C, K v O, J - [2014] SADC 87

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
C, K v O, J
[2014] SADC 87
Judgment of Her Honour Judge Cole
22 May 2014
FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS - ADJUSTMENT OF PROPERTY INTERESTS - APPLICATIONS
Application brought by the plaintiff pursuant to s 9 of the Domestic Partners Property Act 1996 (SA) seeking orders pursuant to s 10 of that Act. Plaintiff alleged that she was in a “domestic partnership” with the defendant from July 1994 until January 2008. Defendant denied ever having a “domestic partnership” with the plaintiff. Plaintiff and defendant occupied the same house periodically over several years. Defendant lived interstate for three years during the material time.
Held:
The plaintiff and the defendant were not “domestic partners” within the meaning of the Act at any time. The criterion for the making of an application for the division of property is not satisfied. The plaintiff is not entitled to an order pursuant to s 10 of the Act. The plaintiff’s claim is dismissed.
Domestic Partners Property Act 1996 s 3, s 9, s 10, s 11, s 12; Property (Relationships) Act 1984 , referred to.
Taddeo v Taddeo [2010] SADC 61; Ye v Fung [2006] NSWSC 243; F v R [2012] SADC 84, considered.

C, K v O, J
[2014] SADC 87
Civil
Introduction

This matter involves a claim by the plaintiff against the defendant pursuant to the Domestic Partners Property Act 1996 (SA) (“the Act”).
In the plaintiff’s second statement of claim,[1] the plaintiff alleges that she and the defendant “commenced living together as a couple and /or as husband and wife on a genuine domestic basis in about June of 1994”. It is further alleged that the plaintiff and defendant separated on 23 January 2008.
[1] Transcript p 100.
The plaintiff seeks an order, pursuant to s 10 of the Act, that the defendant pay a lump sum to her.
In his defence, the defendant denies that he has ever lived in a relationship with the plaintiff of a kind such as to give her an entitlement to an order under the Act. The defendant further pleads in his defence that the plaintiff made little or no contribution to any assets and is not entitled to an order under s 10 of the Act.
At the trial of the matter, the plaintiff gave evidence in her own case and voluminous documentary evidence was tendered. The defendant gave evidence in his own case, and his lifelong friends, PA1 and PA2, a neighbour, BA, a nephew, NK, a nephew in law, VL and a friend, JH, also gave evidence. Documentary evidence was also tendered in the defendant’s case.
The Act
The Act[2] provides, in Part 3:
[2]    The Act as it was from 17 April 2008 to 30 June 2013 is applicable.
9—Property adjustment order
(1)After a domestic partnership ends, either of the domestic partners may apply to a court for the division of property.
(2)However, an application for the division of property may only be made if—
(a)     the applicant or respondent is resident in the State when the application is made; and
(b)     the applicant and respondent were resident in the State for the whole or a substantial part of the period of the relationship; and
(c)     the domestic partnership existed for at least 3 years or there is a child of the domestic partners.
(3)An application for the division of property must be made within one year after the end of the domestic relationship unless the court, after considering the interests of both domestic partners, is satisfied that extension of this period of limitation is necessary to avoid serious injustice to the applicant.
(4)An application for the division of property may be made or continued by or against the legal personal representative of a deceased domestic partner.
(5)However, an application against the legal personal representative of a deceased domestic partner may only relate to property that is undistributed at the date of the application.
10—Power to make orders for division of property
(1)On an application for the division of property after the end of a domestic partnership, the court may make such orders as it considers necessary to divide between the domestic partners the property of either or both partners in a way that is just and equitable.
(2)For example, the court may make orders for—
(a)     the transfer of property from one domestic partner to the other; or
(b)     the sale of property and the division of the net proceeds between the domestic partners in proportions decided by the court; or
(c)     the payment by one domestic partner of a lump sum to the other.
11—Matters for consideration by court
(1)In deciding whether to make an order for the division of property under this Part, and if so the terms of the order, the court—
(a)     must consider the financial and non-financial contributions made directly or indirectly by or on behalf of the domestic partners to—
(i)the acquisition, conservation or improvement of property of either or both partners; or
(ii)the financial resources of either or both partners; and
(b)     must consider the contributions (including homemaking or parenting contributions) made by either of the domestic partners to the other partner or to children of the partners or either of them; and
(c)     must have regard to the terms of any relevant domestic partnership agreement; and
(d)     may have regard to other relevant matters.
(2)If a relevant domestic partnership agreement—
(a)     is a certified domestic partnership agreement; and
(b)     provides for the exclusion of the court's power to set aside or vary the agreement,
an order for the division of property under this Part must be consistent with the terms of the agreement.
12—Duty of court to resolve all outstanding questions
In proceedings under this Part, the court must (as far as practicable) finally resolve questions about the division of property between the domestic partners and avoid further proceedings between them.
In s 3 of the Act, “domestic partner” is defined as follows:
domestic partner means a person who lives in a close personal relationship and includes –
(a) a person who is about to enter a close personal relationship; and
(b)a person who has lived in a close personal relationship;
The definition of “close personal relationship” in s 3 is:
close personal relationship means the relationship between 2 adult persons (whether or not related by family and irrespective of their gender) who live together as a couple on a genuine domestic basis, but does not include –
(a)the relationship between a legally married couple; or
(b) a relationship where 1 of the persons provides the other with domestic support or personal care (or both) for fee or reward, or on behalf of some other person or an organisation of whatever kind;
Note –
Two persons may live together as a couple on a genuine domestic basis whether or not a sexual relationship exists, or has ever existed, between them.
Establishing an Entitlement
In order to establish an entitlement to a division of property by the Court under the Act, the plaintiff must prove, on the balance of probabilities, that she and the defendant were in a close personal relationship, within the meaning of s 3 of the Act, for at least three years.
In Taddeo v Taddeo,[3] Judge Nicholson (as he then was), discussed the meaning of the term “close personal relationship” in the Act:[4]
The definition of “close personal relationship” is broad enough to encompass and is intended to encompass conventional de facto relationships and same sex partnerships involving a romantic element. However, the definition is clearly intended to go further than this. So much is plain from the words of the definition itself and from the parliamentary debates conducted at the time the Act was amended so as to extend its operation and to change its name from the previous De Facto Relationships Act 1996, as of 1 June 2007.
[3] [2010] SADC 61.
[4] At [62].
In relation to what constitutes living together “as a couple”, Judge Nicholson said:[5]
The more difficult issue is that in element (iii); whether or not the plaintiff and the defendant lived together “as a couple”. This notion of “as a couple” is intended to exclude situations such as that of flat mates in shared housing. The notion of “a couple” makes sense when considering the possibility that two persons sharing a house may, in fact, be in a de facto type relationship whether between different sex or same sex partners and whether or not a sexual relationship exists or ever existed. That is because, typically, persons in this type of relationship will have come from a position of independence, or dependence on or mutual dependence with some other person (perhaps a family member or a previous relationship) to voluntarily join together with another such person to form a new relationship of mutual support and dependence – as “a couple”.
[5] At [67].
Judge Nicholson discussed the history of the legislation and the term “close personal relationship” and said:[6]
The underlying purpose of the legislation in its present form is to provide for a just and equitable division of property following the premature termination of a “life-partner relationship”, to pick up the term used by the Attorney-General in his second reading speech, that is, again to use the Attorney-General’s words, a relationship between “two adults who live together in an enduring personal relationship of mutual affection and support whether or not the relationship is sexual”.
[6] At [77].
Judge Nicholson referred to a decision concerning the equivalent legislation in NSW[7] and said:[8]
[7] Property (Relationships) Act 1984 (NSW) discussed in Ye v Fung [2006] NSWSC 243.
[8] At [79]-[80].
In my view, the South Australian notion of “close personal relationship” with its focus on living together “as a couple” is intended to be closer in concept to that of a de facto relationship (albeit, absent the need for any “romantic” element) than is the New South Wales concept of “close personal relationship.”
Under the old law, the authorities in this area tended to look at the following list of factors or considerations when determining whether a de facto relationship had existed between the parties.
(i)The duration of the relationship;
(ii)The nature and extent of common residence;
(iii)Whether or not a sexual relationship existed;
(iv)The degree of financial interdependence, and any arrangements for support, between or by the parties;
(v)The ownership, use and acquisition of property;
(vi)The procreation of children;
(vii)The care and support of children;
(viii)Performance of household duties;
(ix)The degree of mutual commitment and mutual support;
(x)Reputation and “public” aspects of the relationship.
These factors, as being relevant to the existence or other wise of a de facto relationship, are not to be regarded as exhaustive. In my view, they remain a helpful guide to the question of whether or not a “close personal relationship” exists on particular facts. However, they are not to replace an application of the statutory definition as properly construed.
The decision in Taddeo v Taddeo[9] is an accurate statement of the present law in South Australia.
[9] [2010] SADC 61.
If a domestic partnership is shown to have existed, and to have ended, then the court may make orders redistributing the property of either or both partners in a way that is just and equitable.
Unless it is relevant to the question of whether a domestic partnership existed, or to the assessment of whether it is just and equitable to redistribute property, the behaviour of the parties during the relationship is generally not relevant. Blame or fault for the breakdown of the relationship is not relevant to the exercise of the discretion under s 11 either.[10]
[10] F v R [2012] SADC 84 at [21]-[22].
Disputes
There is a dispute on the facts in this matter about whether a “domestic partnership” within the meaning of the Act existed for a period of three years as required pursuant to s 9(3) or at all. The plaintiff claims that a domestic partnership existed from about July 1994 to January 2008. The defendant’s case is that he and the plaintiff never had a domestic partnership. There is also a dispute about the extent of the financial and non-financial contributions made by the plaintiff to the acquisition, conservation and improvement of property and to the financial resources of the defendant. In the event that it is found that a “domestic partnership” did exist, there is a dispute as to whether the plaintiff is entitled to any order pursuant to the Act.
Credibility
The plaintiff was evasive and inconsistent in her evidence, particularly under cross-examination. Her answers were often crafted to evade the question and embark upon a self serving argument. She attempted, with scant basis, to paint the defendant as an abusive, violent man with issues with alcohol and gambling. She attempted to paint herself as a victim. She exaggerated her participation in and contribution to household and other matters.
The defendant’s evidence contained some inconsistencies, which, I accept, were the result of the long time span over which he was asked to recall incidents. It seemed to me that, on the whole, the defendant gave truthful evidence to the best of his ability.
Prior to March 1994
The Defendant
The defendant was born in 1958.
After leaving school, the defendant worked as a salesman in various contexts. He married in 1984 and purchased his first home. In 1985, the defendant completed a qualification in marketing and began working as a car salesman. Also in 1985, the defendant and his wife bought an investment property. They bought a further investment property in 1986. In 1988, the defendant and his wife sold their three properties and purchased a house in Kensington Gardens. In 1990, the defendant and his wife were divorced. The defendant moved in with his mother and sister at his mother’s house in Croydon Park. The defendant and his wife arrived at a property settlement which resulted in the defendant retaining the Kensington Gardens property. The defendant continued to be the owner of that property until 1993, when he sold it and purchased a property at Dulwich (hereinafter referred to as No 15). No 15 was purchased for $250,000 and the defendant mortgaged it for a loan of $110,000.
The Plaintiff
The plaintiff was born in 1961.
The plaintiff completed a Bachelor of Arts and a Diploma of Education in New South Wales after her secondary schooling. She then undertook some units towards a hospitality certificate at a TAFE college in the Blue Mountains, NSW. She began working at a resort in that location. She then moved to a hotel in Wollongong followed by a hotel in Sydney, where she was the director of training and personnel. From there, in September 1992, she was promoted to the position of area human resources manager, with responsibilities over four hotels; two in Adelaide and two in Perth.
In February 1989, the plaintiff was driving her car from Wollongong to the Blue Mountains when she had an accident. Her car rolled and hit a fence and a tree. No other vehicle was involved. She was in hospital for two weeks after the accident. In evidence,[11] the plaintiff said that she fractured her pelvis, her ribs and her sternum and sustained damage to her spine and various organs together with cuts and abrasions. She recouperated at home for six months after her hospitalisation. After that, she returned to work, presumably in the latter part of 1989. The plaintiff gave evidence that she had, and continues to have, ongoing health problems arising from the car accident in 1989.[12] In particular, the plaintiff said that she experienced and continues to experience migraine headaches arising from the accident.
[11] Transcript pp 36-37.
[12] Transcript p 38.
In 1992, the plaintiff came to live in Adelaide as a result of being promoted to area human resources manager with the hotel company for whom she worked. The plaintiff moved to Adelaide in September 1992 and began living, alone, in an apartment that she rented in North Adelaide.[13] In evidence the plaintiff said that, at this time, her health was “not good”, but that she “managed my health outside of work hours but had instructions with staff if they found me collapsed on the floor or in a particular state of unwellness, what to do insofar as First Aid”.[14]
Relationship
[13] Transcript p 46.
[14] Transcript p 38.
March 1994- 26 December 1995
The plaintiff and the defendant met in March of 1994 when the plaintiff visited the defendant’s workplace as part of a practical exercise which was required of her in a sales course she was undertaking. The defendant was then living in Croydon, with his mother, and the plaintiff was living in rented premises in North Adelaide. Shortly after they met, the plaintiff and the defendant began to see each other socially. The plaintiff invited the defendant to his family’s celebration of Greek Easter in 1994. It was common ground that a sexual relationship developed between the plaintiff and the defendant in 1994. However, it was the defendant’s evidence that he also maintained contact with a girlfriend who had moved to Newcastle NSW, whom he visited in Newcastle on several occasions.[15] He also gave evidence that he went out with a few other women in 1994.[16]
[15] Transcript p 487.
[16] Transcript p 486.
In May of 1994, the plaintiff’s employer commenced discussions with the plaintiff which led to her negotiating six months paid leave. The defendant assisted the plaintiff with this process.[17] The sum paid to the plaintiff by her employer was $22,048.[18]
[17] Transcript p 49.
[18] Transcript p 159.
In August 1994, the plaintiff raised the issue of marriage with the defendant, but the defendant did not take the matter up.[19]
[19] Transcript p 50.
After the period of the plaintiff’s paid leave had ended, the plaintiff’s employer terminated her employment.
In 1994, the plaintiff was a marker for one month for the University of South Australia, in what she described as “the Human Resources Department”.[20] Apart from that, the plaintiff was unemployed for the remainder of this period.
[20] Transcript p 431.
The plaintiff’s evidence was that, at the time of the termination of her employment, the defendant was staying at the apartment in North Adelaide about five or six nights per week.[21] It is on that basis that the plaintiff claims that she was living in a domestic partnership with the defendant from June of 1994. The defendant denied this. His evidence was that he would stay overnight at the apartment infrequently and for no more than two nights in a row.[22] He did not consider himself to be living at the apartment.[23] In cross examination, the plaintiff agreed that, in 1994, one co-worker stayed with her for several weeks and another stayed for several nights. The plaintiff said that the co-worker who stayed for several weeks “may have” contributed to expenses.[24] The plaintiff’s parents also visited her and stayed, and a friend of the defendant’s stayed for a few weeks.[25]
[21] Transcript p 53.
[22] Transcript p 490.
[23] Transcript p 489.
[24] Transcript p 157.
[25] Transcript p 432.
The plaintiff gave evidence that she was asked to apply for a position in hospitality in Hong Kong at about this time, but the defendant persuaded her not to.[26] The defendant flatly denied ever being told anything about a prospective position in Hong Kong for the plaintiff.[27]
[26] Transcript pp 44-45.
[27] Transcript p 594.

It was the plaintiff’s evidence that, in January 1995, the plaintiff applied for Centrelink payments, but her application was refused on the grounds that she was in a relationship with a person who earned a substantial income.[28] It was the plaintiff’s evidence that, when she told the defendant about that, he began to pay her rent. In cross examination, the plaintiff agreed that the defendant also paid some of her expenses at the apartment.[29]
[28] Transcript p 53.
[29] Transcript p 169.
The plaintiff did not earn an income during 1995. In February she had day surgery to remove material embedded in her head from her car accident in 1989. It was her evidence that her mental health deteriorated during 1995 and she consulted a psychiatrist and a psychologist.
The plaintiff gave evidence that the defendant made a series of promises to her at this time, and contemplated a future with children. The defendant denied this, and said that he expressly told the plaintiff that he had been married once, and that was enough.[30]
[30] Transcript p 605.
On 3 August 1995, the plaintiff flew to Sydney, stayed there for a couple of nights, and then went to Japan. She was away from South Australia until 8 September 1995. The defendant did not accompany her. In cross examination, she said that her mother and brother paid for her trip.[31] At the time, her brother was living in Japan. At some point in her trip, she telephoned the defendant and informed him that she was pregnant, and that he was the father of the child.[32] This was a surprise to the defendant. The pregnancy was unplanned. When she returned to South Australia, she had an abortion. This was not the defendant’s preference, and was contrary to his religious beliefs. However, he respected the plaintiff’s right to make the decision.[33]
[31] Transcript p 163.
[32] Transcript p 164.
[33] Transcript p 495.
It was the defendant’s evidence that, following the abortion, in his mind any boyfriend/girlfriend relationship that he may have had with the plaintiff was over.[34] The defendant gave this evidence:[35]
QLet me ask you this: after you had brought her home from the hospital, did you want to continue your association with her.
ANo.
QDid you make that clear to her.
ADid I make it clear? Probably not. I felt a responsibility towards her.
QAfter you brought her home from the hospital, did you ever have sexual relations with her.
AIf at all, probably once. Maybe in ‘96, I’m not sure. But if you’re asking me if we had continual sex, the answer is no.
[34] Transcript p 496.
[35] Transcript p 496.
The plaintiff, in her statement of claim, asserts that the defendant owes her $10,000 “used to pay bills at the commencement of the relationship”. The defendant, in evidence, flatly denied that he owes $10,000 to the plaintiff. He said that, to his knowledge, the plaintiff did not have $10,000 at the commencement of their relationship.[36] I reject the plaintiff’s evidence on this issue. Apart from her bare assertion, there is no evidence whatsoever that the plaintiff paid $10,000, or any other amount, to pay bills which had any connection with the defendant.
[36] Transcript p 593.
Conclusion about March 1994 to 26 December 1995
In relation to the period from March 1994 to December 1995, I find that the plaintiff and the defendant were living in separate premises; the plaintiff at North Adelaide and the defendant with his mother and sister at Croydon Park. I accept the evidence of the defendant in this respect and I reject the evidence of the plaintiff. The defendant stayed overnight in the North Adelaide flat from time to time in the context of a girlfriend/boyfriend relationship which fell well short of constituting a “close personal relationship” within the meaning of the Act. The plaintiff and the defendant did not “live together” during this time and nor were they sufficiently committed to each other to be a “couple” in the relevant sense.
No 15/Unley/Sydney
27 December 1995 – 4 July 1996
In late December 1995 the plaintiff and the defendant moved into No 15 together. It was the plaintiff’s case that they did so as partners. It was the defendant’s case that he invited the plaintiff to stay at No 15 because she was in poor health, she had no money, she had recently had an abortion, he thought she might be suffering from depression and he felt responsible for her.[37] It was the defendant’s case that he and the plaintiff had separate bedrooms at No 15. It was the plaintiff’s case that they shared a bedroom.
[37] Transcript pp 495-496.
It was the plaintiff’s evidence that, when they moved into No 15, the defendant had a wardrobe and a bed, and an outside table and four chairs. Her evidence was unclear as to what furniture she contributed.
Following her motor vehicle accident in 1989, the plaintiff’s driver’s licence had been cancelled. She was able to obtain a drivers licence once more on 5 January 1996. Subsequent to that, the defendant provided her with the use of a Ford Fairlane.
It was the plaintiff’s evidence that during this period of time the defendant told her repeatedly that he would support her and that she was his partner and that they were “in a committed relationship”.[38] The plaintiff also gave evidence that she and the defendant would argue about money. She said:[39]
From the moment I stopped working disputes started about money and I didn’t have access to any of his accounts. He would always tell me not to worry about it, but then would tell me that we’ve spent too much money and I had no idea what he was talking about. He would give me money. Sometimes he would tell me to put things on credit card. Sometimes he would tell me that we would go shopping together. It was very confusing.
[38] Transcript p 64.
[39] Transcript p 65.
Throughout this period, the defendant was employed as a car salesman and earned a six figure salary.
The plaintiff said that, at the end of 1995 she had $8,000 in an investment account and $10,000 in a superannuation fund. She said that she had an additional $5,000, which was what remained of the payment associated with the termination of her employment, and $100 in a bank account. The plaintiff said that the $5,000 “went to” the defendant to contribute to living expenses.[40] The defendant’s evidence was that the plaintiff did not make any contribution to the living expenses of either of them, and that he paid all of the expenses for both of them.[41] I accept the defendant’s evidence.
[40] Transcript p 66.
[41] Transcript p 500.
In February 1996 the plaintiff and the defendant went on a trip to the USA together. It was a work related trip for the defendant. It was the plaintiff’s evidence that the defendant gambled and lost all of the spending money they had for the trip on the first night.[42] In cross examination, the plaintiff agreed that, following this trip, she stayed in Sydney from 21 February 1996 to 3 March 1996, whilst the defendant flew back to South Australia.[43] The defendant said that he took the plaintiff on this trip because he was concerned about her. He said that, at No 15, she was in bed when he left for work in the morning and in bed when he returned home at night.[44] He said that, during the trip to the USA, the plaintiff and he shared a hotel room, but one of them slept in the bed and the other on a couch/bed.[45]
[42] Transcript p 67.
[43] Transcript p 180.
[44] Transcript p 503.
[45] Transcript p 504.
It was the plaintiff’s evidence that she and the defendant frequently socialised as a couple with friends and family in 1996. On the basis of the evidence of the defendant’s friend, PA1, and the defendant’s neighbour, BA, I find that the plaintiff and the defendant did socialise together to some extent during this period. They also socialised separately. It was the plaintiff’s evidence that she did the shopping for the household, sometimes with the defendant, and that she did the cooking, the dishwashing the ironing and the cleaning.[46] The plaintiff’s evidence was that the defendant told her it was “woman’s work”.[47] The plaintiff said that she did some gardening; “flowers and shrubs”, but that a contractor mowed the lawn.[48] The defendant’s evidence was that the plaintiff was not able to do domestic chores, and that she slept on a mattress in her room practically all of the time.[49] Extracts from the plaintiff’s diaries for 1996 were put to her in cross examination. They indicated that the plaintiff slept a great deal during the day in 1996.[50] In relation to the question of the performance of domestic chores, I prefer the defendant’s evidence.
[46] Transcript pp 70-71.
[47] Transcript p 71.
[48] Transcript p 71.
[49] Transcript p 500.
[50] Transcript pp 184-194.
5 July 1996 – 6 October 1996
The following exchange took place in the cross examination of the plaintiff:[51]
[51] Transcript pp 184-185.
QNotwithstanding these walkings out and that sort of thing, you were still in a de facto relationship with Mr Odontiadis as at 30 June ’96.
AYes, I was.
QYou weren’t just there because he had offered for you to stay there until you got back on your feet.
ANo.
QThat would be quite wrong, wouldn’t it.
AYes.
QYou continued to stay there, did you, for the rest of ‘96.
AYes, we continued the relationship, yep.
QAnd continued to –
ATo be there together.
Q– sleep in the same bed.
AYes.
QAnd make love.
AYes.
QFor the second half of ‘96.
AYes.
QSure about that.
AYes.
QContinued to do all his washing for him.
AYes.
QIn the latter half of ‘96.
ADid it the entire time we’ve been together.
QAnd all his ironing, did you do that in the last six months of ‘96.
AYes.
QAnd all the cleaning of the house for him and you in 1996, the latter half of ‘96.
AYes, I did.
The plaintiff kept detailed diaries until 2006. Refreshing her memory from her diary in cross-examination, subsequent to giving the answers set out above, the plaintiff agreed that she stayed with her mother in Sydney from 5 July 1996 to 6 October 1996. She asserted, though, that she was in constant contact with the defendant throughout this time. The plaintiff’s lack of frankness in examination in chief indicates that she was selectively providing information in an attempt to bolster her case.
7 October 1996 – 22 January 1997
The plaintiff returned to No 15 in October of 1996.
The defendant’s name day is 7 January. He was in the habit of celebrating it each year by inviting his family and friends to a barbeque at his home. The plaintiff gave evidence that she “did all the preparation” for 100 people for the defendant’s name day in 1997, but that he was rude and abusive to her at the function. She said that she left a week after that day, on 22 January 1997, and stayed with a friend in Unley for “a couple of months”.[52]
[52] Transcript p 73.
The defendant said that he hosted a function for his name day most years. He said that his niece’s husband and his friend, T, and often others would help him set up.[53] He recalled the plaintiff making salads for his name day “in the early years”.[54]
[53] Transcript p 599.
[54] Transcript p 600.
23 January 1997 – Jan/Feb 1998
In examination in chief, the plaintiff gave evidence which created the impression that she left No 15 in January 1997 for “a couple of months”.[55] She said that, during that period of time, she stayed sometimes with a friend in Unley and sometimes with the defendant.[56] The plaintiff conceded for the first time that there was a break in her relationship with the defendant in January, February and March of 1997 whilst under cross examination.[57] She then conceded that she remained staying with her friend, Dorothy, in Unley, for all of 1997.[58] The plaintiff insisted in cross examination that she still slept at No 15 from time to time and was still “in a relationship” with the defendant. The plaintiff’s lack of frankness about this period of time in examination in chief, again, adversely affects her credibility. I do not believe that the plaintiff stayed at No 15 during this period. There is no doubt, and the defendant agreed, that he and the plaintiff stayed in contact.[59] They did not, however, live together.
[55] Transcript p 73.
[56] Transcript p 78.
[57] Transcript p 196.
[58] Transcript p 198.
[59] Transcript p 636.
In March 1997, the defendant went overseas with his uncle.
On 11 June 1997, the defendant purchased a further residential property, which I will refer to as No 11, at auction. The plaintiff was present at the auction, at the invitation of the defendant.
It was common ground that the plaintiff helped the defendant to renovate No 11 by helping him choose internal fittings, paint colours, tiles, taps and the like.[60] It was also common ground that the defendant paid for the entire renovation.[61] In her evidence, the plaintiff made much of her contribution to the renovation of No 11 and No 15. It emerged clearly, however, that she did not perform any of the renovation work and neither did she pay for it. Her contribution was confined to sourcing some items and occasionally dealing with subcontractors.[62] The plaintiff admitted in cross examination that she did not, at any time, contribute toward the mortgage on either No 11 or No 15.[63]
[60] Transcript p 77 and p 511.
[61] Transcript p 78.
[62] Transcript p 81.
[63] Transcript p 248.
The defendant gave evidence that he employed a co-worker to help him with some of the landscaping and paving for the renovations. He engaged and paid painters, plumbers and tilers. He paid his brother in law and his brother in law’s cousin to do some labouring work. He engaged and paid his cousin’s ex‑husband, who is a plasterer and ceiling fixer.[64] In August 1997, the defendant resigned from his employment and spent several months physically working on the renovation of the houses at No 11 and No 15.
[64] Transcript p 512.
The plaintiff stayed with her mother in Sydney from 28 August 1997 to 17 September 1997. The plaintiff again stayed with her mother in Sydney from 19 December 1997 to 14 January 1998.
Conclusion about No 15/Unley/Sydney, 27 December 1995 to February 1998
I find that the defendant lived at No 15 from 27 December 1995 to February 1998.
I find that the plaintiff lived at No 15 for a period of about 6 months from 27 December 1995 to 5 July 1996. She then lived in Sydney with her mother for three months from 5 July 1996 to 6 October 1996. She lived at No 15 again for the three months from 7 October 1996 to 22 January 1997. For the year from 22 January 1997 to February 1998, the plaintiff lived in Unley with a friend called Dorothy, apart from the times that she stayed, again, in Sydney, with her mother.
The plaintiff and the defendant were not living in a close personal relationship within the meaning of the Act for any of the period between 27 December 1995 and 5 July 1996. I accept the defendant’s evidence that there was no sexual relationship between them throughout this time. I accept the defendant’s evidence that, in his mind, at this time, any romantic relationship between them was over in the wake of the abortion. From 27 December 1995 to 5 July 1996 and from October 1996 to 22 January 1997, the defendant was providing the plaintiff with a place to stay, and covering her living expenses, out of a sense of responsibility arising from her pregnancy and, it seemed to him, the breakdown in her mental health following her abortion. The plaintiff and the defendant were not, even when they were co-habiting at No 15, living together as a couple on a genuine domestic basis. There was no mutual commitment. There was no mutual support. This was not a life partner relationship. The defendant was simply providing the plaintiff, who was then unemployed and unwell, with accommodation when he believed that she could find no other suitable place to go. In any event, the total period of co-habitation by the plaintiff and defendant at No 15 from 27 December 1995 to February 1998 was only nine months, in two separate periods of six months and three months.
Melbourne
February 1998 – February 2001
By January 1998, I find that No 11 was mostly renovated. On 29 January 1998, the defendant left Adelaide and went to work in Melbourne on a one year contract. At some time in early 1998, with the defendant’s permission, the plaintiff moved in to No 11 and began living there without paying rent. The defendant explained this by saying that he felt responsible for the plaintiff and was concerned about the impact upon her of the circumstances in which she was then living.[65] He said:[66]
I went to visit her, she wasn’t well, she was in a small almost cubicle upstairs in this lady’s house and I was concerned because the lady in question, the lovely lady, in conversation with the plaintiff and myself, she talked to dead people and I was concerned for the plaintiff’s mental health.
[65] Transcript p 636 and p 667.
[66] Transcript p 636.
The defendant needed someone to take care of the dog, and to be at the house whilst the renovation was completed with some gardening, the erection of a fence and the hanging of some curtains.[67] I accept that these things were all that remained to do in relation to the renovation. In her evidence, the plaintiff implied that there was more but I prefer the defendant’s evidence on this issue. The defendant made a car available for the plaintiff’s use and covered her living expenses. He allowed her the use of a Bank SA debit card linked to his bank account and a gold American Express card linked to his American Express credit account.[68] The plaintiff said, in cross-examination, that she had a Mastercard in her own name, but that the defendant paid for her living expenses, including paying off the card, when they were together.[69]
[67] Transcript p 517.
[68] Transcript p 131.
[69] Transcript p 247.
It was evident from the extracts of the plaintiff’s 1998 diary, which were put to her in cross examination, and the plaintiff admitted, that she slept a great deal during the day throughout 1998 and subsequent years. The plaintiff said that this was part of her medical condition.[70]
[70] Transcript p 217.
No 15 was rented out in March of 1998. It was managed by an agent. The plaintiff answered the occasional query from the tenants and referred them to the agent. It was the plaintiff’s evidence that the agent’s role was terminated whilst the defendant was in Melbourne, and that she then took on a larger role. She said:[71]
AI organised – sorry, in between tenants vacating the premises as new ones were coming in, at various time I cleaned the premises, washed curtains, windows, walls, cleaned the pool, did the garden, did minor repairs or got assistance from a tradesman that [the defendant] organised.
QCan you give us an example of what sort of repair you did.
AI helped repair a flyscreen at the window in one of the upstairs bedrooms of No 15.
QWho did you help.
AI helped the handyman. I think his name was Steve.
[71] Transcript p 137.
I find that the plaintiff’s contribution to the conduct of No 15 at as a rental property was slight.
The defendant’s contract in Melbourne was extended twice, so that he lived in Melbourne for three years continuously. The plaintiff’s evidence about the number and duration of visits to Melbourne during those three years was unclear.
The plaintiff’s diaries record that she visited Melbourne on three occasions in 1999. The first two visits were for a couple of days each. The second visit was a stage in a driving trip to Sydney to see specialists in relation to the legal claim associated with her car accident in 1989.[72] The third visit lasted six days, and included the plaintiff and the defendant attending the Melbourne Cup together.
[72] Transcript p 226.

In 1998, the defendant lived in a flat in South Yarra, Victoria. In 1999 and 2000, the defendant lived in an apartment in Port Melbourne, Victoria. The defendant shared the Port Melbourne flat with another man, who only stayed in the flat for about three days per fortnight. The defendant gave evidence, which I accept, that he went out with many women in Melbourne, and had one relationship which lasted for more than six months.[73] A letter from the defendant to the plaintiff which clearly dates from early 1999 was tendered in evidence.[74] It is in affectionate terms.
[73] Transcript p 521.
[74] Exhibit P37.
The defendant’s recollection was that the plaintiff visited him about twice in 1998 and on a handful of occasions in 1999-2000.[75] He thought that he and the plaintiff shared a bed once in the South Yarra flat in 1998. His evidence was that they never shared a bed in Port Melbourne.[76]
[75] Transcript p 518.
[76] Transcript pp 519-520.
The defendant also visited Adelaide approximately once a month when he was living in Melbourne. He would stay at No 11 when he did so. He would use the Ford Fairlane.[77] In early 1999, he sold the Ford Fairlane and bought a new Ford Mondeo, which he allowed the plaintiff to use whilst he was in Melbourne, and which he used when he visited South Australia.[78]
[77] Transcript p 522.
[78] Transcript p 524.
Conclusion about Melbourne February 1998 to February 2001
I find that, for the period from February 1998 to February 2001, the plaintiff and the defendant were not parties to a domestic partnership with each other within the meaning of the Act. They were not living together in a close personal relationship for any part of that time. Where their evidence diverges, I prefer the evidence of the defendant. To be clear, I do not consider that the visits which the plaintiff paid to the defendant in Melbourne, combined with the visits that the defendant paid to No 11, combined with frequent telephone communication, in all of the circumstances, constituted “living together” within the meaning of the Act. The plaintiff and the defendant were not “a couple” during this time. There was no mutual commitment; the defendant openly behaved consistently with his view of himself as a single man. There was no apparent serious impediment to the plaintiff and the defendant living together in Melbourne during this period, had they both wished to do so.
February 2001 – 24 January 2008
In February 2001 the defendant returned to Adelaide and lived at No 11. He resumed working in Adelaide as a car salesman.
The plaintiff, in evidence, claimed that, at No 11, although her furniture was in a bedroom referred to as “the blue room” and the defendant’s bedroom furniture was in a bedroom referred to as “the green room”, nevertheless, she and the defendant slept in the same bedroom, moving between the blue room and the green room.[79] The defendant’s evidence was that the plaintiff slept in the blue room and he slept in the green room and that there was no sexual relationship between him and the plaintiff whatsoever after about 1998.[80] I accept the defendant’s evidence on this point. The defendant said that he considered the plaintiff to be a friend who needed help, and he was in a position to help her, so he did so.[81] It seems that there were times when they co-habited quite companionably. At other times, there was conflict.
[79] Transcript p 82.
[80] Transcript p 524.
[81] Transcript p 672.
Early in 2001, the defendant went, again, on a business trip to the USA. The plaintiff went with him. It was the plaintiff’s evidence that she went as his partner.[82] The defendant said that he allowed her to go because she was insistent, and that they slept separately throughout the trip.[83] Upon their return to Australia, the defendant remained in Melbourne for several weeks, while the plaintiff returned to Adelaide.[84]
[82] Transcript p 239.
[83] Transcript p 524.
[84] Transcript p 312.
An exercise book was tendered in evidence in the plaintiff’s case.[85] The first two pages in the book contain writing by the plaintiff entitled “Personal Agreement”. It is signed by the defendant and dated 2 June 2002. The writing is in twelve numbered paragraphs, most of which contain an undertaking as to future behaviour. The first paragraph says:
I am involved in this relationship of my own personal choice.
The eighth paragraph says:
I agree to be alcohol free and smoke free whilst communicating with my partner.
The twelfth paragraph says:
I agree to keep these agreements. I understand that failure to do so will result in the immediate termination of my relationship with [the plaintiff’s name] for all time.
[85] Exhibit P2.
Other pages of the book contain a one page “Integrity Checklist”, followed by a two page “To Do List”, all in the plaintiff’s handwriting. There follows pages of entries in the defendant’s handwriting, all apparently made in June and July of 2002, mostly listing things for which the defendant was grateful. The plaintiff said that this book was something that the defendant and she worked on together in an effort to improve their relationship.[86] The defendant said that he signed the “Personal Agreement” and made the entries about gratitude simply to keep the peace.[87] The defendant said:[88]
I was told to and to keep the peace, I did. You have got to understand that the plaintiff’s background is human resources and engaging people into doing things. I would be working all day. I would come home. I would be tired. She would not let go until she got what she wanted and I just wanted it to end, so I could go to bed. And these are the types of games and little things we had to do with, fishes and stars and butterflies, you know, that is not me.
[86] Transcript p 86.
[87] Transcript p 601.
[88] Transcript p 602.
After two months, the defendant simply refused to make entries in the book.[89]
[89] Transcript p 603.
On 5 March 2002, the plaintiff received a compensation payment in the sum of $82,081 in respect of her 1989 car accident. In examination in chief, the following exchange took place with the plaintiff:[90]
QHow did you spend that money over the next year or so.
AIt went towards living expenses for both of us. It went towards things for the houses, the dog; living.
[90] Transcript p 82.
At another point in her evidence in chief, the plaintiff said that she spent some of the money on “curtains and plants” for No 15 and for “pillows, sheets, some towels, a door knocker”.[91] By October 2003, all but $9,481 of the $82,081 had been spent. The plaintiff’s bank passbook for the account into which she had the compensation paid was tendered in evidence.[92] In cross examination, the plaintiff was asked to identify which of the withdrawals of money from her passbook account, subsequent to the payment in of the compensation money, were attributable to the payment of household expenses. She was unable to identify any.[93] She admitted that she had not paid any of it towards any of the mortgage payments for either property, and said that her now deceased solicitor at that time must have misunderstood her instructions when he included, in her claim, an allegation that she contributed towards mortgage payments.[94] The plaintiff agreed, eventually, that both No 11 and No 15 had been entirely renovated by the time she received the payment, so it is clear that she did not pay for anything associated with the renovations.[95] The defendant denied that the plaintiff ever paid anything towards the renovations or household expenses.[96] I believe the defendant on this issue.
[91] Transcript p 114.
[92] Exhibit P1.
[93] Transcript p 255.
[94] Transcript p 252.
[95] Transcript p 253.
[96] Transcript p 529 and p 642.
For a short time during this period, the defendant conducted his own used car business. In November 2002 the plaintiff paid the sum of $27,500 to the defendant. She said, in cross examination, at first, that this was to cover the cost of some cars that the defendant had purchased for his business, and she implied that she provided the funds to help the defendant in his business venture.[97] The plaintiff was taken to a copy of the defendant’s bank account statement for the period which included 13 November 2002. She conceded that she had, at the time, written on the defendant’s bank account statement:[98]
27,500 deposited by cheque 13 November 2002 into above account, money to be repaid with 10% interest in one month
with her signature following. She then explained this by saying that she had written it out of concern about the defendant’s gambling habits.
[97] Transcript p 255.
[98] Transcript pp 259-260.
The defendant’s evidence, which I accept, was that the plaintiff had requested that he make some money for her, by buying and selling cars, with an investment of $27,500. He did so, netting a profit of about $4,500. The defendant offered to give that profit to the plaintiff, together with her original investment, but she asked him to reinvest the money until she had enough cash to purchase “a prestige motor car of her dreams”.[99] The defendant’s evidence was that the plaintiff told him that she wanted a BMW or a Mercedes Benz. The defendant purchased a used BMW 520 for $38,750 on 28 February 2003.[100] He paid for it with the $27,500, plus the $4,500 profit, and about $6,750 of his own funds. He registered it in his own name, because he was unable to obtain the necessary information from the plaintiff to register it in her name at the time he went to register it, but he gave it to the plaintiff to drive.[101] The defendant’s evidence was that the plaintiff then drove the car, against his advice, before he had had the opportunity to take it to have a mechanical check. The plaintiff’s evidence was that no such advice was given to her. It is clear that the plaintiff drove the car. Repairs in the sum of $9,976.68, inclusive of GST, were then paid for by the defendant on or about 8 April 2003. I find that the plaintiff had the exclusive use of the car from the time the defendant purchased it until about April 2008, some two months after the plaintiff ceased living at No 11, when the plaintiff abandoned the car outside No 11.[102] During that five year period, the defendant paid for all repairs and maintenance of the car and for all fuel and other consumables. On 14 May 2009, the defendant sold the BMW for $13,950.[103]
[99] Transcript p 530.
[100] Exhibit D20 Tab 6.
[101] Transcript p 531.
[102] Transcript p 536.
[103] Exhibit D20 Tab 6.
The plaintiff initially gave evidence that she “did nearly ten years worth of [the defendant’s] tax returns over a period of a couple of months” in 2003.[104] As her evidence continued, however, it emerged that what she meant by that was that, from 3 to 16 April 2003, the plaintiff put the defendant’s paperwork into chronological order. The defendant then took the documents to his accountant, who actually prepared the tax returns.
[104] Transcript p 94.
From time to time the plaintiff attended courses in kinesiology. The plaintiff said, in evidence, that she had a certificate of kinesiology, a diploma in kinesiology and a certificate in neuro-linguistic programming.[105] Through her studies, she met a Mr B, who she described as a neuro-linguistic programming instructor. It was the plaintiff’s evidence that she and the defendant, “separately and together” had “relationship counselling sessions” with Mr B in 2003.[106] She said that she and the defendant discussed the outcome of these sessions and that the defendant told her that it was “of some benefit to him to go to those appointments”.[107] The defendant denied that he ever went to see Mr B alone. He agreed that he went to see Mr B on one occasion with the plaintiff, but said that he did not know that the purpose of the appointment was counselling for him.[108] The defendant thought that the purpose of the session was counselling for the plaintiff, who still had issues with respect to the termination of her pregnancy.[109] When Mr B asked him personal questions and sought to discuss his feelings about the termination with him, he was surprised and uncomfortable. He was angry with the plaintiff for arranging the appointment and misleading him about its purpose.[110] The defendant said that, shortly after the appointment, the plaintiff showed him a hatbox containing baby’s booties, a baby top and a Christening card and told him that she had named the terminated baby after the defendant’s father.[111] The plaintiff admitted compiling such things, but said she showed them to the defendant earlier.
[105] Transcript p 35.
[106] Transcript 101.
[107] Transcript p 102.
[108] Transcript p 696.
[109] Transcript p 595.
[110] Transcript p 597.
[111] Transcript p 597.
A number of cards written by the defendant to the plaintiff were tendered.[112] All are in affectionate or loving terms. Their probative value is limited, however, because they are undated. The plaintiff says that the defendant wrote her loving cards and poems from 1994 to 2007.[113] The defendant says that most of the cards were written in 1994-1995.
[112] Exhibits P9, P35 and P37.
[113] Transcript p 117.
On 20 February 2004, the plaintiff fell over at a city hotel and damaged her knee. Her injury required immediate surgery. She was required to pay for the surgery in advance. She did not have health insurance. She told the defendant that she did not have the funds to pay for the surgery. She said that she had spent all of the money from her car accident compensation. The plaintiff admitted, in cross examination, that she had said this to the defendant.[114] The plaintiff was then confronted with her bank account passbook for the relevant period, which showed that she actually had $8,454.56 in her bank account on 1 March 2004.[115] The defendant paid for the plaintiff’s surgery. He also paid for her subsequent treatment by a physiotherapist. The defendant estimated that the total cost to him of the plaintiff’s treatment in relation to her knee injury was approximately $15,000. Some of the receipts for his payment for her treatment were tendered, including the initial payment of $3,974 for the urgent surgery.[116] I accept the defendant’s evidence on this point. The plaintiff did not reimburse the defendant for any part of this expenditure. The plaintiff received a cheque for $60,197 (exclusive of legal costs and expenses) in September 2010 in settlement of her claim for compensation in respect of the injury to her knee.[117] It was the plaintiff’s evidence that she used this money “to live on and pay all of my expenses”.[118] No part of that payment was given to the defendant.
[114] Transcript p 269.
[115] Transcript p 271.
[116] Exhibit D20.
[117] Exhibit P7.
[118] Transcript p 112.
In July 2004, the defendant paid for both he and the plaintiff to join a private health fund.
In the financial year 2003/2004 the plaintiff worked part time at a florist shop. Her PAYG summary in relation to that employment showed that her gross pay for the financial year was $4,199. The plaintiff’s evidence was that the defendant did not like her doing this job because she sometimes arrived home later than he did.[119] The defendant’s evidence was that this was simply untrue. He described it as “poppycock”.[120] I prefer the evidence of the defendant to the evidence of the plaintiff in relation to this issue. The plaintiff’s evidence is inherently unlikely, given the investment that the defendant undisputedly made in trying to get her to work and earn an income.
[119] Transcript p 97.
[120] Transcript p 668.
In late 2004, the defendant ordered some furniture to be custom made by Sellicks of Unley. The furniture was made, and the defendant paid $47,000 for it. The plaintiff did not contribute to the cost of the furniture.[121]
[121] Transcript p 284 and Exhibit D20 Tab 12.
It was the plaintiff’s evidence that she had an operation after being diagnosed with cervical cancer in 2005. She said that she believes that she is now free of cancer.[122]
[122] Transcript p 117.
The defendant went to Thailand in March 2005 without the plaintiff.
In July 2005, the plaintiff began offering kinesiology sessions about one day per week from a room in a pharmacy in Norwood. She continued doing this for three and a half years.[123]
[123] Transcript p 92.
In early 2006, the defendant invested about $15,000 to establish the plaintiff in her own kinesiology business in the eastern suburbs.[124] The defendant paid the rent for the premises of this business for the entire time that the business existed, which was about twelve months. The business made a loss and the plaintiff brought it to an end just prior to Christmas of 2006.[125] Throughout this time, the plaintiff continued to offer kinesiology sessions at Norwood. Her tax returns show that the Norwood business also made a loss.[126]
[124] Transcript p 276.
[125] Transcript p 435.
[126] Transcript p 435 and p 442.
It was the defendant’s evidence that he asked the plaintiff to leave No 11 more than fifty times during the period from March 2001 to January 2008.[127] The defendant said:
The plaintiff kept saying that we were in a relationship and I kept saying we weren’t in a relationship, it takes two people, and over the years – I mean, the plaintiff was either sick or in bed or doing what she wanted to do and I was doing what I wanted to do and it wasn’t a good scenario. I felt uncomfortable in my own house.
[127] Transcript p 543.
The defendant said that he repeatedly offered the defendant financial assistance to move out, but she would get angry and then depressed and retreat into her room.
The plaintiff was asked about this numerous times in cross examination and gave a variety of responses. Eventually several of her diary entries were put to her, and she agreed that the defendant had “said it’s over” many times.[128] She added, though, that the defendant would subsequently apologise and retract his statement.
[128] Transcript p 368.
In evidence, the defendant said that he would frequently host a brunch for his nephews and his niece’s husband on Sundays. The brunches were referred to as “meatfests” because they would barbeque and eat many different kinds of meat. After the meal, the defendant and his guests would clean the house and do chores. The plaintiff would mostly remain in her room during these events.[129] The defendant’s nephew, NK, gave evidence that he attended these “meatfests” from about 2006 on a monthly basis. NK said that, after eating, he and his uncle and any other guest would vacuum the house, do general cleaning, clean the pool at No 15, and garden. The plaintiff would not take part in these occasions. Sometimes she would stay in her bedroom and sometimes she would leave the house.[130] The defendant denied that the plaintiff cleaned the house weekly. He referred to her diaries and said that she would clean once every three or four months. He said that he cleaned the house most weeks.[131] I prefer the evidence of the defendant on this issue.
[129] Transcript p 570.
[130] Transcript pp 775-776. See also the evidence of BV transcript p 800.
[131] Transcript p 647.
On 16 September 2005, a caveat was noted on the titles to No 11 and No 15 on the application of the plaintiff who instructed a solicitor to make an application on her behalf.[132] The plaintiff did not tell the defendant that she had lodged the caveat.
[132] Transcript p 288.
In November 2007 the plaintiff went to a Centrelink office and completed paperwork saying that she had separated on 26 November 2007. On that paperwork she also said that she had $5,000 worth of assets.[133] Centrelink provided her with payments from 28 December 2007.[134]
[133] Transcript p 303.
[134] Transcript p 388.
It was the plaintiff’s evidence that her diaries for 2007 and 2008 have been lost.[135]
[135] Transcript p 371.

The American Express credit card record shows that the plaintiff used the defendant’s credit card account on 22 and 23 January 2008 to purchase $2,300 worth of goods from Target, South Coast Lighting, David Jones Marion and Sheils Jewellers.[136] When questioned about these transactions in cross examination, the plaintiff said that she had purchased sheets, towels, a dinner set, saucepans and glasses. The plaintiff said that the Sheils Jewellers amounts were to repair a broken chain and purchase some jewellery cleaning products.
[136] Exhibit D20 Tab 13.
When the plaintiff left No 11 on 23 January 2008, both No 11 and No 15 were fully furnished. The furniture which had been custom made was at No 11. In evidence, the plaintiff said that she took the following items when she left:[137]
[137] Transcript pp 123-136.
·Her original bedroom suite comprising dressing table, chair, long mirror bedside table and wardrobes
·A new bedhead
·A new chest of drawers
·Her original fridge
·The washing machine
·Five full height bookcases
·A desk and desk chair
·Her original lounge and a new lounge
·A lounge chair and footstool
·Her own TV
·A small outdoor setting with two chairs
·A filing cabinet
·A whipper snipper and a vacuum lawn mulch blower
·An expresso machine
·A massage chair
·The dog
·The BMW motor vehicle
In cross examination, the plaintiff admitted that she took all of the furniture which had been custom made and for which the defendant had paid $47,000, except for two oval mirrors and a white chest of drawers.[138] A valuation as at 26 August 2013 of the furniture purchased by the defendant from Sellicks of Unley and taken by the plaintiff was tendered.[139] Mr Mathe, of Henley Valuers, valued the furniture at $6,760.
[138] Transcript p 300.
[139] Exhibit P29.
The defendant said, in evidence, that he had purchased the leather massage chair when he lived in Melbourne, and that he had paid about $3,000 for it.[140] The defendant also said that the plaintiff took gardening and handyman tools, the lawn mower and his collection of 30 to 40 vintage toy cars. The defendant said that he had bought the dog and paid all of her vet bills.[141]
[140] Transcript p 572.
[141] Transcript p 572.
It was common ground that the plaintiff did not inform the defendant that she intended to leave No 11 on 23 January 2008 and that she had engaged removalists to assist her. The defendant left for work that morning, but then discovered that he had left a set of keys that he needed at No 11. He returned to find “seven or eight or nine” people, including the plaintiff’s mother, removing items from his house. Then the removalists arrived.[142] He remonstrated with the plaintiff about what she was removing from the house, but the police arrived in response to a telephone call in which it was claimed that there was a domestic disturbance in the street involving a gun. The defendant was advised by the police to leave.
[142] Transcript pp 561-567.
In cross examination the plaintiff said that she went back to No 11 on several occasions after January 2008, but never went inside. She described one of those occasions:[143]
My mother drove me to the property and I put items carefully packaged and covered gently over the fence.
[143] Transcript p 293.
The defendant’s nephew moved in with him shortly after the plaintiff left. That nephew stayed with him until very recently.
Extension of Time
These proceedings were commenced on 27 January 2009. If a close personal relationship, within the meaning of the Act, existed between the plaintiff and the defendant leading up to the end of 2007, and the plaintiff is taken to have ended that close personal relationship on 26 November 2007, when she told Centrelink that her relationship had ended, then the commencement of the proceedings was more than a year after the end of the domestic partnership contrary to s 9(3) of the Act. In that event, the plaintiff applied for an extension of time. No extension of time is needed. I find that, if a close personal relationship existed at the relevant time, it ended on 23 January 2008. The plaintiff’s representations to Centrelink from time to time are simply a reflection of her belief or purported belief at those times. Those representations are not determinative of any issue.
Conclusion about February 2001 to 23 January 2008
The question of whether the plaintiff and the defendant were living in a domestic partnership from February 2001 to 23 January 2008 is quite finely balanced. They were living together, in the sense of occupying the same house, but were they “a couple” living “on a genuine domestic basis”?[144] With reference to the list of factors set out in Taddeo v Taddeo,[145] their co-habitation at No 11 lasted seven years and formed part of a complicated relationship stretching back to 1994. By 2001, their sexual relationship had been over for some years. The defendant gave the plaintiff free accommodation and paid her basic expenses. Despite receiving, on 5 March 2002, $82,081 in compensation in relation to her 1989 car accident, the plaintiff made no contribution to joint expenses of any kind. I accept the defendant’s evidence with respect to the contribution by the plaintiff of $27,500 plus the profit of $4,500 towards a BMW for her own use. The defendant paid $6,750 out of his own pocket towards the purchase of the BMW, together with $9,976.68 for the repairs. He also paid all the costs of keeping the BMW on the road. The plaintiff earned $4,199 gross at a florist in 2003/2004. There is no evidence that she used any of that money towards joint expenses.
[144] s 3 of the Act.
[145] [2010] SADC 61.
The defendant paid approximately $15,000 in medical expenses arising from the plaintiff’s knee injury in 2004. Thereafter he paid for the plaintiff’s private health insurance. He also paid $15,000 for the rent of the premises for her business.
The plaintiff was dependent, in a sense, upon the defendant, financially. There was, however, no financial interdependence. No property was purchased in joint names. There was no question of children or marriage after 1995.
The plaintiff performed some household duties from time to time, depending upon whether she felt that her health permitted it. I note that no medical evidence was provided about the state of the plaintiff’s health at this time. The defendant did not rely on the plaintiff to do the housework. He had a routine for doing it himself, or involving his nephew or niece’s husband.
I find that, during this period, there was no mutual commitment to a shared life. Rather, the defendant repeatedly asked the plaintiff to leave. His support for her, financially and otherwise, was directed at assisting her to regain her independence, which included leaving No 11. The defendant never considered his relationship with the plaintiff to be a life partnership.
As to the “public” aspects of the relationship, I accept that the plaintiff and the defendant, from time to time in this seven year period, ate dinner together at restaurants, but, for the most part, I accept the evidence of the defendant that they lived separate lives.
On balance, I do not consider that the plaintiff and the defendant lived together “as a couple” from February 2001 to 23 January 2008.
It is a pre-requisite for the making of an order under the Act that a domestic partnership has ended. Where, as here, there is no domestic partnership, there can be no order under the Act.
Had there been a domestic partnership from February 2001 to 23 January 2008
If I am wrong, and the plaintiff and the defendant were in a domestic partnership from February 2001 to 23 January 2008, then it would be necessary to consider those matters set out in s 11 of the Act which are relevant to this plaintiff’s claim; the financial and non-financial contributions of each party to the acquisition, conservation or improvement of property and financial resources of either or both of them and the contributions by such things as homemaking made by one to the other.
In F v R[146] Judge Smith set out a five stage process:
1.Identify and value the assets of the partners at the time of trial;
2.Evaluate the contributions of the partners to the acquisition, conservation, or improvement of property and to the financial resources of each other (s 11(1)(a));
3.Evaluate the contributions of the partners to each other and to the children including homemaking or parenting contributions (s 11(1)(b);
4.Have regard to other relevant matters (s 11(1)(d)); and
5.Make the appropriate Order or Orders.
[146] [2012] SADC 84 at [20].
On the plaintiff’s case, the defendant’s principal assets at the time of trial comprised two houses valued in sum at $1,602,500 and superannuation of $267,977. He had debts of $377,973. The plaintiff had assets comprising furniture valued at $6,760 and superannuation of $3,492. She had debts of $4,000.
Turning to step two of the process, I have found that the defendant made the entire financial contribution necessary for the acquisition, conservation and improvement of the property and he was solely responsible for generating his own financial resources. The defendant purchased most of the furniture which is now in the possession of the plaintiff. The plaintiff contributed to her own superannuation.
In step three, I find that the defendant either performed or arranged and paid for most of the housework, maintenance and gardening necessary for No 11 and No 15. The plaintiff’s contribution to “homemaking” in the period from February 2001 to 23 January 2008 was not significant, and was less than the defendant’s contribution. The defendant did not rely on any “homemaking” by the plaintiff.
In step four, I have regard to the fact that the defendant paid for the plaintiff’s living expenses, $15,000 in treatment expenses for her knee, her medical health insurance from July 2004, $15,000 for the rent for her kinesiology business and $47,000 for the furniture, most of which the plaintiff took, and $2,300 for the household items purchased by the plaintiff on his American Express card just before she left. Taking all of the circumstances into account, I do not consider that there is any outstanding obligation on the defendant’s part towards the plaintiff with respect to the BMW 520 in the context of the plaintiff’s claim under the Act.
If, contrary to my finding, there was a domestic partnership between the plaintiff and the defendant from February 2001 to 23 January 2008, having regard to the matters set out in s 11 of the Act, it would not be just and equitable to make any order in the plaintiff’s favour. The plaintiff has more than adequately been compensated for the contributions made by her during this period.
The plaintiff’s claim will be dismissed. I will hear the parties as to any consequential orders.