Chadwick v SVINGOS
[2009] SADC 65
•12 June 2009
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Application)
CHADWICK v SVINGOS
[2009] SADC 65
Judgment of His Honour Judge David Smith
12 June 2009
STATUTES
DE FACTO RELATIONSHIP
Preliminary point – whether there was in existence a de facto relationship within the meaning of the De Facto Relationships Act 1996 (SA) – discussion of what constitutes a de facto relationship – consideration of onus of proof - discussion of whether the required period of three years needs to be continuous or not - held following Wren v Chandler [2004] SADC 128 that periods of cohabitation can be aggregated and that the three year period required by s 9 of the said Act need not be continuous.
Held: that the plaintiff and the defendant were in a de facto relationship for no less than three years.
De Facto Relationships Act 1996 s 9, referred to.
D v McA (1986) 11 Fam LR 214; Roy v Sturgeon (1986) 11 NSWLR 454; Wren v Chandler [2004] SADC 128; Bozo v Krylyszn [2002] SADC 18; Briginshaw v Briginshaw (1938) 60 CLR 336, considered.
DAMAGES - GENERAL PRINCIPLES - EXEMPLARY, PUNITIVE AND AGGRAVATED DAMAGES
Action in tort for damages for a series of three assaults by the defendant upon the plaintiff who was his de facto spouse – discussion of principles upon which damages should be awarded for the respective assaults – discussion of whether, in addition to ordinary damages, aggravated and/or exemplary damages should be awarded.
District Court Act 1991 s 39, referred to.
Battiato v Lagana [1992] 2 Qd R 234 at 236; Lamb v Cotogno (1987) 164 CLR 1; Johnstone v Stewart [1968] SASR 142; Henry v Thompson [1989] 2 Qd R 412; XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448; Dibbins v Dibbins (1978) 80 LSJS 165; Thompson v Faraonio (1979) 24 ALR 1; Wheeler v Page & Harris (1982) 31 SASR 1; MBP (SA) Pty Ltd v Gogic (1990-91) 171 CLR 657, considered.
CHADWICK v SVINGOS
[2009] SADC 65Introduction
The plaintiff in this action claims to have been the de facto partner of the defendant within the meaning of the De Facto Relationships Act 1996 (SA) (“the said Act”) so makes an application for a property adjustment order pursuant to s 9 of the said Act. She also claims damages for a series of assaults alleged to have been perpetrated upon her by the defendant. The defendant applied to have the question of ‘whether the relationship in this matter was a de facto relationship within the meaning of the Act’ determined as a preliminary point. On the 25th September 2007, Master Bampton granted the application and referred this issue for determination.
My task, therefore, is to determine this preliminary issue. I will also decide the claims for damages for the alleged assaults.
Legal Requirements – Onus – De Facto Relationship
Section 3 of the said Act defines “de facto relationship” as follows:
"de facto relationship" means the relationship between a man and a woman, who although not legally married to each other, live together on a genuine domestic basis as husband and wife;
Powell J in D v McA[1] and Roy v Sturgeon[2] suggests that in determining whether a man and a woman are living “... together on a genuine domestic basis as husband and wife” the Court will need to make a value judgment having regard to a variety of factors relating to the particular relationship, such as:
[1] (1986) 11 Fam LR 214.
[2] (1986) 11 NSWLR 454.
·the duration of relationship;
·the nature and extent of common residence;
·whether or not a sexual relationship existed;
·the degree of financial interdependence, and arrangements for support;
·the ownership, use and acquisition of property;
·the procreation of children;
·the care and support of children;
·the performance of household duties;
·the degree of mutual commitment and mutual support; and
·reputation and ‘public’ aspects of the relationship.
Powell J was, in those cases, considering s 3(1) of the De Facto Relationships Act 1984 (NSW) which, in its material terms, is similar to s 3 of the said Act.
There are then a number of further statutory preconditions to an application for a division of property. Section 9 of the said Act specifies them:
Property adjustment order
9. (1) After a de facto relationship ends, either of the de facto 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 de facto partners were resident in the State for the whole or a substantial part of the period of the relationship; and
(c) the de facto relationship existed for at least three years or there is a child of the de facto partners.
(3) An application for the division of property must be made within one year after the end of the de facto relationship unless the court, after considering the interests of both de facto partners, is satisfied that extension of this period of limitation is necessary to avoid serious injustice to the applicant.
Accordingly, in addition to establishing the existence of the de facto relationship, the plaintiff must also prove the following formal requirements to qualify her to apply for a division of property:
·the plaintiff and the defendant must be resident in this State when the action is commenced (s 9(2)(a));
·the plaintiff and the defendant must be resident in this State for the whole or a substantial part of the period of the relationship (s 9(2)(b)); and
·the application must be made within one year after the end of the de facto relationship unless the Court extends that time (s 9(3)).
There was no dispute about these qualifying requirements. I will deal with those together with the primary referred preliminary issue.
Accordingly, the plaintiff must satisfy the Court that a de facto relationship existed for a period of at least three years. The standard of proof is the civil standard, namely proof on the balance of probabilities[3], with due regard to the seriousness of the issue to be decided[4]. There is an issue in this case about whether the three year period needs to be continuous or can be aggregated. Clayton DCJ in Wren v Chandler[5] addressed this issue and in the circumstances which prevailed in that case, aggregated the periods of cohabitation. I agree that, in appropriate circumstances, the period need not be continuous. I will return to this point in due course.
[3] See Bozo v Krylyszn [2002] SADC 18.
[4] See Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J at 362-3.
[5] [2004] SADC 128.
Application to determine Damages for Assaults
At the commencement of this trial I declined the plaintiff’s application to determine the claim for damages for various alleged assaults together with the preliminary point. However, on the trial of the preliminary point, the evidence relating to the alleged assaults was admitted because, quite apart from being an inextricable part of the history, it was relevant and admissible to prove the nature of the relationship between the parties. Because the same evidence was admissible in both claims it was desirable that I hear the claim for damages as well in order to avoid the risk of conflicting findings of fact, in the event of another judge hearing the assault claims. Notwithstanding that the trial of the preliminary point had concluded, I took the view that it was not too late to review my earlier decision. Accordingly, having given due notice to the parties of my intent, and having given the parties an opportunity to be heard as to whether I should take such a course, I determined to decide the claims for damages for the alleged assaults together with the preliminary point. I took further evidence and heard argument as to the damages claims on the 2nd June 2009.
The Claims and the Defences
The plaintiff alleges that she met the defendant in 1999. She said a relationship commenced in February 2000. Then shortly before her 17th birthday (ie 1st June 2000) she and the defendant commenced living in his newly acquired house at Kingswood. She contends that a de facto relationship, within the meaning of s 3 of the said Act, developed and though it was sometimes violent, it persisted with some breaks until May 2006 when it finally fractured. She accepts that, while she brought no assets to the relationship, she made contributions “directly and indirectly” within the meaning of s 11 of the said Act such as would entitle her to orders for division of property pursuant to Part 3 of the said Act. This later contention is not for determination now.
The plaintiff also claims damages for a series of assaults which she alleges were perpetrated upon her by the defendant between February 2004 and the end of the relationship in May 2006.
As to the existence of the de facto relationship, the defendant contends that it was not a de facto relationship as defined, but rather a five year “on again off again” casual sexual relationship between himself as a landlord and employer and the plaintiff as tenant and employee.
The defendant denies assaulting the plaintiff and instead alleges that it was the plaintiff who assaulted him.
Credibility and Reliability
The plaintiff was represented by counsel, Dr Salu. The defendant was unrepresented and, though there were impatient and rude outbursts at times, he competently contested this application. I make due allowance for him being unrepresented. It did not cause any failure to adduce relevant evidence. In particular, he took up my suggestions that he should give consideration to calling certain witnesses.
In the plaintiff’s case, I heard evidence from:
·the plaintiff;
·Daris Kenneth Chadwick (the plaintiff’s brother);
·Patrick Spurr (long term friend of plaintiff);
·Shelli Louise Ceccon (friend of both plaintiff and defendant); and
·Michael David Smith (worker at defendant’s Central Demolition business).
On the defendant’s case there was evidence from:
·the defendant;
·Tracey Lee Martin (part-time secretary at Central Demolition);
·Fiona Bennett (part-time secretary at Central Demolition); and
·Tom Stamos (worker from Central Demolition).
In addition, I received documentary evidence from both sides.
I accept the evidence of the plaintiff as credible and reliable and prefer her evidence to that of the defendant where there is conflict. Her evidence was unequivocal, remained consistent with her pleaded case, was corroborated in various respects by other acceptable, and in the end had the ring of truth about it.
On the other hand the defendant’s evidence as to some crucial matters was neither credible nor reliable. In relation to some material matters, his evidence contradicted itself and from time to time contradicted his pleaded case.
For example, it is common ground that on the 9th February 2004, during one of the separations, when the plaintiff was staying at Shelli Ceccon’s house, the defendant arrived, and in the course of a confrontation between him and the plaintiff, she sustained a broken jaw for which she was hospitalised[6]. The evidence of the plaintiff and Miss Ceccon was that the defendant, when standing over the plaintiff who was on a mattress on the floor, in a fit of anger, deliberately kicked her in the face and so caused the broken jaw. That incident was pleaded by the plaintiff[7]. In his defence, the defendant, inter alia, denied the kicking and alleged that in a drunken state the plaintiff attacked him “... and tried to jump on his back ...” and that in an attempt to escape “... the parties scuffled on the floor ...”[8]. Then in his evidence, when the detailed allegations were put to him, he initially made no mention of the plaintiff attacking him but rather explained that he accidentally slipped and “fell on her with my knees ...” (242-245). This explanation was inconsistent with his pleading.
[6] See plaintiff 70-74; Shelli Ceccon 165-170.
[7] See [12] and [13] of Statement of Claim.
[8] See Defence at [27] - [29].
On the topic of who did household chores, the defendant said in his evidence in chief that he did his own washing (195, 198). This accorded with his affidavit evidence[9]. However, later in cross-examination he said that the plaintiff would do washing for him about once a month (223, 224). Further, he said that she would cook a meal “... 10 times in the whole time she was at Springfield ...” (223-4) then within a page varied that to “... once or twice ...” (224).
[9] See [23] of Exhibit D1.
The above are some of the instances in the plaintiff’s evidence which demonstrated disquieting changes of position. What was also notable was that when such inconsistencies were brought to his attention in cross-examination he became angry and derisive (224, 245).
I do not accept the defendant’s evidence as to crucial matters.
I indicate that I accept the evidence of the plaintiff’s brother, Daris Chadwick, and her friend, Shelli Ceccon. Their evidence in large measure corroborates that of the plaintiff. I also accept the evidence of Patrick Spurr and Michael David Smith which was broadly to the effect that the plaintiff and the defendant presented to friends and acquaintances as “a couple” and that the plaintiff exercised a high level of responsibility in her work at Central Demolition.
The plain purpose of the evidence of Fiona Bennett and Tracey Martin was to diminish the level of responsibility which the plaintiff claimed she had in working in the Wingfield office of Central Demolition. They came to Court with a brief to support the defendant’s case that the plaintiff’s responsibilities did not exceed that of a secretary and moreover in that role she was neither hardworking nor efficient. They were current employees of the defendant, and though that of itself could be no indicator of bias, they impressed me as obviously partisan. Finally, the defendant called Tom Stamos. He seemed to be reluctant to be involved and therefore to commit himself to a view about any of the crucial issues in the case, namely whether the plaintiff occupied an unusually responsible position in the office and whether or not she and the defendant were “a couple” (315).
I prefer the evidence of the plaintiff and her witnesses.
Evidence – Findings – De Facto Relationship
I now turn to the evidence and my findings of fact in relation to the existence or not of a de facto relationship within the meaning of the said Act. The following narrative constitutes my findings. I will identify and resolve any significant conflicts as I traverse what is essentially a chronology of events.
Early relationship
The plaintiff was born on the 1st June 1983 and so is now 26 (18). The defendant was born on the 8th October 1964 and so is now 44[10].
[10] See [1] of both Statement of Claim and Defence.
The plaintiff and defendant first met in what must have been 1999, when the plaintiff and her then boyfriend Terry, were renting a house owned by the defendant’s father on Oaklands Road, Morphettville (19, 20). Then in February 2000, which was approximately six months after the plaintiff had broken up with her boyfriend and at a time when the defendant had separated from his partner, she and the defendant began a relationship (20). The plaintiff was then 16 years old (19) and the defendant was 35. The plaintiff was then living at home in Tranmere with her mother and the defendant was living with his parents in Pasadena (20). It was the plaintiff’s evidence that the relationship was sexual. Following a warning as to the privilege against self-incrimination, the defendant declined to offer evidence or answer questions about sexual relations with the plaintiff in the early months of their relationship (217, 219).
When they first met the plaintiff was unemployed. The defendant worked for Central Demolitions which was a commercial, industrial and residential demolition contractor based at Wingfield. In his evidence he said he was the owner of the business (233, 236). Then in his affidavit he swore that it was his father’s business and he had no interest in it[11]. In the same affidavit he swore that two named trusts of which he was a beneficiary had an interest in the business. To further complicate the issue an Asbestos Removal Licence which was tendered in the defendant’s case records that Coville Pty Ltd, as trustee, trading as Central Demolitions held the licence[12].
[11] See [7] and [30] of Exhibit D1.
[12] See Exhibit D5.
The plaintiff as the following narrative spells out, came to work for this business. The issue of ownership is not crucial to this preliminary determination.
I turn to the chronology of events. The relationship between the plaintiff and the defendant, whatever be its legal character, spanned approximately six years and in the course of that time they lived together in houses at Kingswood, Hyde Park and Springfield.
At Kingswood – About June 2000 to about January 2003
In about 2000 the defendant, or interests connected to him, purchased a house at 41 Balham Avenue, Kingswood (20, 21). The plaintiff then began living with him there. She said that this occurred when she was “... 16 almost 17 ...” (21), which fixes the event as occurring just prior to June 2000. She made it clear that it was a sexual relationship (21). She described the move into the Kingswood house in the following terms:
Q.When you say you moved into Kingswood, was that moving in with all of your stuff or was it a more gradual process. Explain how that worked.
A.More of a gradual thing. Because I live with my mother, if we would be with each other to spend time with each other we would generally go there. As time went by, probably over a month or so, it became more of a constant thing that I was there and just ended up being there pretty much permanently.
The relationship did not settle immediately. At the beginning there were what the plaintiff described as “a couple of hiccups”, which resulted in the parties separating within a month or two (23). The plaintiff explained that both she and the defendant were still seeing their former partners and this caused dissension (23). The plaintiff returned to her mother’s at Tranmere. However, after four weeks apart she said “... we decided that we did want to be with each other so we picked up where we left off ... I just pretty much went back to Kingswood took all my gear back there and resided back there again ...” (23). She described the relationship six months after moving into Kingswood in the following terms:
... a fairly sort of solid relationship. It definitely wasn’t casual anymore. We did everything as a couple. I used to take care of the house. We would do things with his daughter. It definitely didn’t come across to me as a casual relationship ... (23).
The plaintiff’s case is that a de facto relationship existed by this point in time, that is about six months or so from the time of first moving into the Kingswood house. The first moving into Kingswood was just prior to the plaintiff’s seventeenth birthday (ie just prior to 1st June 2000) and so the plaintiff’s case is that the de facto relationship existed six months or so later (ie about January 2001).
When the parties moved into the Kingswood house there was very little furniture there. The plaintiff said that, together they went out and purchased some furniture (24, 29). Because of the dislocation of some of the plumbing in the house there was no running water to the back of the house – I infer to the kitchen and laundry (27). The plaintiff said that as a result they “ate out a lot” (27), and she did their laundry at a Laundromat (28). She said that she did the laundry twice a week and it was “both mine and his” (28). She said that occasionally she would prepare a meal at the Kingswood house such as pasta, but most often they would eat out at such places at the Cremorne Hotel, the Torrens Arms Hotel and Buongiorno’s (28). She said that she would carry out the household duties such as cleaning the bathroom and vacuuming (29).
The defendant’s evidence, at first, was that, at Kingswood, he would do his own laundry and the plaintiff would take hers to her mother’s place (198). He said in particular that he did it at a Laundromat in Mitcham and gave some detail about that Laundromat (222). He later changed that and accepted that the plaintiff would do his laundry for him if he asked her to do so, and that probably occurred once a month (223, 224). He said also that the plaintiff did not do “a lot of house keeping type work around the place” (223). He was there speaking generally of not only the Kingswood house but the two other houses that they lived in. This assertion was, to some degree, in conflict with his affidavit evidence as to the topic of housekeeping which was as follows:
23.I say that while undertaking some household duties to pay for her board, she did not provide, inter alia, food, washing or ironing services for me. I was responsible for my own domestic duties and she was responsible for hers.
(See Exhibit D1)
I prefer what the plaintiff said about the above topics of meals and household chores.
The defendant’s case generally was that the plaintiff was a tenant or lodger with whom he had a sexual relationship.
In paragraph 24 of his Defence the defendant pleaded, inter alia, that “... the plaintiff paid nominal rent of $1.00 to the defendant per week ...”. However, in his evidence he said to the contrary:
She never paid rent but that was the agreement. That was the agreement, I was going to get her down for rent. I was going t get her down for rent. She wasn’t going to pay me the rent as long as she done some of the household chores but really hardly any of them ever got done either but that’s what the agreement on the rent was. She wasn’t going to pay me for rent and she didn’t but she was going to do some of the household chores and basically do what she owed in rent inside the house but she never really – she never done nothing really.
(See 208 lines 21 to 30)
Further, in his affidavit the defendant said, inter alia:
17.For the years 2004 to 2006, the plaintiff signed a “rent book” acknowledging that she was responsible for rent of $600.00 per month to board at my residence. Although it is not a formal document or record, I say that it indicates that the plaintiff was a paid boarder when she resided at my residence/s. Annexed hereto and marked “A” is a copy of the “rent book”.
The “rent book” there referred to became Exhibit P3. The plaintiff when shown those records (82-85) said they were a fiction and that she signed the pages after fights in order to leave (82-85). The defendant denied employing any duress to procure her signatures and explained that he required the plaintiff to sign the “rent book” on legal advice “... as a guarantee that she wasn’t going to go and try and take me for anything” (226). He also suggested that he expected the plaintiff to “... do ... just a few household chores ...” for the rent (225). It is common ground that the plaintiff did not ever pay any rent (208, 225, 226, 227, 83).
I find that these rent records were a fiction.
I return to the narrative and in particular to the nature of the physical relationship between the parties at Kingswood.
The house at Kingswood had two bedrooms (100, 196; Exhibit P9). For the first six months of their joint occupation of the house a certain Stephen Stefanopoulos resided there and occupied the spare bedroom (27). The plaintiff and the defendant then invited the plaintiff’s brother, Daris Chadwick, to stay with them (100). He did so for two or three months (45, 100). He described his sister as being in an obviously affectionate relationship with the defendant (102). He noted that she slept with the defendant in the main bedroom during the time that he was staying in the house (100). Further, he agreed that they “shared a room every night” (101), and, inter alia, did the laundry (102). He added that the plaintiff and the defendant appeared to be “a couple” as opposed to landlord and tenant (102).
The plaintiff said that throughout the time at Kingswood she was in a sexual relationship with the defendant (30). She said that throughout their relationship she and the defendant “at all three houses” slept in the same bed together and had sexual intercourse two or three times a week (147). She said they entertained friends at the Kingswood house and went out as a couple (30, 31). Further, after a year or so at Kingswood she said that the defendant’s daughter, of his previous relationship, Isabella was permitted to come to the house. The plaintiff said that she came most often on a Saturday and because the defendant worked she, the plaintiff, would care for her and for instance take her on an outing with her friend Kate who had a little boy (26, 27).
The defendant sought to characterise the physical part of the relationship as merely casual. He repeatedly described himself as being disinterested in sex (199). At one place in his evidence he suggested that he was almost impotent (226). He also asserted that the plaintiff was in sexual relationships with several other young men at the time (196-7, 221-2). Apart from an admission from the plaintiff that she did have a sexual relationship with a man, named Randle, during a six week separation towards the end of their relationship (174), there was no evidence, substantiating these allegations. The defendant’s evidence as to sexual activity is best summed up by the following exchange:
Q. But what were the sleeping arrangements in the house to start with.
A.Well, like I said, I used to sleep on the lounge a bit and I had my bedroom and there was another bed at the back in one of the other rooms and I wouldn’t say that – we weren’t sleeping together that often. We were less than casual.
Q.Did you sleep together regularly at Kingswood.
A.I would say we sleep together, I don’t know, probably about a quarter of the nights that we spent there.
Q.And what would you estimate would be the time you were at Kingswood when she was there.
A.I was at Kingswood for about four or five, six months when she was there.
(197)
In relation to their time at Kingswood, as I have already indicated, I do not accept the defendant’s evidence about who did what household chores and nor do I accept his evidence about the physical relationship with the plaintiff. The plaintiff’s account about these matters is preferable and fits in with for instance her brother’s evidence which I accept. It also fits in with the further acceptable evidence relating to their relationship later at Hyde Park and Springfield, to which I will turn in a moment. Accordingly, putting aside for the moment the question of its duration, I conclude that a de facto relationship, within the meaning of the said Act, existed by about January 2001 (ie approximately six months after the parties first took up residence together at the Kingswood house) and subsisted from then onward at Kingswood.
Before leaving Kingswood I turn to the plaintiff’s employment situation and the timing of the move into the house in Hyde Park.
When the plaintiff and the defendant first moved into the Kingswood house the plaintiff was unemployed (24). “Late 2000” she obtained work at TLC Chiropractic on Unley Road and retained that job for 1½ years (24). Then approximately four weeks after leaving TLC Chiropractic (31), at the invitation of the defendant she commenced work in the office at his demolition business, named Central Demolitions at Wingfield (31). The plaintiff said she began work at Central Demolitions approximately six months before moving out of Kingswood (52). She estimated that they lived together at Kingswood for approximately two years (45) and moved to a house in Hyde Park in 2003 (52). The defendant, on the other hand, said that they were together in Kingswood for only “four, five, six months” (197). The evidence generally as to precisely when these moves occurred was imprecise. The defendant’s estimates do not fit in with the evidence as a whole. I prefer the plaintiff’s estimates. So putting the plaintiff’s various estimates together, namely:
·TLC Chiropractic for 1½ years commencing late 2000;
·Four weeks without work (maximum); and
·Six months of work at Central Demolitions until move to Hyde Park,
results in the conclusion that the parties must have moved into Hyde Park in early 2003. I find that such was the case.
Hyde Park – About January 2003 to beginning of 2005
Accordingly, in about January 2003 the parties moved from the Kingswood house to 17 Beaconsfield Street, Hyde Park. The plaintiff said, and I accept it to be so, that the defendant intended to renovate the house at Kingswood and asked the plaintiff to find suitable rental accommodation for them (46). The plaintiff found the house at 17 Beaconsfield Street and the defendant “ended up” buying it (46). The plaintiff made the arrangements for the defendant to make the purchase including applying, on the defendant’s behalf, for the necessary finance (46). The Hyde Park was more comfortable than the Kingswood house (47). It is undisputed that the house was purchased in the defendant’s name and that the finance to effect the purchase was provided to him.
By the time of moving to Hyde Park, the plaintiff had been working for the defendant at Central Demolitions for some six months. What she did there was the subject of evidence and argument from both sides. The plaintiff’s case was that the level of responsibility undertaken by her was indicative of there being a de facto relationship in existence as opposed to that of an employed secretary, albeit one with whom the boss is having a casual sexual relationship. The evidence from the defendant and his witnesses on this topic sought to show that the plaintiff carried out straightforward secretarial duties which were much the same as those carried out by her successors in the job, namely the witnesses Tracey Lee Martin and Fiona Bennett.
Before coming to a view about the probative value of this evidence one way or the other, I briefly summarise what the evidence has established on this topic.
·Central Demolitions operated from a large shed and yard from which salvaged materials such as red bricks, floorboards, windows and doors were sold (36). At a time prior to the plaintiff commencing work, the business was licensed or authorised to remove asbestos but by reason of “a problem” that licence had been lost (202), so that at least in the later years of the relationship (ie 2004 onward) (355) any asbestos removal work to be legal had to be subcontracted to a duly licensed entity (354).
·The business operated with two trucks and an excavator (41), and employed a number of workers including Tom Stamos who was, inter alia, in charge of the yard and in particular the sales of salvage material.
·When the plaintiff commenced work an office was constructed by Tom Stamos within the shed on the site at Wingfield (32). What passed as an office prior to this was a large table in the corner of the shed (32, see also Exhibit P1).
·The plaintiff’s duties, responsibilities and the work she did were particularised by her in her evidence (31-44, 48-49, 141, 342-361).
There are three matters, which emerge from the evidence as to the plaintiff’s time at Central Demolitions, which stand out.
The first matter touches on her salary.
The plaintiff, by agreement with the defendant, was paid $300 per week (32). Initially she paid herself by taking that sum from the cash receipts of the business (39). After a month or so she stopped formally appropriating the $300 to herself. The question which arises is how she then supported herself. What happened was that every evening, as part of her secretarial duties, she had custody of, and would bring home, the cash takings of the business. She and the defendant funded their joint household and living expenses from that cash (40). She said that the defendant told her to “take what you need” (39). She said that to start with she would make petty cash receipts showing what was taken and its purpose but “in the end they weren’t getting looked at anyway so I didn’t worry about keeping a note” (41). She filed an Income Taxation Returns disclosing the receipt by her of a weekly wage of $300 gross per week (44, see also Tax Returns Exhibits P5 and P6).
I accept the plaintiff’s evidence as to this topic. It was largely unchallenged. It belies the contention of there being a mere casual relationship between the parties. It rather suggests a partnership of sorts.
The second matter relates to the managerial role the plaintiff undertook when the defendant in about 2005 and 2006 failed to attend work.
She said that the defendant stopped working “… during the last year I was there pretty much in the beginning of Springfield …” (81). That translates into from early 2005 until May 2006. There is no real contest from the defendant that such was the case. Tracey Lee Martin, who came to work at Central Demolitions in October or November of 2005, agreed that the defendant was not at work. She suggested he “... was doing stuff to his house ...” (281). The witness Tom Stamos in part also agreed save the he said that the defendant was still doing quotes (307-08). The plaintiff said that at this time the defendant was taking drugs “... on a daily basis ...” (81).
The plaintiff said that at this time she was doing all of the quotations to potential customers save for the occasional one which was done by the defendant (49, 81, 352) and further, she was “prioritising” the work that is directing the workers to particular jobs (49). Again, Tracey Lee Martin agreed that the plaintiff, at about this time, was organising the work (282). The work of giving quotations involved inspecting the building to be demolished and bringing to account the time likely to be expended together with the cost of running the machinery and of dumping the debris (48).
I accept the plaintiff’s evidence as to these matters. It indicates that at a time when the defendant was paying little or no attention to the business she stepped in and, to use her words, “... was taking care of the business ...” (49). It is suggestive of the plaintiff having somewhat of a proprietorial interest in the business and consequently was directing its fortunes as opposed to merely doing what she was told as would a paid employee.
The third matter relates to the work the plaintiff did to procure the appropriate licences and/or certificates to enable the business to carry out asbestos removal rather than subcontract out that part of the demolition.
The evidence before me did not make it clear who needed what legal authority and when to remove and dispose of asbestos. What was required would have been the subject of building industry legislation of some form or another. The parties proffered views in their evidence about what the law required. Neither party directed me to the applicable legislation. I am satisfied that I can make the necessary findings without myself searching for the inevitable statutory protocols.
I turn to the evidence as to this topic and my findings.
The plaintiff described what she did in this respect in some detail (93-96). Drawing from that, I am satisfied that she arranged for herself and the defendant to attend a supervisor’s course conducted by The Construction Industry Training Centre (93-94; see also Exhibit D4). She wrote and submitted a Job Safety Analysis for the business. This was apparently a pre-requisite to obtaining the necessary authority and was in the nature of a job specification relating to procedures for handling asbestos which the employees had to “read and sign off on ...” (94). She also made arrangements for certain employees to attend training at the same Centre (94). Her efforts were successful. She and the defendant each obtained a supervisor’s certificate. She was a “nominated person” under the legislation (94). This initiative was commenced by her in late 2004 (see Exhibit D4). The value to the business was obvious. It could thereafter carry out the many demolitions, which involved the removal of asbestos entirely “in house” (95), and so avoid the expense of outsourcing the asbestos removal portion of the work (95, 354; see also Stamos 311). When cross-examined by the defendant about what she contributed to the relationship her answer included the following reference to this matter:
... I gained an asbestos licence, which you wouldn’t have – at that time you wouldn’t have got up and got on your own which has contributed majorly to your business. Before you were going through, say, three or four thousand dollars a week paying someone else to do the asbestos removal ...
(141)
Tom Stamos said that one in 10 demolitions undertaken by the business involved the removal of some asbestos (311). The evidence of the plaintiff was that “... just about every job was an asbestos job” (94, 354). I accept that many of the demolitions undertaken by the business required the removal of asbestos.
As indicated, it would have been preferable to assess and make findings about this evidence against the background of the then applicable legal requirements but that was not crucial because the defendant accepted that the plaintiff did arrange the restoration of the businesses ability to remove asbestos (see defendant 202; see also Stamos 311-13). However, the defendant disingenuously tried to minimise the plaintiff’s efforts by putting to the Court that this was part of the plaintiff’s duties in the office (202).
I find that, although at one time the business had the legal authority to remove asbestos, either it or the defendant personally, was, in some unspecified way in breach of the requirements and in the result the defendant was prosecuted and fined (96, 202). Central Demolitions was thereafter unable to remove asbestos and “outsourced” that aspect of the demolition work. All this occurred sometime prior to about 2004. It appears that some new parameters required that, in addition to a business having a licence, one or more persons associated with the business required a supervisor’s certificate specific for asbestos removal (345). Whatever the precise detail of what was required, the defendant was disinterested in procuring it (96, 355) and so the plaintiff took it up (93-96, see also Stamos 311). The defendant tendered a number of documents relying on them to indicate that the business was always licensed (see Exhibits D4, D5 and D6). It was a smokescreen which did not address the thrust of what the plaintiff was saying, and which I accept, namely that Central Demolitions could not, from about 2004 onward, legally remove asbestos and that she on her own initiative corrected that.
Accordingly, I find that, on her own initiative, and in the face of lack of interest by the defendant, the plaintiff obtained the requisite authority, certificates or whatever for the business to remove asbestos (141). That the plaintiff was able to take this initiative and follow it through would suggest that she had the authority or power to effect major changes in work practices and policy within the business – a task which would not ordinarily be regarded as being within the scope of employment of a secretary.
I accept the evidence of the plaintiff as to the above three aspects of her work at Central Demolitions. I regard it as circumstantial evidence which together with the other evidence in this matter is admissible to prove that what subsisted between the parties was the claimed de facto relationship.
I resume my narrative and, in particular, return to examine the evidence relating to the parties’ time together at Hyde Park.
The parties resided at Hyde Park for two years, namely 2003 and 2004 and then moved to Springfield at the beginning of 2005 (61).
At Hyde Park the plaintiff said, and I accept it to be so, that she did the cooking, cleaning and shopping (53). She added that occasionally the defendant would accompany her shopping but “... if it came to a big shop I would be doing it on my own ...” (53). The defendant’s daughter Isabella would come to stay “... generally every second weekend ...” (54). The plaintiff thought she was four to six years old at the time. At that time the plaintiff was working at Central Demolitions Monday to Friday and the defendant was working additionally on Saturday (54, 55). Therefore, the plaintiff alone cared for Isabella on Saturdays and would invariably go out and visit friends including Shelli who had a younger daughter with whom Isabella played (54). The plaintiff added that Isabella was a troubled sleeper and would often sleep in bed with she and the defendant (61). The plaintiff purchased furniture settings, rugs and appliances such as a stainless steel fridge and a washing machine for the Hyde Park house.
Further, she and the defendant holidayed together and in particular spent some days in Surfers Paradise just after Christmas of 2004 (58, 59). She said they fought “midway through and for the remainder of the holiday” (60). In evidence in chief the defendant said that “… it wasn’t just a holiday thing. I was looking for a semi-trailer at the time so that’s the reason I went up there as well …” (201). However, in cross-examination he elaborated and said not only that he went to the Gold Coast to buy a truck but further they occupied separate bedrooms and he slept on the balcony (228). Perhaps that occurred after the fight. It was not clarified. The parties together celebrated Christmas of 2004 with inter alia the plaintiff’s family (59, see also Daris Chadwick 106). They also attended social outings and functions together such as “... out to the pub, to Oakbank, to the Royal Show ...” (59). In 2004 during the time at Hyde Park that the parties travelled to Melbourne to celebrate the plaintiff’s 21st birthday (152, 153 and see also photos P7).
At Hyde Park the plaintiff said the parties slept together in the same bed and bedroom and engaged in sexual intercourse two or three times a week (61-149; see also Ceccon 163, 164). The second bedroom was used by Isabella or any visitors such as Shelli Ceccon (61; see also Ceccon 164).
The plaintiff said that at Hyde Park difficulties arose between them which she attributed to the defendant’s drug taking (49, 50, 390). She admitted that when they were first together at Kingswood that they both used cannabis, grew some plants and were raided by the police (49, 50). She said that she stopped using but the defendant continued. She said that he was also using methylamphetamine at the beginning of the relationship but it became worse by the time they settled into the house at Hyde Park (50, 51, 67). She said that the difficulties between them often related to her work at Central Demolitions (388). She said that he became nasty and verbal abuse “... spilled into physical abuse ...” (51). Nonetheless, they lived and worked together and the business she said “was going fine” (51).
The plaintiff’s pleaded case and her evidence was that it was in about late 2003 that the defendant became physically abusive (66-69). I gather from her evidence that before the physical violence started, verbal fights would result in her leaving the Hyde Park house of her own will or in response to the defendant’s demands (65).
She said she did not leave Hyde Park for any length of time but rather she would take a bag of clothes and go back to her mother’s house for “... maybe a week or so” (65). She added that she and the defendant would eventually work things out and she would return. She said there was no “... large length of time that I moved out ...” (65, 143). She said that the defendant would ask her to come back and she would do so (65) for “… two weeks maximum …” (143, see also 148). Then at the Hyde Park house in “… probably late 2003 …” (67) there was a disagreement involving others when a firearm was discharged and Shelli Ceccon was wounded in the leg (67, 68). The defendant challenged the detail of what was said by the plaintiff about that incident (242). Resolving what happened is not necessary so I make no finding about it. In the aftermath of that incident, the defendant kicked the plaintiff in the legs (69).
The most serious episode of violence occurred on the 10th February 2004. The plaintiff had left the Hyde Park house because of the defendant’s behaviour and was staying with her friend, Miss Ceccon. The evidence about this incident is particularised by me under the heading of credibility and reliability. In summary, the defendant kicked the plaintiff in the face and broke her jaw. I accept what the plaintiff said about the incident (70-74, 395-408), and the corroborative evidence as to it given by Shelli Ceccon (165-168). I reject the defendant’s evidence as to that matter. His explanation, to the effect that it was an accident, is wholly implausible (242-5).
Despite the frightening level of violence she was subjected to on that occasion, the plaintiff returned to live with the defendant after a fortnight (71). The defendant regretted his behaviour. Bearing flowers, he sought the plaintiff out at her mother’s place. She was however still in hospital when he did so. He apologised, assured the plaintiff that it would not happen again. Accepting his assurances, she returned to him (70-72). This outcome was commonplace.
As indicated the defendant denied all the accusations of violence. I prefer and accept all that was said by the plaintiff about the descent of the relationship into violence.
In reference to their time at Hyde Park, the defendant maintained the stance that the relationship was merely casual and only sometimes sexual (198, 200).
I prefer the plaintiff’s evidence relating to the time at Hyde Park and what occurred during that time. Further, I accept the evidence of the plaintiff’s brother, Daris (103, 104), Patrick Spurr (157-8), Shelli Ceccon (163) and Michael Smith (176-180) to the effect that, despite the disparity in ages, the plaintiff and defendant in public social gatherings, appeared to be “a couple”. As Michael Smith said, they talked at these gatherings in terms of “we” (176).
Springfield – beginning of 2005 to May 2006
As indicated, the plaintiff and defendant moved into 21 Hillside Road, Springfield in the beginning of 2005 (61, 62). They together inspected the house and purchased it at auction for $925,000 (62). The plaintiff said that the decision to buy was a joint decision (62). It was purchased in the defendant’s name. Again, the plaintiff organised the completion of the purchase and the provision to the defendant of finance to complete the sale. The purchase of this house was apparently the first in the Springfield area in 2005 and for that reason attracted some media publicity. The Advertiser, inter alia, took photographs of the parties and Isabella at the house (63, see also photos Exhibit P2). Some of the furnishings for the house were purchased from the vendors (75). However, the plaintiff herself purchased a couch for the house on finance arranged by her in her name (66).
The plaintiff said that she did the housework (74, 75). Further, as in the case of Kingswood and Hyde Park, the plaintiff said that she and the defendant slept in the main bedroom, in the same bed, and continued their sexual relationship as before (75, 147).
The defendant denied that the plaintiff cooked and cleaned at Springfield (204) and further claimed that they slept apart. In particular, as to this topic, he said:
QWhat about the sleeping arrangements at Springfield?
AWell, she slept in her bed and I slept in mine and there was times when we slept together and there was times when I slept on the lounge as well. Like I said, I slept 11 months on the lounge in a year, so I slept a month in my own bed.
(204, 205)
The plaintiff said that the defendant’s daughter, Isabella, continued to have sleep problems and at Springfield could still come into their bed in the early hours of the morning to sleep (127-9). The defendant denied that this occurred and said that Isabella would sleep only with him (205).
I prefer the plaintiff’s evidence to that of the defendant as to these topics of household chores and the sexual relationship. I turn to the public image of their relationship at about this time.
The plaintiff said that she and the defendant continued to socialise together. They joined Springfield Residents Association and together attended functions put on by that association. She said that over the time of her relationship with the defendant, she came to know his mother and would call on her from time to time (93). She said that she accompanied the defendant to his mother’s funeral (93). In 2005, the parties celebrated Christmas with the plaintiff’s mother and brother at the Settlers Hotel (59, see also Daris Chadwick 106). The plaintiff and defendant clearly socialised regularly with Tracey Lee and Craig Martin (see Martin 274-290). In her evidence, Tracey Lee Martin shrank from unreservedly accepting that they presented on such occasions as a couple who were together as a husband and wife (278). I prefer the assessments of Daris Chadwick, Patrick Spurr, Shelli Ceccon and Michael Smith as to this issue.
The relationship continued into 2005 at Springfield. The plaintiff described it as “pretty rocky” (147). Then in late September or the beginning of October 2005, the parties separated. They resumed cohabitation in mid-November 2005 when the plaintiff, at the request of the defendant, agreed to return to live with him (79, 147-8). During this six week period, the plaintiff commenced a relationship with a man named Randall. She agreed it was a sexual relationship (111-113, 147). The defendant insinuated in his evidence that in the course of his overall relationship with the plaintiff, she had sexual relationships with other men, as well as Randall. In response, the plaintiff insisted that the only relationship she had in the time material to this case was with the man Randall during the six week period she was separated from the defendant (111-113).
Notwithstanding the separation, the plaintiff, at the defendant’s request, attended at Central Demolitions and showed Tracey Lee Martin “the ropes” (79). During these attendances, the defendant asked the plaintiff to return to live with him (79). She did so in about mid-November. I accept that this six week period was the longest she and the defendant had ever been apart since they had settled down together in the Kingswood house. She told the defendant of her sexual relationship with Randall (113).
Upon resuming the relationship, the plaintiff reluctantly returned to part time work at Central Demolitions (80). She spent some days cleaning up the “mess” which had developed in her absence at Springfield (80). She said that she indicated to the defendant that she wanted to look for other employment, but he encouraged her not to do so and represented that if she persisted with work at Central Demolitions he would “… show his appreciation, you know, help me out with some money to perhaps invest in a flat or something …” (81). She said that the defendant still at this time was not working but was at home using drugs (81).
Accordingly, the relationship continued until the day before the plaintiff’s birthday, which was 31st May 2006 (82). There was a disagreeable exchange between them in the office at Central Demolitions when the defendant abused her. The plaintiff decided to end it and informed the defendant the next day that the relationship was at an end (82). Such turned out to be the case.
There was some evidence about what the plaintiff in material terms took from the relationship. There was reference to some items of furniture, a motorcar and a withdrawal of money from the business account. The plaintiff’s evidence was that the car was given to her by the defendant (77-78), and she agreed that she did use the ATM card to withdraw $800 from the business account some three weeks after the separation. She explained the circumstances of the withdrawal in the following terms:
QYou admit that, don’t you.
AYes. I’ve got no problem with that, and the day that I did leave, I had already worked three or four days that week. I hadn’t left with one scent of money, right. I had no other way of getting money at the time because of the fact that I was pretty much left with nothing. I had no offer of help from you, so I didn’t steal the car. I had used a card which was in my name with my own pin number and I got $800 out the bank. After that the card was cancelled and chopped up and gone. I didn’t have any more access to anything that you had, any of your money. I mean, it would only be fair. Like, Jesus, it is not like I took thousands off you. I took $800 bucks and it wasn’t criminal anyway. I used my card.
(132-133)
There is no need to make findings about the furniture or the car. It is not necessary at this stage.
Such are my findings of fact in relation to the existence or not of a de facto relationship.
I turn to my findings in relation to the claims for damages for assault.
Evidence – Findings – Assault Claims
I refer to, and adopt here, my previous findings as to the violence in the relationship (see [21] and [75]-[80]). The plaintiff’s claims are confined to three alleged incidents, namely:
·assaults which occurred upstairs at the Hyde Park house on the 8th February 2004 (392, 407);
·the kicking assault at Shelli Ceccon’s house in Athelstone on the 9th February 2004 which resulted in the plaintiff suffering a broken jaw; and
·assaults which occurred at the Springfield house in about mid-2005 which featured the defendant brandishing a Stanley knife (408).
The defendant denied the alleged assaults and in respect of the most serious, namely the allegation of kicking, he claimed that it was an accident.
In particular, he said that the plaintiff sustained a broken jaw when he accidentally fell on her. As I have indicated I do not believe any of what the defendant said about that incident (see [21] above), and the other incidents. Rather, I accept the plaintiff and in respect of the kicking incident the corroborative evidence of Shelli Ceccon.
I now set out my specific findings in respect of each of the three incidents.
First Incident
On the 8th February 2004 on an occasion when the parties were having a swim at a friends’ house the defendant became angry concerning some comments made by the plaintiff about friends who lived in Naracoorte. When the parties arrived home, still angry, the defendant slapped the plaintiff. That occurred in the lounge room at the Hyde Park house. The fight, according to the plaintiff, then “... went upstairs ...” (393) where in the walk-in-wardrobe, the defendant kicked the plaintiff. She said in particular that the defendant kicked her around her legs. At one stage she said she was on the ground (394). In particular, she said that she was in a ball on the ground in the walk-in-wardrobe when the defendant kicked her (408). The plaintiff said that in this incident she probably sustained the bruising to her left cheek, swelling to her top lip and bruising on her torso and left back which was noted at the Royal Adelaide Hospital on the 10th February 2004 (406-408; see also hospital notes Exhibit P11). As a result of the defendant’s behaviour on that occasion the plaintiff said that she packed some of her belongings and went to her mother’s place for the night (394).
She recounted her feelings about what had happened in the following terms:
I was obviously angry at him, but I didn’t really know – it was just – it all happened sort of so quickly, it was just confusing and I just – I hadn’t quite made up my mind about it, I was just – knew that at the time I didn’t want to be around him.
Second Incident
After staying at her mother’s place overnight the plaintiff on the next day, namely the 9th February 2004 went to her friend Shelli Ceccon’s house at Athelstone (397).
The plaintiff said that the defendant came to Shelli Ceccon’s house and “... he was going on a little bit out the front, he then left ...” (396). Then she said at about 9pm he returned and was banging on the door. Shelli Ceccon let him in. The plaintiff said she was sitting on a mattress on the floor in the lounge. She said that in the presence of Shelli the defendant was standing there “... shouting at me ...” (396). Then she said “... he just pretty much drop kicked me in the face. I got knocked out ...” (396). It is not clear that the plaintiff actually recalled any kick because when pressed for detail she said that all she remembered was waking up with a sore jaw (396).
Shelli Ceccon witnessed the incident at close quarters (165, 166). She said that the plaintiff came over to her Athelstone house to stay the night because she had fought with the defendant (165). Miss Ceccon put a mattress on the floor for the plaintiff to sleep on (165). She said that the defendant “kept ringing ... on her phone” and when she and the plaintiff declined to answer, he started ringing the plaintiff’s mobile phone. The plaintiff then turned off her mobile telephone (165). Shelli Ceccon went on to say that the defendant then arrived at the house (165). She said that the following occurred. The plaintiff was sitting on the mattress on the floor in the lounge room and she was sitting on the lounge. The defendant, she said, was standing a pace or so from the mattress and he was “getting really angry. He was yelling ...” (166). She then described how suddenly he kicked the plaintiff and she demonstrated in court a “soccer” style kick (166). She described the plaintiff dropping to the floor and her immediate thought was that the defendant had killed her. She said that the defendant expressed immediate regret saying words to the effect “I’m sorry I love you”. Miss Ceccon said that when the plaintiff did not respond the defendant accused her of “faking it” (167). In cross-examination the defendant put to Miss Ceccon that what she witnessed was an accident. Her response was the following pithy comment “No, you walked up and you were standing there arguing with her and then you lost it and you kicked her” (172). According to Miss Ceccon the plaintiff after a couple of minutes awoke holding her jaw (168). The defendant then resumed arguing but eventually left when Miss Ceccon insisted that he do so (168).
The next morning, namely the 10th February 2004 the right side of the plaintiff’s face was swollen. Miss Ceccon took her to the Royal Adelaide Hospital (167, 398). She was admitted, x-rayed and the hospital notes (see Exhibit P11), disclose that there was a fracture of the right jaw diagnosed. Surgery took place two days later on the 12th February. The surgery included the removal of two wisdom teeth on the upper and lower right side and the fixing of the fracture of the lower right jaw with plate and screws.
The plaintiff was discharged on the 13th February the day after the surgery (404; see also Exhibit P11). She could not eat solids for six weeks and took sustenance through a straw. Her face was painful, bruised and swollen. She was unable to return to work for a couple of weeks (405).
The plaintiff said in her evidence that the pain and difficulties settled but then in recent times, in particular three months ago (about February/March of 2009), she has begun to experience an aching reaction in the jaw area to hot and cold (400). She has consulted a dentist who has recommended a specialist consultation (see letter Exhibit P10). The prospects are that the plaintiff may need implants and crowns but apart from hearsay there is no acceptable evidence of the need for or the cost of any such treatments.
In relation to this second incident and its aftermath, I confirm again that I accept the evidence of the plaintiff and her friend Shelli Ceccon as to what occurred.
Despite the level of arbitrary violence involved in this second incident the plaintiff resumed cohabitation with the defendant (see 403-404).
The plaintiff said that following the kicking incident the relationship with the defendant was “better for a time” (408). They moved into Springfield in the beginning of 2005 and settled there (61, 62). Then about six months after having moved there another episode of violence occurred. This episode is the final episode the subject of a claim for damages for assault.
Third Incident
The third incident occurred when the parties were living in Springfield in about mid-2005 (408). An argument arose which escalated into violence. The reason for the argument does not matter but the plaintiff whom I accept said it had something to do with tennis courts (409). The plaintiff said that the defendant kicked her, spat on her and burned her on her lower leg with a cigarette lighter (408). She said that she attempted to leave the house however the defendant took her in a headlock and brandishing a Stanley knife told her that if she moved he would cut her (408, 409). The plaintiff eventually left the house and went to her mother’s for a week (411). However, as in the case of the other incidents she returned. She was asked again why she came back and her answer was “... the same reason always I suppose I just felt that that was my really only option at the time. I worked with him, I lived with him, I still at that point I suppose thought, you know, it was just what was going on at the time that was making him flip out” (411). She further explained that she still had feelings for him at the time and that she put his conduct down to “... losing it on drugs pretty much ...” (412).
There was no acceptable evidence that the plaintiff provoked these attacks by herself assaulting the defendant and nor was there the vaguest suggestion that the defendant could have been acting in self-defence.
Such are my findings as to the three incidents. I find that the defendant assaulted the plaintiff as she alleges on the above three occasions.
I now turn to my conclusions, firstly, in relation to the point referred to me as to the existence of a de facto relationship under the said Act.
Conclusion
Was the relationship a De Facto Relationship?
I am satisfied that the plaintiff and the defendant were in a de facto relationship within the meaning of s 3 of the said Act and that it commenced on or about January 2001 and continued with short interruptions or separations until on or about the 31st May 2006.
In particular, the evidence establishes to my satisfaction that the parties “… lived together on a genuine domestic basis as husband and wife …” (s 3 of the said Act) having regard to the following features established by the evidence:
·they lived together at respectively, Kingswood, Hyde Park and Springfield over a period of in excess of five years;
·they occupied the same bed and had regular sexual intercourse;
·they generally had meals together;
·the plaintiff carried out the household chores such as shopping, cooking, cleaning and washing;
·the plaintiff, together with the defendant but sometimes alone, cared for and provided support for the defendant’s daughter, Isabella on regular occasions when the defendant had access to the child;
·they socialised together and despite the age of disparity, were viewed as partners or a couple;
·they holidayed together;
·they made joint decisions about domestic matters such as the purchasing of furniture and household appliances and after Kingswood, about where they should both live;
·they worked together in the defendant’s business and after a month or so, the plaintiff ceased drawing her salary but instead, with the knowledge of the defendant, randomly drew from the cash holdings of the business for, not only her personal financial needs, but also the joint needs of she and the defendant and the household;
·at work, the plaintiff was given a level of level of responsibility which belied that of a mere employee, but was consistent with her being in a wider partnership with the defendant;
·the cycle of violence, separation, apology and reconciliation indicates that the relationship must have been more than merely casual as the defendant submits and is consistent with the existence of some underlying commitment between the parties, such as might exist between a husband and wife; and
·after the resumption of cohabitation in mid-November 2005 after the six week separation, in response to the plaintiff indicating that she wished to seek other employment rather than continue working at Central Demolitions he deflected her by indicating that he would “help her out with some money and perhaps invest in a flat or something ...” (81).
The above “features” constitute the “variety of factors”, mentioned by Powell J in D v McA (supra) and Roy v Sturgeon (supra), to which I have had regard in deciding that the plaintiff and defendant lived together “on a genuine domestic basis as husband and wife” and, subject to the question of the duration of the relationship, were de facto partners. Put another way, the above “features” are items of circumstantial evidence which together point irresistibly to the existence of a de facto relationship.
I turn now to that issue of the duration of the relationship and in particular whether the three-year period should be continuous.
The said Act requires that the de facto relationship exist for at least three years, there being no child of the partners (s 9(2)(c)). As I have made clear in the findings, on occasions prior to late 2005, the plaintiff would leave the defendant and go to her mother’s house because of disagreements, fighting and sometimes violence. These separations were for a week or “two weeks max”. Then in late September 2005 there was a break of six weeks to mid-November 2005 during which time the plaintiff began an association with a man by the name of Randall which included having sexual intercourse with him.
The earlier breaks were occasional and, given their surrounding circumstances, I would not characterise them as interruptions in the relationship at all. The plaintiff simply went home to her mother for some respite from the defendant. The six week break, however, was not of the same ilk because during it the plaintiff arguably established another relationship.
Whatever the character of the six week interruption, by then the relationship between the plaintiff and defendant in any event had subsisted for in excess of three years. Therefore, it is not necessary for me to arrive at a positive conclusion about the legal impact of this six week separation. If I did need to reach a concluded view I would follow the reasoning of Clayton DCJ in Wren v Chandler[13]. In that case, Clayton DCJ, after considering a number of authorities on this question, concluded that s 9(2)(c) of the said Act did not require a continuous period of cohabitation of three years. His Honour concluded that separate periods of cohabitation, in appropriate circumstances, could be aggregated for the purpose of determining the requirement of whether a relationship existed for at least three years (see [43]). Therefore, if I were minded to conclude that the six week separation was an interruption of the de facto relationship nonetheless the period of cohabitation immediately following, that is from mid-November 2005 until the final fracture of the relationship on the 31st May 2006, could be aggregated to the earlier period.
[13] See Wren [2004] SADC 128.
Accordingly, I declare that a de facto relationship between the plaintiff and defendant existed and that its duration was no less than three years (see s 92(c)).
There are a number of other formal requirements about which there was no dispute. I deal with them now.
I am satisfied that both the plaintiff and defendant were resident in the State when the plaintiff commenced this action (s 9(2)(a)). Further, I am satisfied that the plaintiff and defendant were resident in the State for the whole or substantial part of the relationship (s 9(2)(b)). Finally, I find that the relationship between the plaintiff and the defendant ended on the 31st May 2006 and that accordingly this action, which was instituted on the 22nd August 2006, was instituted within the one year thereafter as required (s 9(3)).
I now turn to my conclusion in relation to the claims for damages for assault.
Conclusion – Assault claims
The tort of assault, strictly speaking assault and battery, is actionable per se. That is, damage will be presumed by the court. Accordingly, if the assaulted person cannot produce evidence of injury, an award of nominal damages is appropriate (see Battiato v Lagana[14]). Here however damages have been proven.
[14] [1992] 2 Qd R 234 at 236.
In relation to the awards of damages for the assaults, the plaintiff seeks not only ordinary damages for pain and suffering, but also aggravated damages and exemplary damages.
Ordinary damages are calculated in the same way as they would be in personal injury claims arising from acts of negligence. The losses under this heading are regarded as compensatory damages. That is, the award of damages is recompense to the victim for the actual loss suffered.
Aggravated damages are “an enlargement” of compensatory damages by a component which reflects some aggravating circumstance in which the wrong to the victim has occurred. Such damages are awarded for injury to the victim’s “feelings, caused by insult, humiliation and the like” (see Lamb v Cotogno[15]; see also Johnstone v Stewart[16]). Aggravated damages are compensatory.
[15] (1987) 164 CLR 1 at 10.
[16] [1968] SASR 142,
Exemplary damages are not compensatory at all but are directed to the punishment of the perpetrator for his high-handed disregard of the victim’s rights. The purpose of such damages is punishment, deterrence, assuaging any feelings of revenge held by the victim, and marking the communities condemnation of the conduct[17].
[17] See Lamb v Cotogno (supra) at 8; see also Johnstone v Stewart (supra) per Bray CJ at 145.
Mayne & McGregor on Damages[18] characterised exemplary damages as follows:
Such damages are variously called punitive damages, vindictive damages, exemplary damages, and even retributory damages. They can apply only where the conduct of the defendant merits punishment, which is only considered to be so where his conduct is wanton, as where it discloses fraud, malice, violence, cruelty, insolence or the like, or, as it is sometimes put, where he acts in contumelious disregard of the plaintiff's rights.
[18] 12th ed. (1961) p196.
A graphic example of a case of assault where all three headings of loss were awarded is the Queensland case of Henry v Thompson[19]. In that case the plaintiff recovered damages against three defendants, who were police officers, whom the trial judge found had assaulted the plaintiff by jumping up and down on the head and shoulders and urinating on him. The plaintiff had some weeks off work, but otherwise made an unremarkable recovery from his injuries. Judge Healey, the trial judge in the District Court sitting at Mount Isa, awarded the plaintiff $25,000 which consisted of $5,000 for ordinary damages, $10,000 for aggravated damages and a further $10,000 for exemplary damages. An appeal was dismissed. The Full Court of the Supreme Court of Queensland held that the awards were appropriate. Williams J, with whom Connolly and McPherson JJ agreed, held also that, as indicated by Brennan J at 471 in XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd[20], it was appropriate to separate the assessment of compensatory damages from that of exemplary damages (see Williams J at 417).
[19] [1989] 2 Qd R 412.
[20] (1985) 155 CLR 448.
With the above principles in mind I turn to the assessments.
It is unnecessary to say that the plaintiff’s resilience to the defendant’s abuse and violence and the fact that she did not complain to the police but returned to him after each of these episodes, cannot reduce the damages to which she is entitled. By her own evidence she was in a sense a captive. She had an emotional investment in the relationship and was reluctant to relinquish it. After each episode she was seduced by his apologies and promises and excused his behaviour as being a product of drug taking. In 2004 she was 20 years old and had been in a relationship with him since she was 16 years old. He was then 40. This disparity in ages and the plaintiff’s youth goes some way to explaining her continuing optimism about the durability of the relationship.
In respect of the first incident of the 8th February 2004 the plaintiff is entitled to damages for being struck and kicked by the defendant. She sustained bruising to her left cheek, swelling to her top lip and bruising to her torso and left back. These injuries were not serious. There were no lasting disabilities. A modest award of damages is indicated. I fix a sum of $1,000 for the short-lived pain, suffering and inconvenience inflicted on her so arbitrarily by the defendant.
The second incident, namely the kicking assault at the home of Shelli Ceccon on the 9th February 2004 is far more serious. It calls for an award of all three levels of damages. The defendant all but invaded Shelli Ceccon’s home to remonstrate with the plaintiff. The plaintiff was at the time sheltering there from him. Though plainly unwelcome, he besieged both she and Miss Ceccon, gained admission and in a fit of anger kicked the plaintiff in the face. That assault upon her was outrageous. It was unexpected, cowardly and brazenly carried out under the horrified gaze of Miss Ceccon in her home.
There is a serious injury which requires compensation firstly, by way of ordinary damages. The plaintiff was subjected to the hurtful blow to the face and the onset of immediate pain. She endured a painful swollen face for two days whilst hospitalised and awaiting surgery. She then endured the surgery. Two teeth were removed and her fractured jaw plated. For six weeks she could not take solids and fed herself through a straw. She was unable to work for two weeks. Further, I am prepared to accept that there is some residual problem associated with the injury and recently there has been some undefined discomfort which may require treatment in the future when the plaintiff can afford to have it investigated and treated. The absence of any medical or dental reports is not a barrier to assessing this aspect of her loss. I rely upon the evidence of the plaintiff as to this (see Dibbins v Dibbins[21]). In particular, I accept her evidence that she is having unpleasant reactions to hot and cold substances in her mouth in the area of the fracture and I am prepared to infer that it has some relationship to the injury in 2004.
[21] (1978) 80 LSJS 165.
For pain, suffering, inconvenience and loss of enjoyment of the amenities of life past and future I award $10,000. I ascribe $7,000 for the past and the balance for the future.
The plaintiff is also entitled to aggravated damages by reason of the humiliation, outrage and insult of being so treated. To be kicked in the face in such an arbitrary and wanton way and as a result to be rendered unconscious, hospitalised and incapacitated calls for an enlargement of the compensatory damages. I award $5,000 for aggravated damages.
Finally, I consider exemplary or punitive damages are also called for to register the disapproval and detestation of such criminal conduct and to deter not only the defendant but other like minded individuals from engaging in such conduct. I award $5,000 under this heading.
The third and final incident is also serious, not because it left the plaintiff with disabling injuries but because what the defendant did was demeaning and humiliating. Again he kicked her. He also spat on her and burned her with a cigarette lighter. This primitive behaviour culminated in him threatening her with a Stanley knife.
I award the sum of $1,000 by way of ordinary damages for pain and suffering.
Further, I award $2,000 for aggravated damages in respect of this incident.
The plaintiff is entitled to prejudgment interest on the past components of the above awards (see s 39 of the District Court Act 1991; Thompson v Faraonio[22]). I borrow here from the principles applicable in negligently inflicted injury claims. The period of the calculation is a matter for the discretion of the Court. In this case there is no reason why the period should not date back to the time of the assaults (see Wheeler v Page & Harris[23]). The awards being for non-economic loss, the interest rate for the calculation should be 4% per annum (see MBP (SA) Pty Ltd v Gogic[24]). In this case there is no reason to discount the resulting calculation, to account for the fact that the sum awarded has accumulated over the periods of time since the assaults because the full effect of assaults was experienced either at the time of or within a short time of, them being inflicted. Accordingly, the interest calculations are:
·for the award for the 8th February 2004 assaults the calculation (ie $1,000 x 4% per annum x 5.33 years) results in an allowance of $213.00.
·for the awards for past damages for the 9th February 2004 assaults the calculation (ie $17,000 x 4% per annum x 5.33 years) results in an allowance of $3,626; and
·for the awards for the mid-2005 assaults the calculation (ie $3,000 x 4% per annum x 4 years) results in an allowance of $480.
[22] (1979) 24 ALR 1.
[23] (1982) 31 SASR 1.
[24] (1990-91) 171 CLR 657.
I summarise the awards as follows:
Past Future Total
·8th February 2004 – Assaults at the Hyde Park House
Pain and suffering $1,000 $1,000
Interest $213 $213·9th February 2004 – kicking assault at Shelli Ceccon’s house
Ordinary damages $7,000 $3,000 $10,000
Aggravated damages $5,000 $5,000
Exemplary damages $5,000 $5,000
Interest $3,626 $,3626·Mid 2005 – kicking, spitting, cigarette lighter burn and knife threat
Pain and suffering $1,000 $1,000
Aggravated damages $2,000 $2,000
Interest $480 $480TOTAL $28,319
Therefore in respect of the claims for damages for the assaults I award the plaintiff damages in the total sum of $24,000 plus prejudgment interest in the sum of $4,319.
Final Orders
I declare that a de facto relationship between the plaintiff and the defendant existed for no less than three years.
I confirm the formal findings set out in [125] above.
In respect of the damages claim for the assaults I enter judgment for the plaintiff against the defendant in the sum of $28,318 which sum is inclusive of prejudgment interest.
I will hear the parties as to costs before I refer the matter to the Masters’ list for directions relating to the balance of the action.
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