on 7 November 2003 a further debit of $18,500 appeared on the respondent's bank statement said to be for the "vet car". There was no bank account produced by Mr Dixon Senior for that period. However there appears to be a clear inference that at the end of the day the respondent, and not his parents, paid for that car. Since neither the respondent nor his father gave any other evidence about this transaction and I have already made comment about Mr Dixon Senior's credit, I cannot be satisfied that amount is a debt.
-As to a payment on 19 September 2004 of $19,000, Mr Dixon Senior said in his affidavit he paid $19,000 for a Maxwell car on 19 September 2004 and that his son borrowed the money from him for this. The cheque butt describes the purpose for which the amount was drawn as "Bal Maxwell John". Mr Dixon Senior's bank statements show that on 14 September 2004 the sum of $19,000 was deposited to his account. There is a note beside it "Maria's Bank". The debit of $19,000 then appears a few days later. Again there was no other evidence from anyone about this transaction. No statements relating to "Maria's" account were produced.

Generally, there is evidence that Mr Dixon Senior has paid some accounts for his son over a three year period. I have, however, already made comment about Mr Dixon Senior's credit and that of the respondent. There are a number of factors which leave me unable to conclude that the respondent is indeed indebted to his father in the amount claimed. In summary these factors are:

-Neither the respondent nor his father has kept any form of ledger or set of accounts for what is a large amount and in respect of which they suggested there were periodic debits and credits over three years.
-There is a discrepancy on the evidence between the respondent and his father as to the period over which this debt was said to have accrued.
-There is evidence that a notation on one cheque butt has been altered after the event.
-The documents produced and evidence led from the two parties who could give evidence about these matters was inadequate.
-There is a clear inference in relation to the purchase of the Willeys Overlander that Mr Dixon Senior was reimbursed for whatever he paid.
-The evidence relating to the Visa card debts said to have been paid was unclear. The account was in the name of the respondent's mother. There were three card numbers. The Court was told one was used by the respondent's mother and the other two sequentially by the respondent. However there were debits suggesting the respondent's card had been used at local Tasmanian outlets on dates when the respondent told the Court he was not in the state.
-One of the reasons advanced by the respondent and his father as to why his father would not forego repayment of what was said to be a debt was that there were other siblings, the implication being Mr Dixon Senior could not prefer one over the others. The respondent has two brothers, Alexander and Gregory. The cheque books of Mr Dixon Senior show payments of $20,000 each to those siblings in July 2004, but no equivalent payment to the respondent.

Application of the law

The Court is empowered to make any order it considers just and equitable having regard to the factors in the Act, s40.

Counsel for the respondent raised three matters in relation to those factors. Firstly, he submitted that s40(1)(a) only referred to contributions to property and that, having regard to the definitions of "property" and "financial resources" in the Act, there could be no question of the Court considering contributions that might be said to have been made to any superannuation entitlement of a party. He agreed that an entitlement to superannuation could be taken into account as a factor pursuant to s40(1)(b).

Secondly, he submitted that in relation to s40(1)(c), there were two distinct contributions to be considered. These were those to the welfare of a partner and those to the welfare of the family.

These submissions were not addressed by counsel for the applicant. They did not really need to be. They are a statement of what the Act says.

Thirdly, he raised an issue in relation to the effect of s40(1)(e). He submitted that could only be relevant in this matter if the prerequisites of s47 were satisfied. That is, if the applicant in this case could establish no claim for maintenance, then none of the factors in s47 could be taken into account by the Court in determining what, if any, adjustment of property interests should be made. He submitted that it was a different regime from that in the Family Law Act 1975 and that had the legislature intended the same result, it would have made the legislation identical. It did not and he submitted I should accept it did not do so quite deliberately. Counsel did not actually point me to the differences said to exist between this provision and the equivalent in the Family Law Act.

The equivalent Family Law Act provision is s79(4)(e). That reads, "The matters referred to in subsection 75(2) so far as they are relevant". That has been interpreted to permit the Court to take into account in a property settlement matter any of the factors referred to in s75(2) (which deals with maintenance) where they are relevant. They have been loosely described as the "needs based" factors. They may be considered where there is no separate claim for maintenance.

Counsel referred me to the second reading speeches which were made at the time of the introduction of the Act and its predecessor, the De Facto Relationships Act 1999. Neither supports his argument. In fact, the second paragraph at page 4 of the speech relating to the earlier legislation, in my view, runs completely counter to it. The then Attorney-General said:

"The court is also required to take into account … any matter under Clause 23 (matters relating to maintenance) which are relevant."

With respect, none of the terms of the Family Law Act, s79, have been copied word for word. The substance, however, has been carried into the Act. There is nothing in either the wording of the Act or the second reading speeches which would suggest the interpretation suggested by counsel should be adopted. To do so would, in my view, be to ignore what was plainly Parliament's intention which was that the needs-based type factors could be considered if they were relevant to the circumstances of the parties. That is the approach I propose to adopt.

The Act, s40(1), factors

Direct and indirect financial and non-financial contributions to the acquisition, conservation or improvement of any property (s40(1)(a))

The respondent had quite significant assets and resources at the date the party's relationship commenced. The applicant had little.

There was no evidence that at any stage during their relationship the parties maintained any joint financial arrangements. In fact all the evidence suggests they maintained separate finances throughout. Each has incurred and discharged their own debts.

As to Milldam Road, the respondent effectively owned it free of any debt, save a contingent liability to his former wife when the parties' relationship began. There was unchallenged evidence that between 1999 and 2004 the respondent made improvements to this property for which he paid. These were detailed in par29 of his affidavit sworn 13 May 2005. He also did gardening on his visits home and planted fruit trees. He cleaned the gutters from time to time. Throughout the parties' relationship, he made any necessary repayments on loans secured against Milldam Road and continues to do so. He also paid rates and insurance in respect of the property.

As to Milldam Road, the applicant made no contribution at all to that property prior to moving there in November 2001. Between then and now, the applicant has cleaned and generally maintained the home, developed a vegetable garden and planted fruit tress, fumigated the home and carried out and/or paid for small repairs. She identified some money expended and the purpose for which those funds were expended as follows: purchase plants and seeds ($300), replace window (18 December 2001, $247.50), repair garage remote (28 March 2002, $55), service gas heater (19 September 2002, $121), clean carpets (11 October 2003, $210), repair oven (11 February 2004, $88), fumigation (May 2004, $120) and repair hot water cylinder (3 March 2004, $680.50).

There was no evidence at all about what, if any, impact the various improvements and contributions made by each of the parties may have had on the value of the property. There can be no doubt that the property increased in value between 1999 and 2005 (for the purpose of the respondent's property settlement in 2001 he asserted the property was then worth $270,000 and it is now valued at $660,000). Counsel for the respondent conceded that increase is most likely to have been largely brought about by a general increase in the market.

The evidence detailed above allows me to conclude that the applicant made a direct contribution to the conservation and improvement of this property but that such contribution was far outweighed by that of the respondent.

As to Clare Court, the applicant made no direct or indirect contribution to that property. The entirety of the funds to purchase it were borrowed by the respondent and the borrowings were serviced by him.

As to the Beechworth and Nairobi properties, the Maxwell car, Haflinger cars and parts, Willeys Overlander car and AMP shares of the respondent, the applicant has made no direct contributions of any description to any of them. The only possible contribution which might be contended for is that, throughout the relationship the applicant has largely supported herself and her children thus relieving the respondent of any such direct financial obligation, allowing him to use his income to acquire and maintain these assets, ie, an indirect contribution to the acquisition, conservation and maintenance of those assets. It is impossible on the evidence to quantify such a contribution. I am prepared to find that indeed the applicant has made such a contribution but only in relation to the Maxwell and Willeys Overlander cars because, as far as can be seen from the evidence, they were acquired during the currency of the parties' relationship. The contribution was not a significant one.

As to the contents of Milldam Road, the only evidence was that the respondent purchased some of them when his former wife left the property in 2001, these being a television, kitchen appliances, a four piece lounge, a computer, printer, desk and two bookcases. Further, there was evidence the applicant purchased an antique lamp in March 2002 for $843. The rest of the contents were left there by the respondent's former wife when she left in or around October 2001. The purchased items were not identified by reference to the chattel valuations.

As to the 2003 Mercedes, that was acquired in the joint names of the parties. There was no evidence as to the source of the trade-in. The vehicle was financed by a lease. The lease payments, save for one in May 2003 paid by the applicant, have at all times been made by the respondent. The applicant had the use of the vehicle from late 2003 until February 2005. During that period, she paid to register, insure, service and repair it. Despite the applicant's evidence, I am not satisfied it was a completed gift to her. The respondent clearly spoke of it being a present. However, it has never been legally owned by either party such that a gift could be made of it and even had it been, the circumstances of its acquisition and it being kept locked away by the respondent for months, do not support the contention it was a gift.

As to the Pinzgauer car, that was acquired by swapping it for a Mitsubishi van and two motor bikes owned by the respondent prior to the parties' relationship . As to the van, the applicant used that from late 2001 and made payments in respect of its registration, insurance, service and repair. The motor bikes were purchased by the respondent during the parties' relationship. The applicant told the Court one of those bikes was a gift to her. The respondent gave no evidence save to say he bought the bikes. I accept in those circumstances there was a gift of one motor bike to the applicant which was then used to acquire the Pinzgauer. I am satisfied the applicant has made a direct financial contribution to the acquisition of this vehicle, although I cannot quantify it precisely because there was no evidence about the value of the vehicle at the time of purchase. The applicant has also made an indirect contribution arising from her contributions to the conservation of the van.

Financial Resources of parties (s40(1)(b))

The respondent has superannuation entitlements worth approximately $357,588 accrued over a number of years.

The applicant has a superannuation entitlement worth approximately $36,419 accrued wholly during the relationship of the parties.

The Act, s40(1)(c) factors

From September 1999 to November 2000, the only contributions by the applicant under this heading were to the welfare of the respondent. They consisted of some cooking and occasional household duties.

From the time of the child Kristina's birth through to March 2001, the applicant was solely responsible for the care and support of the child. The respondent did not contribute at all. The applicant's situation was made more difficult by the fact she and the respondent were living apart, at times in different countries.

From March 2001 when the applicant came to Australia until January 2005, the family in the context of this case has been constituted by the applicant, the respondent, their child Kristina and the applicant's son Nilan, even though there were periods when the family was not together in the one home. For much of that period, the applicant has been solely responsible for running the family home and looking after the children without any hands-on assistance from the respondent. He was at home for limited periods. This should be distinguished from the case of a separated couple where the absent parent sees the children for contact visits. In this case the respondent was on the other side of the world and unavailable to assist. This contribution to the family should, I accept, be recognised in a significant way, because of this and because the applicant was working long hours at the same time.

During this same period, the applicant ran the family home such that it was a home the respondent could return to when on leave. She paid all living expenses relating to her and the children, which included significant childcare costs to enable her to work, without contribution by the respondent while he was away. I accept she also largely paid such expenses when the respondent was home on leave, inclusive of those relating to him.

During this period, the respondent provided the family home and a car for the applicant. He also provided support and assistance to her in obtaining medical registration in Australia, in her dealings with the immigration department about a visa for her mother and in her dispute with another medical practitioner.

The respondent's counsel submitted that the respondent's arrangement with Mr and Mrs McLachlan in providing them with rent-free accommodation in return for performance of work at Milldam Road in his absence was a contribution by him to the welfare of the family. There was a dispute on the evidence as to precisely what that arrangement was. There was no doubt they paid no rent and they performed some maintenance on the property and assisted the applicant from time to time. The applicant's counsel did not address this argument. I accept it was a contribution, although not a significant one, and not one that could in any way match those of the applicant.

Nature and duration of relationship (s40(1)(d))

The relationship from start to finish was only some 5 years and 4 months long. It was unusual in that the parties spent a significant portion of it living apart physically. That I accept was not by choice but was forced upon them by circumstances, not the least of which was the respondent's employment.

The Act, s47(2) relevant factors

Income, property, financial resources and capacity for employment of each party (s47(2)(a))

The evidence disclosed that the applicant's taxable income for the financial year ended 30 June 2005 was approximately $155,740. The respondent gave no evidence about precisely what he earned. His solicitors tendered to the Court some payslips and two documents which seemed to give a summary of income. The payslips were dated, the other documents were not. No explanation was given as to how the information in the documents should be interpreted. The most recent payslip was dated 31 October 2005. The gross monthly income disclosed was $13,803.18, making an annual total of $165,638. The currency was not shown on the slip. Other documents tendered for the respondent connected to his UN position showed money amounts in American dollars. If that applies to this figure, the income is in the vicinity of $115,284.

Each of the parties is therefore in receipt of a very comfortable income independent of the other. There was no evidence their respective capacities for employment would in any way be adversely affected in the foreseeable future.

The property and financial resources of the parties have already been referred to.

Financial needs and obligations of each party (s47(2)(b))

Neither party gave any detailed evidence as to their day to day financial needs. The applicant presently lives with her two children in a home owned by the respondent at Milldam Road, Port Sorell. She does not pay rates, taxes or insurance in relation to the property. She does not pay anything towards the Commonwealth Bank debt secured over the property. She pays all other day to day costs incurred in supporting herself and her children in that home. These include the costs of childcare for Kristina, in particular, to allow the applicant to work. She will have school fees for both children in due course.

The applicant told the Court she wanted to, in effect, buy out the respondent's interest in the Milldam Road property. If she were not able to do that, she would look at purchasing a home in the area. While no detail was provided about just what costs might be associated with these options, either way the applicant will be required to meet a mortgage and pay rates, taxes and insurance on whatever home she ends up in. Theses costs will be in addition to her present outgoings. She is already making repayments on a car.

The respondent lives with his present wife in a unit they are purchasing jointly in Nairobi. His present wife does not work, it appears by choice. The respondent is meeting repayments on the loan for the unit purchase, maintaining lease payments on the Mercedes vehicle, making payments to his former wife for his children and servicing debt on his Viridian loan and at least two visa cards. He has a child support obligation to the applicant. There was no evidence as to how all of these liabilities impacted on the respondent's income. There was no evidence any step had been taken by him to consolidate his position by selling surplus assets to reduce debt or that there was a need to do so.

The responsibilities of the parties to support others (s47(2)(c))

The applicant is solely responsible for the support of her son Nilan and substantially responsible for that of the parties' daughter Kristina. Those obligations will continue for a number of years.

The applicant told the Court that she was also making regular payments to her mother to help support her. The evidence about this was confusing, the applicant telling the Court she made cash payments by means of Western Union transfers, but not being able to show any documentary support for this. I am not satisfied there is any set arrangement in place for any such payments, although some may be made from time to time. There is, however, no legal obligation on the applicant to make any such payments in any event. I am not satisfied any significance should attach to any such payments.

The respondent has the day to day responsibility to support himself, his present wife and is obliged to pay child support for three children, inclusive of one child in the applicant's care.

Any payments provided for the maintenance of a child in the care and control of either partner (s47(2)(e))

The respondent does not have the care and control of any child.

The applicant receives no financial support for her son.

As to Kristina, there is a child support arrangement in place through the Child Support Agency under which the respondent is required to pay child support for her. The applicant produced a letter dated 11 July 2005 from the Child Support Agency to her in which she was advised that the respondent, commencing 27 June 2005, had an obligation to pay child support of $595.40 per month and that the respondent owed $1,632.43 for the period 4 April to 26 June 2005. She also produced a computer printout from her bank account for the period 27 September 2005 to 16 November 2005 which showed one deposit from the Child Support Agency on 18 October of $2,312.15. A notation on the bottom of that statement set out that "… I should've received by now AU$4168.50. However at present I had only AU$2774.58."

The applicant told the Court she had received no child support until the payment in October. No bank statements of the applicant's beyond 16 November 2005 were produced to the Court. The applicant gave no oral evidence about what, if any, child support payments she had received after 16 November 2005. Her evidence was that she wanted some assurance that she would get regular child support. The clear inference was she had received no more than was noted above.

The respondent gave no evidence about the matter.

During the course of the evidence, counsel for the respondent questioned the applicant about what it was she was asking the Court to do about child support. I intervened, indicating that it appeared it would be a matter of legal argument about what, if any, jurisdiction the Court might have in relation to the issue of child support. Counsel did not ask any further questions and neither counsel advanced any argument about what, if any, impact a failure by the respondent to pay regular child support should have on the Court's decision.

No legislation gives this Court any power to make an order by way of lump sum child support or by way of enforcement of any child support obligation. The Act simply allows the Court to "have regard to" any "payments provided for the maintenance of". In those circumstances I will take into account as one factor to be considered that the respondent has had an obligation to pay child support for his daughter Kristina at the rate of $595.40 per month as and from 4 April 2005 and has paid only $2,774.58.

The age and state of health of each party (s47(2)(g))

The applicant is aged 35, the respondent 58. The applicant is in good health.

The respondent has been treated for prostate cancer. There was no evidence that condition is adversely affecting his lifestyle or life expectancy.

Respondent's submissions

Counsel for the respondent submitted that the basis of the applicant's claim was essentially her contribution as a homemaker and parent because the parties had a child. While he conceded she had made a significant contribution in relation to the child, he submitted she had made little to the welfare of the respondent. The respondent, on the other hand, had made significant contributions to the applicant's welfare by the provision of a home, car and the assistance of the McLachlans and by assistance to her in obtaining medical registration in Australia and her dispute with Dr Saba.

He submitted that if I were to accept that s47(2) factors had any relevance to this matter, they would have little impact.

He submitted the respondent brought significant assets to the relationship while the applicant brought almost none. The applicant was young, she had a good income and she had the capacity to continue to earn that income and build on her assets and her superannuation. On the other hand, the respondent was 58 and hoped to work until he was 65. While he had a good income, his ability to improve his superannuation and asset position was limited.

He submitted the applicant had made no contribution at all in financial terms to most assets and in particular the Nairobi unit was acquired virtually after the relationship ended and should be ignored.

He submitted that the applicant's claim should be satisfied by a payment by the respondent to her of $100,000 with each party, save for a division of some agreed chattels, otherwise retaining their own assets and debts. The respondent would also retain the 2003 Mercedes and its debt.

Applicant's submissions

The applicant's counsel sought on her behalf in effect an amount of $330,000. In practical terms, he sought the transfer of Milldam Road free of debt in consideration for a payment of half its agreed value.

He submitted that the relationship of the parties was ongoing for the purpose of the Act by reason of the applicant's continuing care of Kristina. He referred to Williams v Williams (1984) FLC ¶91-541, a decision of the Full Court of the Family Court of Australia dealing with the interpretation of the Family Law Act, s79(4)(c). At 79,383 the court held:

"The reference in sec 79(4)(c) of the Act to contributions to the welfare of the family includes contributions made to the welfare of children of the family after the parties have separated. Accordingly in this case the care by the wife of the children of the marriage after cohabitation ceased and until the time of the present hearing was a factor falling within sec 79(4)(c)."

There is no reason why that statement should not apply in the present case, given the terms of the Act. However it does not apply in the sense of allowing a finding that the significant relationship found to exist is ongoing. It applies in the sense that I accept the applicant has made a significant contribution to the welfare of the family which is ongoing.

Counsel submitted generally that the applicant's claim was based predominantly on the non-financial contributions she has made to the conservation and improvement of property and her substantial contributions to the family. He submitted she had cared for the children without assistance from the respondent for substantial periods prior to separation and almost exclusively since. It was likely that situation would continue for a number of years. She has paid childcare costs and all costs of maintaining herself and the children since moving to Milldam Road. In addition, she has paid all general outgoings and kept that house running as the family home for when the respondent returned on leave.

Counsel referred to a number of other authorities in relation to provisions of the Family Law Act. In general terms, all acknowledged that a contribution as homemaker and parent should be recognised in a significant, and not just a token, way. It was also recognised that the performance by a person of the role of homemaker and parent in circumstances where there was minimal and/or no assistance from the other parent and where that first person was also working to support the family added further significance to that role.

Inclusion of superannuation entitlements in "pool of assets"

The Act, s40, empowers the Court to adjust interests in property and in so doing to have regard to "the financial resources of either or both of the partners". Financial resources as defined in the Act encompassed the respondent's ING policy, his UN superannuation and his AMP fund and the applicant's Tasplan entitlement.

Counsel for the applicant referred to the decision of Blow J in Gray v Burden [2003] TASSC 105 as support for the proposition that the above resources should be included in what was described as the "pool of assets" and any percentage adjustment should then be applied to that pool. While the learned judge adopted that approach in that case, I am not bound to do so.

The Act does not permit the Court to make an order adjusting the interest of a partner in anything other than property. The correct approach, in my view, is to exclude such resources from any such pool but then have regard to them in determining what, if any, adjustment in the pool should be ordered.

Conclusions

The property, liabilities and financial resources have been summarised in annexure A to these reasons. It is those figures I have had regard to in forming my conclusions. I have, however, for the reasons earlier expressed, not made a calculation on a direct percentage basis of the net assets shown. That would, in my view, produce an injustice to the applicant. I have also not discounted any values by reference to sale costs, given there was no evidence at all any assets would be realised.

The relationship between the parties was relatively short. The respondent brought significant assets to the relationship. The applicant brought little. The assets of the respondent which now exist have been acquired almost entirely through his, and not the applicant's, direct financial contributions. The assets of the applicant have been acquired wholly through her direct financial contributions. The parties have almost completely maintained separate financial affairs. The only joint dealings involved the company and the family trusts. Those dealings were of short duration and financed wholly by the respondent.

The applicant is young, has a good income and will be able to improve her financial position. The respondent is 58 and has a good tax-free income. His capacity to improve his financial position is obviously limited by the length of the working life available to him.

The major factor in the applicant's case is her role as homemaker and parent. I am of the view that should be given significant weight because:

- The applicant came to Tasmania to pursue her relationship with the respondent with his very active encouragement. At the time she did that, she had no other reason to come to Tasmania.
-The applicant had no reason to expect other than she was to have a happy and settled life in Tasmania with the respondent and her children to the extent that the respondent was discussing retiring here and being supported by the applicant. She came to Tasmania to be with the respondent in reliance on that expectation.
-The applicant was clearly deceived by the respondent as to what her future with him would be.
-The applicant established a medical practice in the north of the State to provide a substantial income, working long hours as a general practitioner.

- The applicant ran the respondent's home during his absences for work.
- The applicant has no family support in Tasmania.
-The applicant has, since the separation of the parties, been solely responsible for the day to day care of both children. The respondent has provided no hands-on assistance with this and there was no evidence he was likely to in the future.

The applicant is clearly entitled to an adjustment of property interests in her favour. Given the nature and duration of the parties' relationship and the emphasis in the applicant's case on s40(1)(c) contributions as opposed to s40(1)(a) contributions, it is appropriate to deal with any adjustment on a global basis rather than by reference to an asset by asset approach. There are also strong arguments for not adjusting those interests by reference to the calculation of the pool of property and then an allowance of a percentage of that to the applicant. These arguments are:

-The respondent's Viridian line of credit secured over Milldam Road, which is accepted as a debt which needs to be taken into account, started at $185,000 in 2001. The respondent has increased it by reference to the purchase of assets and living expenses since then. The current balance has accrued during a period when the respondent was effectively running two households, one in Tasmania and one with his present wife in Africa without the knowledge of the applicant. For example, the line of credit was increased by nearly $8,000 in December 2004 to clear a credit card debt. That credit card debt substantially related to $7,500 worth of airfares paid for early that month which were unrelated to the applicant and at a time when the respondent was obviously contemplating, or had decided on, telling the applicant their relationship was over.
-The respondent's ANZ visa debt was in fact nil at the time of the parties' separation because of the above transaction, but has been increased by the respondent substantially since.
-There has been no clear accounting for the respondent's income during the relationship. There are what appear to be deposits of income to his Viridian loan account. However, they are inconsistent amounts and there is nothing to satisfy the Court that all income has been accounted for. The applicant, on the other hand, has produced all bank statements showing deposits of income which have resulted in significant savings.
-The Nairobi property has, to all intents and purposes, been acquired after the parties separated.
-At least two of the applicant's assets are not immediately realisable without penalty, namely the unsecured loan and the ING bond.

In all the circumstances the respondent will be required by way of an adjustment of property interests to either provide the applicant with a sum of $250,000 or, alternatively, if she chooses, to allow her that amount towards the purchase of Milldam Road. That is, if she wishes to acquire Milldam Road she will need to pay to the respondent the sum of $410,000 in exchange for which he is to transfer that property to her free of encumbrance.

The adjustment is predicated upon:

-the respondent retaining all his other real property interests and his cars and being responsible for all his debts including any liability relating to the Mercedes acquired by him in 2003;

-          the applicant retaining all her assets and being responsible for her debts;
-          the contents of Milldam Road being divided as per the parties' proposals; and
-          each party retaining their superannuation entitlements.

The parties requested prior to the conclusion of the trial that I make no formal orders until such time as this decision was handed down so that the parties had an opportunity to consider the best way for them to give effect to it. I will hear further from counsel as to the actual orders.

ANNEXURE A

Assets		Respondent	Applicant
Milldam Road Less Viridian line of credit secured over title	$660,000 $246,880 $413,120	$413,120
Beechworth property	$90,000
Nairobi apartment Less debt	$115,840 $79,268 $36,572	$36,572
Maxwell car	$20,000
1972 Steyr Puch Haflinger	$6,500 - $8,500
Steyr Puch Haflinger parts	$2,000 - $2,500
1912 Willeys Overlander	$18,000 - $22,000
1976 Steyr Puch Pinzgauer	$48,000
Unsecured loan to D Martin	$22,000
2002 Mercedes Benz Less debt	$45,000 $45,000 NIL	NIL
Interest in medical practice plant and equipment	$21,598
Savings	$76,531
ING Investment Bond	$13,828
AMP shares	$3,700
Furniture and household effects at Milldam Road	$48,245
Total	$686,137 - $692,637		$133,957

Debts		Respondent	Applicant
ANZ credit card	$6,889
2003 Mercedes Benz (joint) Less balance debt	$56,750 $62,937 $6,187	$6,187
Alleged debt to father	NIL
Just Pianos	$4,375
UNF Credit Union	$11,643
CBA Visa	$16,372
Northwest Off-Road	$3,180
Coles Myer credit card	$1,102.00
Australian Taxation Office	00	Est $48,287.30
Total	$48,646	$49,389.30
Net Assets	$637,491 - $643,991	$84,567.70

Financial Resources

Applicant's Tasplan $36,827.00

Respondent's superannuation -    UN

-   ING
-   AMP

$291,497.00

$18,168.00
$47,922.44

$357,587.44