Clemente v Karpathiou
[2008] SADC 95
•29 July 2008
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
CLEMENTE v KARPATHIOU
[2008] SADC 95
Judgment of His Honour Judge Kitchen
29 July 2008
FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS - ADJUSTMENT OF PROPERTY INTERESTS - RELEVANT CONSIDERATIONS
CLEMENTE v KARPATHIOU
[2008] SADC 95
In this action, which was instituted by proceedings filed on 6 February 2007, the plaintiff, by his statement of claim, seeks orders against the defendant pursuant to the De Facto Relationships Act 1996. By the time the action came on for trial, the De Facto Relationships Act 1996 had been extensively amended by the Statutes Amendment (Domestic Partners) Act 2006, which came into force on 1 June 2007; the amendments included changing the short title of the De Facto Relationships Act 1996 to the Domestic Partners Property Act 1996, which I will refer to as “the Act”.
Part 3 of the Act is headed “Adjustment of Property Interests”; it comprises ss9 to 13 inclusive. Section 9 provides:
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 1 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.
(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.
By s 10 of the Act:
10Power 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.
Section 11 of the Act sets out the matters which the Court must consider, and those it must or may have regard to, in deciding whether to make an order for the division of property, and if so the terms of the order. Section 12 requires the Court, as far as practicable, to finally resolve questions about the division of property between the parties and avoid further proceedings between them. Section 13 provides for the hearing of claims for $6,000 or less.
Section 4 of the Act provides:
4 Application of Act
(1) This Act does not apply to –
(a)a domestic partnership (other than a domestic partnership that was a de facto relationship) that ended before the commencement of this section; or
(b)a de facto relationship that ended before 16 December 1996
Note – The Domestic Partners Property Act 1996 came into operation on 16 December 1996 as the De Facto Relationships Act 1996.
(2) In this section –
de facto relationship means the relationship between a man and a women, who although not legally married to each other, live together on a genuine domestic basis as husband and wife.
It is common ground, and I find, that whatever the relationship between the plaintiff and the defendant, it ended in the month of October 2006, that is before the commencement of s4 of the Act. Therefore, no order for the division of property can be made unless the plaintiff and the defendant were in a de facto relationship (as defined in s4(2) of the Act) for at least three years expiring after 16 December 1996, it being the case (and I find) that there is no child of their relationship.
The plaintiff’s claim is that he and the defendant lived together on a continuous basis in a de facto relationship between in the month of August 2002 and in the month of October 2006, firstly for about nine months in a rented house in Gardner Street, Plympton, secondly for about thirty one months in a rented house in Copley Street, Kilkenny and lastly, for about eleven months, to in the month of October 2006, in a house owned by the defendant at Marion Road, Cowandilla. The house at Cowandilla was the family home of the defendant’s stepfather and her mother (I will refer to them as her parents) which the defendant purchased, from them, in September 2002; the defendant’s parents continued to live in the house until in about the month of February 2007.
The defendant’s case is that throughout her relationship with the plaintiff, she resided at the Cowandilla house with her parents, visiting the plaintiff at the Plympton house and then the Kilkenny house where the plaintiff lived, frequently staying with him for successive nights until the plaintiff went to live at the Cowandilla house with her and her parents in November 2005, an arrangement which continued until her relationship with the plaintiff ended in October 2006.
The defendant’s case is that there was never, at any time, a domestic relationship between her and the plaintiff, and in particular, they never lived together as husband and wife on any basis.
Each of the plaintiff and the defendant was born in South Australia, the plaintiff in March 1978 and the defendant in July 1982. Each of them attended the same high school, and it was through a group of mutual school friends that they first became casually acquainted when the defendant was about 16 years of age. The plaintiff described the early interaction between him and the defendant, whenever they saw each other, to be that they did not see eye to eye and that this continued during, what I infer to have been, the sporadic contact between them, including the plaintiff living in Queensland for some two years, until, soon after the period of the Greek Easter in the year 2000, a closer relationship developed between the plaintiff and the defendant. By that time, the plaintiff said, he was incapacitated from work by the consequences of injuries he had suffered in a motor vehicle accident. Before that accident, the plaintiff described, he had been employed in general labouring work, then successively as a trainee chef. The defendant was working in a café, but in late 2000 or early 2001, she obtained a position as a kitchen hand at St Basil’s Nursing Home, where she continued to be employed, later as a trained carer, throughout the period of the relationship between the plaintiff and the defendant earning for most of the period about $1,000 per fortnight (after tax) for 76 hours work over two weeks in more recent years including agency work at other care centres. During the same period, the plaintiff was unemployed and in receipt of a disability pension, or other regular government support through Centrelink which ranged from fortnightly payments of about $317 rising to about $400 during the period.
In his statement of claim, the plaintiff seeks a declaration that his relationship with the defendant was a de facto relationship; a division of property giving the plaintiff one half of the net value of the assets “of the relationship”; and a determination by the Court of the parties property interests and of the plaintiff’s interest in the Marion Road, Cowandilla house. That house is the only substantial asset which either party had at the time when their relationship ended in October 2006. There are, however, issues concerning property, separate from the house, owned by one or other of the parties.
The plaintiff’s evidence is that he had lived in Queensland for approximately two years before returning to Adelaide at about the period of the Greek Easter in April 2000. In Adelaide, he lived first with a friend and then subsequently with his grandparents. He said that, at about that time, his friendship with the defendant grew very close; he saw the defendant every day, they did everything together, he visited the defendant’s parents, and the defendant regularly “stayed over” with him at his grandparent’s house. Both the plaintiff and the defendant gave evidence that their relationship evolved in 2000, and thereafter continued, to include sexual intercourse.
Attached to or adjacent to the grandparent’s house was a building (the plaintiff referred to it as a granny flat) in which the plaintiff’s great-uncle resided. The plaintiff said he was caring for his grandparents and for his great-uncle. The great-uncle died, the plaintiff said, in August 2002.
The plaintiff’s evidence is that after his great-uncle’s death, the plaintiff and his brother found about $30,000, in cash, in two jars discovered in the granny flat; the discovery was reported to the plaintiff’s grandfather, who told the plaintiff and his brother that they could keep the money, which they did, the plaintiff retaining one half of the amount.
The plaintiff said that he found living with his grandparents, in effect, intrusive – “need your own space, my grandfather would always come in, grandmother nagging….”, and he decided with his brother, who was living in Queensland, that he would live elsewhere with his brother. He said the defendant “argued and put up a fuss”, that she wanted to move out from her parents’ house and to live with the plaintiff and his brother; he said he gave in and agreed.
The plaintiff learned of a house at Gardner Street, Plympton that was available for rent; it had been newly built for two cousins whom he had come to know when he frequented a café owned by the cousins. The plaintiff said the rent was $240 per week, that he paid $4,000 or $5,000 as a lump sum “up front” and he and his brother purchased what either he or his brother did not already have in order to furnish the house. He said the defendant made no contribution to the furnishing of the house, but she “tidied the house up, like when we were unpacked, whatever, womanly things” and she made no financial contribution toward the rent which the plaintiff said he paid, after the lump sum pre-payment of rent was exhausted, when he visited the café.
The plaintiff’s evidence is that the defendant made no contribution either initially or later to the rent for the Plympton house or the Kilkenny house because at about the time the arrangement to rent the Plympton house was being made the defendant was taking steps to buy her parents’ house at Cowandilla. The plaintiff said he had been informed that the defendant’s parents had income tax problems concerning a cleaning business they had conducted, and those problems were a reason for the arrangement that the defendant would purchase the house at Cowandilla owned by her parents. The plaintiff said he knew a finance broker, one Dominic, who was one of the owners of the Plympton house rented by the plaintiff and his brother, and he and the defendant spoke on a number of occasions with Dominic who arranged for the defendant to obtain a loan from Adelaide Bank Ltd for the purchase of the Cowandilla house.
Exhibit D4 includes a communication from Adelaide Bank to Dominic Schiafone concerning the defendant’s application for a loan. It is dated 19 August 2002. The defendant obtained a loan of $165,750 from the Adelaide Bank upon the security of a mortgage over the Cowandilla property. The defendant also obtained $7,000 from the Federal Government as a first home buyer’s grant. The transfer of the house to the defendant was effected on 17 September 2002. The Memorandum of Transfer (exhibit P2) states the consideration to have been $195,000. It was a condition of the agreement by Adelaide Bank to grant a loan to the defendant that (inter alia) her parents provide a statutory declaration stating that the difference between “the sale price and the market value” of the Cowandilla property “is a gift” (exhibit D4). The defendant’s parents signed the document exhibit D3 headed “Confirmation of Non-Repayable Gift” which states, in effect, that they had made a gift of $90,000 to the defendant to assist her to purchase the Cowandilla property. The document is not in the form of a statutory declaration. Assuming it purported to have been provided to satisfy the conditions set by the Adelaide Bank, then objectively the Cowandilla property was judged to have a value of $285,000 at the date of transfer. However, that figure is far in excess of the (about) $230,000 which the defendant’s stepfather, Mr Carey, said was the value of the house. It is not clear to me how the gift of $90,000 was calculated.
The plaintiff’s evidence is that his brother died on 19 January 2003, only a couple of months after they had gone to live at the Plympton house in approximately October 2002 a date which he estimated by reference not only to his brother’s death but also the death of his grandfather, some ten days earlier and to the plaintiff undergoing surgery in January 2003 for gunshot wounds to his arm. The plaintiff’s evidence is that he received, in cash, $18,000 to $20,000 as an inheritance from his grandfather’s estate.
The plaintiff said that he did not expect the defendant to contribute to the rent for the Plympton house because “what’s fair’s fair; she would contribute to the mortgage, I would pay the rest of the bills”.
The plaintiff’s evidence is that before he went to live at Plympton a Statesman motor car was purchased for $19,000 to which he contributed $3,000 and the balance was borrowed by the defendant, from the CPS Credit Union, because the plaintiff had a poor credit rating relating to a mobile telephone account some years before.
In cross-examination he said the Statesman was bought in late 2003. The car was registered solely in the name of the defendant.
The plaintiff said he made the majority of the repayments in relation to that loan at the rate of about $110-$115-$120 per fortnight until the outstanding balance (which apparently remained at $16,000), was paid by the defendant with part of the proceeds from the re-financing of the Cowandilla house in July 2005. The plaintiff said he also “spent thousands” on repairs and maintenance of the car. The defendant’s version of events concerning that car is different. The defendant said that when she purchased the Cowandilla house from her parents there was an outstanding loan to the CPS Credit Union of approximately $20,000 which she had obtained to purchase a Honda Civic motor car. A loan in the amount of $20,521 from CPS Credit Union is referred to in exhibit D4, a letter dated 19 August 2002 concerning the defendant’s application to Adelaide Bank for the loan to purchase her parents’ house. The defendant said that the Honda Civic was subsequently stolen and burned, the debt to CPS Credit Union was (as I understand the evidence) met by insurance and CPS Credit Union offered to lend the defendant $16,000 to acquire a replacement car. The defendant said she purchased the Statesman car at a cost of $18,000 “helped” by $2,000 provided by the plaintiff, but except for “one or two payments” she said the plaintiff made, she made all the repayments required in respect of the loan as well as paying to insure the Statesman car. In 2006 the Statesman was involved in an accident, judged to be a “write-off”, and the insurer paid out $12,275.00 to the defendant in November 2006.
The plaintiff also attributed his poor credit rating as a reason for his decision that a Harley Davidson motorcycle purchased by him for $15,000 in about 2002 be registered in the defendant’s name – he explained he had not paid fines, or some fines, incurred after he turned 16 years of age and as a consequence he could not register any vehicles in his own name while fines were still unpaid. He said he started “settling” the fines “so I now have things in my own name”. He also said that, by this device, the defendant would have “collateral” if she sought a personal loan. I note that in August 2003 the plaintiff’s bank account statements (part of P2) records the first of many payments of $127, approximately fortnightly, to the Courts Administration Authority. Whether those related to the fines the plaintiff spoke of was not made clear; those payments of about $254 per month, totalling $4,500 to in January 2005, were however another cost the plaintiff had to meet from his means. The plaintiff stated that his poor credit rating was also the reason why the Cowandilla house was not sold to him and the defendant by the defendant’s parents – he said the defendant proposed that the house be in both their names, that there would be two incomes to support the application for a loan, but he understood that were he to have proposed a joint borrowing to purchase the house with the defendant the loan may not have been approved or if approved then at a greater interest rate; so it was, he said, that he agreed with the defendant that she would pay the mortgage and “the rest of the houses that we lived in, the rental properties, I will pay all the bills”.
The plaintiff described that the house at Plympton included three bedrooms, one of which was used by his brother, another was where he and the defendant slept and the third was vacant. He said the defendant kept items of her clothing, and at all times lived with him, at the house in Plympton, but in the same passages of his evidence (T61) he said the defendant had clothing and personal effects at Cowandilla “… because that was her parents’ house, she lived there, she didn’t move everything …”.
The plaintiff said that after the surgery on his arm in January 2003 he became friends with Samuel Franze who had first visited the house at Plympton to offer his sympathy concerning the death of the plaintiff’s brother. He said that thereafter Mr Franze visited the house at Plympton on a number of occasions, and was instrumental in finding alternative accommodation for the plaintiff when the house at Plympton was put up for sale by the owners. The alternative accommodation was at Copley Street, Kilkenny in a house owned by Mr Franze’s brother. The plaintiff described the house at Kilkenny to contain three bedrooms; he said only he and the defendant lived in the house, sleeping together each night in the bedroom they shared.
Mr Franze gave evidence. He is a motor mechanic employed at Naz’s Auto Repairs in Hilton North (a business owned by his father) on the premises of which there is a service station, managed by his uncle, which sells motor fuel. The plaintiff said that a few weeks after moving to the house at Kilkenny he opened an account at Naz’s Auto Repairs for the purchase of fuel and another account for the service or repair of motor cars. Mr Franze said both the plaintiff and the defendant purchased fuel, initially for a Statesman car but later for a Calais car, which was charged to the plaintiff’s account against their respective signatures, and was paid by the plaintiff in cash. The statements for fuel purchases between June 2004 and October 2005 are exhibit P1. The defendant agrees she purchased fuel on the account. She said that the car was fuelled by her, charging the fuel to the plaintiff’s account, but she hardly ever used the car and when she did, she filled the car because the plaintiff “used to use my car --- (I use it), not very often, may be once, twice a week, if I was lucky, but not even that. I wasn’t even allowed to use it and it was my car”.
Mr Franze said that he went to the Plympton house to “show his condolences” after the death of the plaintiff’s brother and that both the plaintiff and the defendant were there. He said he had previously seen them together “out socialising … I mean being they were boyfriend/girlfriend, it looked like they were living there”.
In cross-examination it was put to Mr Franze that he visited the Plympton house on only one occasion; he said it was more than once – he guessed three or four times but said it was a long time ago and he could not really recall. However, the house at Copley Street, Kilkenny was owned by Mr Franze’s brother, who lived in Melbourne, and I accept Mr Franze’s evidence that on behalf of his brother he entered into an oral agreement to let the house (he said to “Chris and Ele”) and that he was a frequent visitor about twice each week to the house either socially or to collect rent which the plaintiff paid in cash. He said he would usually call after 8 pm and sometimes the defendant was there (in cross-examination he said that the defendant was present on about half the occasions he went to the house); he said he always saw male and female clothing on racks in a drying area. He described there were occasions he saw the defendant come from the shower room and subsequently get dressed. He said that on three or four occasions he went with the plaintiff to collect the defendant from her workplace at St Basil’s Nursing Home and they all returned to the house at Kilkenny. He described being at the house sitting with the plaintiff and the defendant watching television and talking, and spoke of seeing the defendant, equipped with cleaning items, going toward the bathroom (he concluded she went to clean it) and vacuuming and cleaning around the house. He said that the plaintiff and the defendant attended a party for New Year and also attended his birthday party, to which they came, and left, together. In his “assessment” the plaintiff and defendant were a couple living together at the Kilkenny house, a conclusion he also drew from his observations of the plaintiff and the defendant at the Plympton house and after October 2005, the Cowandilla house where he said he went “a few times”. He said the Kilkenny house was sold, and he told the plaintiff and the defendant that they had to quit the house; he described “they were a little upset” but informed him they would move to “their house at Cowandilla – (which) – they were renting back to Ele’s parents”.
The first of the statements in exhibit P1 is for the month of June 2004; it records the first purchase of petrol from Naz’s service station in that month to have been on 5 June against which the plaintiff’s signature appears. The next recorded purchase, also for petrol, was on 11 June against which, as I find, the defendant’s signature appears. Although the first statement in the bundle exhibit P1 is for the month of June 2004, Mr Franze said he thought the plaintiff opened an account with Naz’s late in 2003 or early in 2004. The plaintiff’s evidence is that he celebrated his birthday in March 2003 when living at the Kilkenny house, which he had moved to a couple of months after the death of his brother. If that evidence is accurate the plaintiff resided in the Kilkenny house from in about the month of March 2003 after spending some five months at the Plympton house beginning in October 2002.
It follows that on the plaintiff’s evidence the defendant had purchased the house at Cowandilla before, as the plaintiff asserts occurred, the plaintiff and the defendant began to live together at the Plympton house in October 2002.
The rent for the Kilkenny property was $170 per week. The plaintiff said he paid that by a lump sum payment in cash of five months rent in advance (about $3,400 as I calculate) and, after that had been used up, then by cash payments of rent in advance. There are no identifiable receipts or other records for any of these payments, or for rent paid in respect of the Plympton house. There was no challenge to the plaintiff’s evidence that he paid the whole of the rent for the Kilkenny house or, as I understand the evidence, the Plympton house unless the plaintiff’s brother contributed. The rent for the Plympton property per fortnight (at $480) was considerably more than the plaintiff’s fortnightly receipts of government support, and the rent per fortnight for Kilkenny (at $340) consumed most of his government support; the implication is that the brother contributed and when he died, accommodation at a lesser rent was needed.
The plaintiff’s evidence is that in addition to the amounts he received from the monies found in jars after his great-uncle’s death (his share of which was about $15,000), and monies he received upon the death of his grandfather (about $18,000), he received about $20,000 from his late brother’s “estate” (in early 2003 I infer) and he recovered a net $34,049.41 in August 2003 as damages, or compensation, arising out of the motor vehicle accident I mentioned earlier in these reasons. Except for the damages, the plaintiff said none of those amounts was paid into a bank account.
In addition, the plaintiff said, he made a profit on the sale of vehicles he purchased and renovated. He described (as an example) that when he received the damages payment in August 2003, he sent $20,000 to his father in Queensland to hold for him, paid $8,000 to purchase a motorbike and spent $5,000 to buy a utility upon which he then expended $8,000 to fix it up following which his father sold it in Queensland for $25,000. The plaintiff said that for the purpose of receiving his government support payments (and, it appears, the payout for his damages claim) he maintained a bank account, statements concerning the transactions through which between 6 July 2001 and 17 January 2005 are included in exhibit P2. Other than that the plaintiff’s evidence is that his practice, like most of his family and relatives he said, was to prefer his transactions to be in cash, which included keeping relatively large sums of money on hand rather than with a bank.
The plaintiff said that throughout the whole of the period he and the plaintiff lived together at Plympton and Kilkenny beginning in October 2002, all of the fortnightly payments into his bank accounts were withdrawn “and used to cover the joint expenses – for food and stuff” for both them. “… generally if we’d been shopping or whatever, the electricity bill or the internet bill came, I would pay it. If I was short and if I needed money, I’d ask her and if she was short – that was the general thing to do in a relationship.” He said the defendant paid all the repayments due in respect of the mortgage over the Cowandilla house, but if the defendant was short of money he would contribute to council rates or other bills for the house.
It is apparent that without access to other funds the plaintiff could not have paid rent and supported himself, let alone another, on the government support payments he received. The other sources of funds he deposed to are material to his evidence of payments he made to, or on behalf of, the defendant and expenditure on the house at Cowandilla.
The last purchase charged to the plaintiff’s account with Naz’s Service Station, was on 21 September 2005, from which the plaintiff judged that it was in about October 2005 he went to live at the Cowandilla house after he was informed that the Kilkenny house was to be sold, although he also said that in June 2005, when he attended Repromed with the defendant, he was living at the Cowandilla house. Repromed is a medical service which I will refer to later in these reasons.
In the period from in about March 2003 to October 2005 during which the plaintiff says the defendant was living with him at Kilkenny, a Medicare card in the joint names of the plaintiff and the defendant was obtained, they both attended a fertility clinic, a bank account in both their names was opened and, the plaintiff says at his suggestion, the house at Cowandilla was refinanced by the defendant borrowing $185,000 from ING Bank of Australia Ltd with the proceeds of which she repaid the outstanding balances owed on the mortgage to Adelaide Bank ($162,059), and a loan from CPS Credit Union ($16,000), the latter being in respect of the Statesman car; after those repayments, and solicitor’s fees, a balance of $6,602 was credited to the defendant’s bank account. I will review the evidence of those events more particularly in a moment as being relevant to, among other matters, the issue of the relationship between the parties, but before turning to that task I will briefly deal with the evidence of two other witnesses called in the plaintiff’s case, Messrs Giorginis and Thanos.
Spiro Con Giorginis is a plumber by occupation. He and the plaintiff have been friends since their early “teens”, and he came to separately know the defendant during social activities including what he called night-clubbing. He said that he was not aware that the defendant was the plaintiff’s girlfriend, until, on an occasion when he was visiting the plaintiff at the Kilkenny house, the defendant arrived there - “home from work” as he described it - as he was leaving. He said that he visited the house on five or six subsequent occasions – he said the plaintiff was usually there alone, the defendant at work, but on two or three occasions the defendant was at the house including on a day he worked at the house to repair a cracked water pipe. He concluded that the plaintiff and the defendant were living together.
Mr Giorginis also used his van to assist the plaintiff to move various items of furniture and boxes from the Kilkenny house to the Cowandilla house. He said the defendant was at the Kilkenny house (“doing her own thing” as he put it) and she was also at the Cowandilla house, where he saw a good-sized room, containing a bed, into which he carried the things he had brought from Kilkenny. He said he subsequently visited the Cowandilla house on at least ten occasions to see the plaintiff. The room he had seen was furnished for use as both a bedroom and a sitting room. On most occasions he visited, the defendant was at work but he saw her a few times at the house. His assessment is that it was obvious the plaintiff and the defendant were boyfriend and girlfriend, although he said he had not seen them out together at night socialising except on one occasion when he escorted the defendant and her girlfriend from a nightclub to meet the plaintiff outside the club and he saw them all go elsewhere.
Mr Giorginis described the work he carried out on an occasion he installed at Cowandilla a gas hot water service unit which the plaintiff had purchased to replace an inoperable electric unit at a cost of $1900 for which he said the account he rendered to the plaintiff has not been paid.
In cross-examination Mr Giorginis said he was told by the plaintiff that the move into the Cowandilla house was so that the plaintiff and the defendant could save money. He related that on an occasion some time after he had assisted in moving items from Kilkenny to Cowandilla, he overheard a telephone conversation between the plaintiff and the defendant concerning an arrangement to holiday together in Queensland. At the plaintiff’s request he lent the plaintiff $5,000 for that purpose and, he said, later the plaintiff telephoned him from Queensland and asked for a loan of a further $1,000, which Mr Giorginis paid into the plaintiff’s bank account. These events, including the plaintiff’s and the defendant’s holiday together, occurred in January 2006 Mr Giorginis said.
Peter Damien Thanos attended the same high school as the plaintiff and the defendant until Year 8 when he went to live in Western Australia for three years. He returned to Adelaide in about 1995 and through his association with groups of friends he came to know the plaintiff and the defendant; he said that with his girlfriend (a friend of the defendant’s) he visited the plaintiff and the defendant at the Kilkenny house about once each month at night for an hour or two over a period of twelve months beginning sometime in 2003. He said the plaintiff and the defendant were living together at the Kilkenny house in a relationship he described as a normal relationship, “they were just an average couple”.
In about February or March 2005, Mr Thanos said, he was in the process of establishing a company to set up business in commercial and personal loans when the plaintiff spoke to him about refinancing the Cowandilla property. Lacking at that time the necessary accreditation to give financial advice or implement a re-financing transaction Mr Thanos referred the plaintiff to a friend, a financial adviser, and accompanied the plaintiff and the defendant to the appointment made with that adviser. Mr Thanos understood that the objective was to consolidate debts, including a car loan, to reduce repayments.
Mr Thanos said that he visited the house at Cowandilla at a time when the plaintiff and the defendant and the defendant’s parents (with whom as a friend of the defendants he previously had become acquainted) were living there. He said that the plaintiff and the defendant had their own large room, “where we hung out”, containing a bed, a television and a computer.
The plaintiff said that on 29 March 2004 his father remitted $13,000 into the plaintiff’s bank account, $12,000 of which he withdrew the following day – those transactions are recorded in Statement No 40, part of Exhibit P2. He related that about $7,000 was used to pay out the defendant’s debt on a personal loan account with the Commonwealth Bank of Australia, $1300 or $1400 to pay out the defendant’s Visa Account debt to the same bank and the balance was used to pay fuel accounts and other general bills. He also gave evidence of two or three trips to Queensland and two or three to Victoria all with the defendant for a holiday, or other reason such as his brother’s burial service, which he said he paid for during the period of his six year relationship with the defendant.
The plaintiff’s evidence is that he and the defendant got on well “maybe for the first two years, three years, after that it was all downhill”. He spoke of episodes of yelling and screaming and verbal “violence” between them, but said he was never physically violent toward the defendant. He said, conversely, that after they had been seeing each other for about three years they spoke about having children together, and discussed getting married and going to live in Queensland. His evidence is that his attitude was that he wanted to be married before having children but he did not think that he and the defendant were ready, financially or otherwise, to enter marriage; he said that the defendant’s desire to have children became a focus for her “because her friends were having children”. He said it was in that context that he and the defendant attended the IVF unit of Repromed.
The plaintiff described the house at Cowandilla to include a bedroom used by the defendant’s parents, and what he said was a “double-sized” bedroom where he and the defendant slept; the room was large enough to accommodate the items he said he brought from Kilkenny – a queen size bed, a lounge/folding bed (which he said was used when the defendant’s niece stayed over), a coffee table, a television set and an aquarium. He said that after moving to Cowandilla he spent every night there and so did the defendant.
The plaintiff identified Exhibit P2 Tab 6 to be a provisional development consent to a plan prepared, at his request and at a cost to him of $1,000, by an architect for works to be carried out on the Cowandilla property. The application for consent appears, from that exhibit, to have been lodged with the City of West Torrens on 12 July 2005 and provisional consent was granted on 13 October 2005. The plaintiff’s evidence is that he wished to demolish an existing carport and roller door, extend the driveway so that more vehicles could be parked on the property instead of on the roadway, construct a garage and erect a wall 1.8m in height across the front of the property. He said he spoke to the defendant about his proposal – his view was that there would be an increase in the value of the property once the works were completed, but the defendant thought it would be a waste of money. No further steps were taken concerning the project.
The plaintiff said that he first discussed his proposal for the Cowandilla house when he moved into the house. That is inconsistent with his evidence that he went to live in the Cowandilla house in about October 2005. The plan for changes to the property was prepared before he moved to the Cowandilla house. However, his recollection that he was living at the Cowandilla house when he and the defendant attended Repromed (in June 2005) finds some support in the fact that a letter from Repromed dated 8 July 2005 (Ex P2 Tab 8) was addressed to the plaintiff and the defendant at the Cowandilla house; his reason for fixing October 2005 as the month he moved into that house could be a false inference he drew from the date of the last purchase of petrol (in September 2005 from Naz’s Auto Repairs.
Another project which the plaintiff embarked on (I infer after October 2005) concerning the Cowandilla house was to convert a shed on the property into a rumpus or games room to entertain his friends who, he said, did not feel comfortable about going into the house. It involved the purchase and installation of gyprock lining and a sliding door, at a cost to him of $1,000 for materials. He said the project was half finished by the time his relationship with the defendant ended and he left the property.
At the Kilkenny house, the plaintiff had installed a surveillance system comprising motion sensors and cameras. He took those down and had them installed at Cowandilla, when he moved there, at a cost to him of about $450, as part of a system which the defendant’s parents could monitor on a screen in their bedroom. It is not clear to me whether, when the relationship between the plaintiff and the defendant ended in October 2006, the plaintiff dismantled and took away the surveillance system, but he did disconnect and remove the gas hot water service which Mr Giorginis had installed at Cowandilla at the plaintiff’s cost.
Concerning household expenses at Cowandilla, the plaintiff said that he would help out with bills and “generally we would all chip in to pay the bill”, but he said the bills (he instanced electricity accounts) were in the name of the defendant’s stepfather who would not have enough money to pay the account “so I’d generally put the lot in because (the defendant) would be paying the mortgage, which is fair, and I’d be helping out as much as I can”. He stated that he sometimes gave money to the defendant’s parents during the course of his relationship with the defendant, and asserted that there had been occasions when large sums of money he kept in the house “would go missing sometimes” implying his money was taken by the defendant’s mother; he said “that’s probably how the relationship ended because money would go walkabout”.
In cross-examination the plaintiff rejected that the relationship between him and the defendant began to experience serious problems beginning in about January 2002, or that thereafter the relationship was an “on again/off again” one. He agreed each would be verbally abusive to the other in arguments between them but rejected it was characteristic of the relationship that he would at times push or slap the defendant.
In his Statement of Claim the plaintiff alleged that he had lent a total of $14,200 to the defendant which had not been repaid. Questioned about that in cross-examination he said the sum was made up of $7,000 he paid to discharge the defendant’s personal loan from the CBA, $3,000 he “lent” to her for the expense of her father’s 70th birthday (in 2003), $1,500 (or $1,300 he was unsure) the cost of the defendant undertaking a TAFE course for a Carer’s Certificate, monies he provided to pay the defendant’s Visa account and money to pay some of “her car crash money”. He insisted that each of these payments was a loan and not a gift.
Concerning the Medicare card in the joint names of the parties, the plaintiff said he could not remember when it was but some time before he attended at Repromed the defendant told him they should have a joint card. Although he already had a card in his own name and he believed a joint card could be obtained only by a married couple he agreed. He denied he wanted the card in joint names because he was having trouble with the police; he agreed that while he was living at the Kilkenny house police officers discovered cannabis plants being grown there hydroponically. He said there were two plants, and he was not arrested. He denied the suggestion that any of the substantial payments into and out of his bank account “were a result of” growing cannabis.
Repromed is the trading name of the Reproductive Medical Unit of the University of Adelaide.
In his statement of claim the plaintiff alleged (paragraph 3.8):
The plaintiff and the defendant planned to have children. They attended a number of appointments at the Reproductive Medical Unit in Adelaide.
Questioned about that allegation, the plaintiff said he was aware the defendant experienced pain during her menstrual periods and that she went to the Royal Adelaide Hospital for treatment. He denied it was in the course of that treatment that the defendant was referred to Repromed, but said he was told to go there. He said he was curious concerning his own fertility because of an injury to his testicles when he was a boy. He denied he was concerned about the effect of his drug-taking on his capacity. He said he provided a semen sample, but then he and the defendant were asked when they wanted to start IVF treatment; he said he did not know that IVF treatment was the purpose of the attendance at Repromed and his attitude was he did not want to have children because he and the defendant were not married, and so no such treatment was embarked upon. Taxed as to why he would have any curiosity about his fertility when, as he agreed, the defendant at 19 years of age had conceived a child by him, (a pregnancy that was terminated) he said that was the only time the defendant became pregnant in the years they had been having unprotected sexual intercourse during their relationship.
The defendant’s evidence is that as part of the investigations into the difficulties she was having during her menstrual periods she was referred to a gynaecologist who diagnosed “polycystic syndrome” and sent her to Repromed for further checks “… and I wanted to also check my fertility for my future”. This, from exhibit P2 Tab 8, was in about June 2005. The defendant denied that a purpose for her going to Repromed was that she was trying to become pregnant by the plaintiff.
The defendant said that the plaintiff was taking steroids and other drugs, was curious about his sperm count, told her he wanted to attend Repromed as well and he mentioned to her getting a Medicare card in their joint names “because he wanted to show that he was family orientated and he was changing his ways and he was trying to start a family”. She said that she agreed they would obtain a joint card because “I was young and silly and naïve”.
I note that in June 2005, the defendant was 23 years old. Although she persisted with her relationship with the plaintiff (evidence as to which I will deal with in a moment) I do not accept her description of herself in 2005 as young, silly or naïve.
Concerning the bank account with CBA in the joint names of the plaintiff and the defendant, the plaintiff said it was opened “to save money so we can get married and put money away whenever we had spare money because you need both our signatures to access money”.
The first entry in the account is a credit “balance forward” of $274.65 on 4 January 2005. There is no evidence to show the source of those funds, but two later deposits of $450 and $400 on 4 January 2005 and 18 February 2005, respectively were (the defendant agreed) monies provided by the plaintiff. Although the plaintiff said he never went to the bank to make any deposits and “I gave it to (the defendant) and she would simply – she was good paying bills and taking care of the bank, she would go there and deposit money”, he descended into no particulars about how much of the subsequent, frequent but irregular deposits in the period to 23 November 2006, totalling some $3,868, were contributed by him. As for the withdrawals which, over the period to 23 November 2006, totalled some $5,000 the plaintiff said he was not aware of “three quarters” of them. He said his understanding was that both he and the defendant had to be present at the bank with, and sign, each withdrawal request, but his evidence in that respect was confusing. At one stage his evidence was that except for one or two, none of the withdrawals was made by him or with his knowledge; in cross-examination he said he did not sign slips “for half or three quarters of the withdrawals”, but said it was not necessary for both he and the defendant to personally attend at the bank to effect a withdrawal and none of the withdrawal slips would have borne a signature in his hand. It is not, however, that the plaintiff was troubled by these withdrawals allegedly unauthorised by him, except to the extent it was his view the account was for savings to get married “and not to go there and help yourself”.
The penultimate withdrawal from the account on 7 December 2006, occurred following a deposit of $12,254.55 on 24 November 2006. That deposit was an insurance “payout” for the Statesman motorcar. The plaintiff and the defendant’s reasons for and the circumstances of the withdrawal were rejected by the other of them. I will return to that later.
As to the matter of the joint bank account, the defendant’s evidence is that the purpose of the joint account was not, as the plaintiff said, savings for a marriage and their future but for savings she wanted to make to have some money behind her, and except for the deposits of $450 and $400 in January 2005 and February 2005 (and the $12,254.55 insurance receipt) she made all the deposits mostly by way of automatic transfer from her separate account, into which she received her wages, so that she would not “see” the money. I calculate that those deposits (totalling about $3,868) averaged approximately $257 per month.
The defendant said that there were occasions money was withdrawn from the account when both she and the plaintiff attended the bank together because the plaintiff needed money for “dues” (she said those represented the withdrawals of big amounts) but on other occasions she obtained the plaintiff’s signature on a withdrawal slip and she alone went to the bank and made the withdrawal. In the context of the defendant’s other evidence, I find her explanation for establishing the joint account to be unconvincing. I turn to the defendant’s evidence.
The defendant said that in about June 2000 she and the plaintiff “started actually officially saying we were boyfriend and girlfriend”. The plaintiff was living with a friend and then later he went to live with his grandparents. The defendant described that for the first year, her relationship with the plaintiff was “good”; he was not working and she was not sure what he did with his time and they did not really discuss it. However, the defendant said that, after the first year, the plaintiff was becoming involved with the Rebels Motorcycle Club, she did not like his ways, his involvement, or what he was doing and she wanted the plaintiff to get a job and “clean his act up” which led to fights between them. The plaintiff, she said, would promise he would change but that “never happened” and when she brought the topic up with him an argument would ensue and the plaintiff would “hit me … with his hand, he would throw me to the ground, he would kick me, he would punch me, he would get things and hit me, he would throw things at me – cupboards”.
The defendant said that the first time the plaintiff hit her, she broke up with him. He was then living at his grandparents’ house. He later apologised and begged the defendant to return to him “and being young and naïve that I was I always went back to him, and I was – it became more often – he continued doing – it became worse, then I became more frightened, then I thought there was no way out, so I continued to stay and put up with it” (T203).
The plaintiff’s evidence concerning the Rebels Motorcycle Club is that he became a member in April 2003 after serving a period of one year as a “nominee” before which, he said, he had known “one or two of them, yes, I did, not associate with hanging around, I knew a few, had a bit of an altercation.”
The defendant said that at about the time the plaintiff was to move into the Plympton house with his brother, she and the plaintiff had broken up for about a month; he told her he was moving from his grandparents’ house to Plympton to live with his brother, but the defendant said he did not ask her to live with him, she did not ask to do so and her evidence is that she did not do so.
The defendant said she would go to see the plaintiff at the Plympton house “maybe three times a week, weekends”, sleeping with him on weekends, but “not really” during the week; in cross-examination she said the frequency of her staying the night with the plaintiff was varied, once or twice a week, but there were weeks when she did not stay at the house because “sometimes I did not see him for two weeks”. The defendant said this pattern continued when the plaintiff lived at the Kilkenny house. Her evidence is that except for a change of clothing she would take with her when she visited the plaintiff, no clothing or other personal items of hers were kept at either house.
Taken to the occasion when the plaintiff moved his personal effects from the Kilkenny house to the Cowandilla house which she thought occurred some time in 2005 the defendant’s evidence in cross-examination concerning the plaintiff’s living arrangements included this:
QI put it to you that prior to that time you had your personal effects at Kilkenny and that you moved them, together, across to Cowandilla with the help of some of his friends.
AI didn’t have any of my effects at Kilkenny, apart from a round table that my father had lent to him, out of kind gesture, to help him out because he didn’t have a dining room table, that was it. My father lent it to him and we’ve got that back now. But no, I didn’t have any of my possessions at his property.
QMr Clemente came to live with you at Cowandilla, didn’t he.
ANo.
QThat incident outside the Tonic nightclub that you mentioned when do you say that happened.
AAbout 2005.
QThe fact is that Mr Clemente was living at Cowandilla the majority of the time, wasn’t he.
ANo. He was not living there the majority of the time.
QI want to make it really clear what your evidence is about how much time he spent at Cowandilla and how many nights per week he would be there, or per month.
APer week, maybe twice a week, but not always every week and when I’m saying he would stay, he would walk in at 12-1 in the morning, maybe 11-12-1, in between those times, and walk out by 4-5 in the morning and he would maybe pop in during the day and fall asleep on the lounge and wake up and go.
QHe kept strange hours, did he.
AVery strange.
QBut the fact of the matter is he was there and he was using that as his living quarters every week, wasn’t he.
ANot every week no.
QWhen you say “twice a week”.
AThat wasn’t every single week. Sometimes I wouldn’t see him for a whole week. I wouldn’t even know where he is. That is not a de facto relationship. He wasn’t just living at his grandma’s or living-
QJust answer the question: you say he would stay twice a week at Cowandilla at most; two nights a week at most.
AAt most.
QSome weeks not at all.
ASome weeks I wouldn’t even see him.
QAre you saying he never stayed more than two nights a row in a week.
ANot more than two nights, no.
QNever more than two nights.
AWeekends I hardly saw him and – I mean, because Friday nights he had his club night, so you wouldn’t even see him Friday, Saturday, Sunday, Monday because he was too off his head to answer his phone.
QHe stayed over at the house, at the most, twice a week.
AThat’s right.
QNever more than two nights a week, is that right.
AThat’s right and he wouldn’t even stay over every week, because he would stay at his friend’s house. He had some friends, he stayed at the clubhouse sometimes, he wouldn’t always stay over my house – he stayed everywhere, he based himself everywhere.
QThat’s a lie isn’t it.
ANo it’s not. He used my house like it was a two-way house, he came and he went.
(T259-260)
Taxed in cross-examination about her evidence concerning the plaintiff’s violence toward her, there was this exchange:
QWas it your evidence that it was after the first year of the relationship that he started to hit you.
AYes when he started associating with the Rebels. The first time he ever hit me was at his grandfather’s house.
QThis was before he moved into Plympton.
AYes it was.
QHow often do you say he hit you back in that period at the end of the first year of your relationship.
AAt the end of the first year.
QYes I’m trying to identify the period where you said he started to hit you. At that time when it first started, how often would he hit you.
AHe would hit me once and maybe a few months later he started hitting me and it got worse every month, every few weeks and as the year went on it happened every week, every few days towards the end of the relationship.
QI’m trying to ask about the period at the beginning before Plympton. You were saying there he hit you once and then a few months later he hit you again and then he would hit you every few weeks.
AYes because he would come home to his grandfather’s house or to Plympton.
QI’m trying to ask you about before Plympton. Your evidence is that he hit you once and a few months later he hit you again.
AAnd the hitting started.
QAnd he would hit you every few weeks after that.
ABecause we would fight and that’s how he would get me.
QYou would antagonise him.
AHe would come home having taken drugs and then
Q“Home” what are you referring to.
AHe would come back to Plympton, after three days I wouldn’t know where he was.
QAnd you would go and visit him.
AIf he was my boyfriend, that’s not what boyfriend and girlfriend are supposed to do is that alright.
QYes.
AThen he would come – I would go and visit him when he would be home, when he was home and he wouldn’t like what I would say to him.
QWhat would he hit you again.
AHe wouldn’t stop.
QHe wouldn’t stop.
ANo until I could get into my car and go home.
QThen you would go back and visit the next day.
ANo I wouldn’t. I wouldn’t answer his calls. I wouldn’t go see him and then he would cry and beg me to come back and get his grandfather involved. Being young and silly that I was I would forgive him and then he would threaten me if I didn’t go back so I was scared at the same time so I thought there was no way out so I kept going back.
QWhen he was at Plympton, this behaviour of his continuing, this hitting behaviour.
AYes.
QBut it was more regular than before.
AYes and his brother used to stop him and try and pull him off me.
QAnd yet throughout that period at Plympton you were having sexual relations with him two or three times a week.
AMaybe twice a week.
QThat’s what you said.
ANot every week though. On our good week when he had decided not to hit me and be nice.
QWas it a similar pattern on your evidence at Kilkenny.
AYes. It got better for maybe a few weeks and then it started.
QWhen I say “a similar pattern” perhaps I should be more specific. You were still having sexual relations with him two or three times a week and he was still hitting you more then.
AIt became worse.
QHe hit you more then.
AIt became worse. Yes he did.
(T241-243)
The defendant agreed that in an affidavit she provided to police at Holden Hill on 13 January 2007, she deposed that the plaintiff “would stay over at the (Cowandilla) house maybe four times a week. I don’t know where he was the other days”. Her evidence was that the plaintiff never stayed at the Cowandilla house for more than two successive nights in a week. Pressed, the defendant said that in a good week it might have been more “three or four, but apart from that, there was not many good weeks…then he would start again, he would just go and the fighting – you know. I wouldn’t be with him living the way he was living, so he would try and suck me in to think he was changing and stay for a few nights and try and change my mind from wanting to break up with him” (transcript 262). The defendant denied that her evidence to the court had been deliberately false – she said “a lot has happened and when I did that affidavit and – I’m not saying I’m lying, because I’m not lying at all, I’ve got nothing to lie about. I was living at the Cowandilla property, I bought that house on my own, that’s it. A lot has happened. When I did that affidavit that was after I had a gun put to my head, after I was bashed”.
The defendant’s reference to her being bashed and to a gun being put to her head was to an incident she described occurred on 7 December 2006 when $12,000, part of the proceeds of the insurance payment for the Statesman, was withdrawn from her and the plaintiff’s joint account with CBA, and was taken by the plaintiff. The defendant agreed that before this incident she had not made any complaint to the police about the plaintiff’s alleged conduct toward her during the period of their relationship; she said she was frightened of what the plaintiff may do to her. The plaintiff denied he bashed the defendant, or menaced her with a gun. He said he had possession of a gun in about April 2007 and was charged with that offence but rejected possessing a gun in December 2006.
The defendant’s stepfather George Carey gave evidence. He said he and the defendant’s mother have been together for 24 years (they have been married for 23 years) and he has known the defendant since she was 1 year old. Mr Carey suffered a heart attack and underwent a surgical heart procedure for a triple bi-pass before he and his wife sold the Cowandilla house to the defendant in 2002, and since that operation he has been receiving a pension which is presently about $500 per fortnight. He said it was because of his health and being unable to afford to keep the house that he sold it to the defendant, using the proceeds (which he said were a little less than $170,000) to pay his outstanding mortgage of $105,000 and accumulated debts of $20,000, including about $10,000 owed to the Australian Tax Office, “… the (Australian Tax Office) was asking for the money, so I had to sell the house so I could give them the $10,000”. Mr Carey said that after the transfer to the defendant, no rent was paid to her, “:… it was sort of a rent we were paying because we were helping her with the rates, electricity and paying, of course,. the house”.
During his evidence, Mr Carey professed to having difficulty recalling dates, and, as I infer, the full detail of incidents he observed or participated in; he said “since I have been sick I have been forgetting things”. He said he loves the defendant and would do anything for her; that is a perfectly usual and expected human parental response. I will bear in mind both of those matters as well as his expressing that he did not like the plaintiff very much, when weighing the reliability of his evidence.
Mr Carey, in cross-examination, readily agreed to the suggestion that the plaintiff had financially helped the defendant, stating that the defendant told him of three or four such occasions; and he also said that after October 2005 and in respect of the Cowandilla household bills the plaintiff on three or four occasions contributed a total of $900 to $1,000 to help pay “bills that was urgent to be paid”.
Mr Carey said the plaintiff was introduced to him in 2000 as a friend of the defendant’s. Subsequently he observed that their relationship “was becoming closer boyfriend or (girl) friend or something”. He described the relationship between the plaintiff and the defendant as observed by him to have been terrible, saying “most of the times arguments, and he was threatening her all the time”. It was put to him that from in late 2002 the defendant lived away from the Cowandilla house until returning with the plaintiff to live there in 2005. He replied, “that’s apparently what people say, but it didn’t happen. Not to my knowledge. To my knowledge my daughter, she was home and never left home”. He said the defendant did stay away overnight on two or three occasions each month and sometimes she would go out at night during the week but would return to the Cowandilla house to sleep. He said he knew the plaintiff rented a house at Plympton and later a house at Kilkenny; he visited both houses, the first he said to see the plaintiff and his brother, the second on occasions he took shopping to the Kilkenny house for the plaintiff. As to the Kilkenny house, Mr Carey said the defendant was sometimes there; he expanded his evidence to say that the defendant “could” have been going to see the plaintiff there everyday “but she was home at night to sleep”. However, asked how often, as far as he was aware, the defendant went to Kilkenny, he said, “she went when she had a day off, but then there was so many arguments there that she used to go home crying and didn’t see (the plaintiff)”. Asked whether the defendant had any personal possessions at the Kilkenny house, he replied, “most of her possessions were at home, she was coming and changing at home. Whether she had one or two blouses in there or dresses I don’t know”.
Mr Carey’s evidence is that the plaintiff brought into the Cowandilla house in 2005 a lounge, television and a computer and there were also other of his possessions which were put in storage in a shed on the premises. He said that thereafter the plaintiff would stay overnight from time to time for one or two days “but most of the times he was out and he was coming during the daytime and night time and was disappearing for two, three days”.
Elaborating on his description of the plaintiff’s and defendant’s relationship as “terrible”, Mr Carey said he intervened on an occasion at the Cowandilla house when the plaintiff took the defendant by the neck and pushed her to the floor; Mr Carey said he called to his wife to telephone the police, but the plaintiff seized the telephone, threw it down and left the house. He secondly related that on the occasion of what he said was the last argument between the plaintiff and the defendant, Mr Carey’s wife told the plaintiff “to get out (of the house), never come back”. That also occurred at the Cowandilla house.
The defendant related incidents she said occurred which involved physical violence against her by the plaintiff. She said that in 2005, she thought, at the Tonic Nightclub the plaintiff seized her and forced her into the Statesman car, deadlocked the doors and told her to stay in the car until he returned; he returned six hours later, after she had attracted the attention of security staff. The defendant said she yelled and screamed at the plaintiff for leaving her locked in the car for so long, the plaintiff (whom she described to be drunk) hit her and burnt her on the chest with a cigarette, threw the car keys to her and told her to go home; she said the marks from the cigarette burn remain on her chest. The plaintiff denied there was such an incident.
Two other alleged incidents occurred, in October 2006 and subsequently after the plaintiff had left the Cowandilla house with his possessions.
The first, the defendant said was on 28 October 2006 when the plaintiff came to the Cowandilla house at night, had a shower and afterwards the defendant asked him to leave because her niece and nephew were staying with her in her room. The defendant said that by this time he and the plaintiff “were over long before that, a good year, that whole year we were good and over but he just could not get it into his head that I didn’t want to be with him anymore”. She related that the plaintiff struck and abused her. Mr Carey then came to the room and told the plaintiff to take whatever he had at the house and leave. The second incident occurred after the plaintiff had ceased to frequent the Cowandilla house and had removed his possessions from it.
In the second incident, the defendant said that the plaintiff was abusing and hitting her in the driveway of the Cowandilla house demanding the money for the insurance payout in respect of the Statesman car; a passing police car stopped, policemen got out of the car whereupon, the defendant said, the plaintiff stopped hitting her. The plaintiff agreed there was such an incident but he denied hitting the defendant.
The nightclub incident, as I will refer to it, described by the defendant occurred during the course of what the defendant considered to be a relationship with the plaintiff marked by confronting abuse and sometimes physical violence, which as I assess her evidence, was more probably than not prompted by as she relates it, the defendant’s outspoken dislike of the plaintiff’s association with the Rebels Motorcycle Club and, as the defendant perceived it, the deleterious affect of that upon the plaintiff’s behaviour and her relationship with him. As she implied more than once in her evidence, the defendant succumbed to the plaintiff’s entreaties that the relationship continue, with promises of changed behaviour, and she returned to the plaintiff in the hopeful expectation that there would be improvement.
In D v McA, Supreme Court of New South Wales (Equity Division), 27 June 1986 ( unreported) Powell J was concerned with whether the relationship between the parties before him, was a “de facto relationship”, defined by the De Facto Relationships Act 1984 (New South Wales) to be “the relationship between de facto partners, being the relationship of living or having lived together as husband and wife on a bona fide domestic basis although not married to each other”. He observed that “definitions in substantially the same terms (have) become a part of common statutory usage – as for example, in the Social Security Act (Cwlth) … Family Relationships Act 1975 (SA), s11 as to ‘putative spouse’” and therefore considered ‘it is both permissible and legitimate to seek, and to take, whatever guidance is provided by decisions relating to similar statutory provisions”. Referring to a number of decisions in the Federal Court, and other Tribunals, upon the Social Securities legislation concerning de facto relationships, Powell J wrote:
It is, however, to be observed that, just as human personalities and needs vary markedly, so also will be aspects of their relationship which lead one to hold that a man and a woman are, or are not, “living together as husband and wife on a bona fide domestic basis” be likely to vary from case to case. This being so, it seems to me that each case would involve the court making a value judgment having regard to a variety of factors relating to the particular relationship, those factors including, but not being limited to, the following:-
1. the duration of the relationship;
2. the nature and extent of common residence;
3.whether or not a sexual relationship existed;
4the degree of financial inter-dependence, and any arrangements for support, between or by the parties;
5.the ownership, use and acquisition of property;
6.the procreation of children;
7.the care and support of children;
8.the performance of household duties;
9.the degree of mutual commitment and mutual support;
10.reputation and “public” aspects of the relationship.
In Simonis v Perpetual Trustee Co Ltd (1990) 21 NSWLR 677, Kearney J, in determining whether the claimant before him “was living with the deceased person as her husband on a bona fide domestic basis”, adopted (although stating them not to be the complete test) the factors listed by Powell J. That approach was referred to with approval in the New South Wales Court of Appeal (Light v Anderson & Ors (1992) DFC 95-120).
In my view the approach in those cases, is an appropriate aid in considering whether or not the plaintiff has proved the existence of a de facto relationship (as defined) between him and the defendant for the requisite period, but not (to paraphrase Powell J) to attempt to dissect the definition of the phrase into “discrete elements” and then to test the facts of the case by reference to a set of a priori rules to establish whether a particular “element” is or is not present; with respect I consider the view of Kearney J in Simonis’s case, concerning the phrase with which he was dealing, equally applies to s4(2) of the Act, namely it “constitutes a single composite expression of a comprehensive notion or concept, and therefore has to be approached by considering the expression as a whole and not in several parts.”
The period during which the parties had a relationship extended from about mid 2000 to in October 2006. The evidence of both parties, and I see no reason not to accept it, was that they embarked on sexual intercourse together in the year 2000, pursuing that intimacy, first as I would understand at the house where the plaintiff lived with his grandparents and subsequently at the Plympton, Kilkenny and Cowandilla houses. The defendant said she paid for the travel and accommodation costs of a holiday for her and the plaintiff in Queensland using moneys she had saved; that holiday was within the first year of their relationship beginning. There were other trips interstate the last in January 2006, about nine months before the relationship ended and at a time when as the plaintiff asserts, he and the defendant were living together at Cowandilla. The defendant described that each of the several interstate journeys were undertaken by her and the plaintiff in a relationship of girlfriend and boyfriend and against a canvas of what the defendant depicted as an on/off relationship frequently punctuated by physical violence toward her by the plaintiff.
Each of the witnesses, Messrs Franze, Giorginis and Thanos, described in various terms their observations of the relationship between the plaintiff and the defendant. Collectively their acquaintance with the parties, whom each witness described to be his friends, extended over the period from in about January 2003 to in the month of October 2006 during which the plaintiff says, but the defendant denies, he lived with the plaintiff in the Plympton house, then the Kilkenny house and then the house at Cowandilla. Each of the three men was called by the plaintiff, but I see no reason to reject or have reservations about the veracity of those three witnesses; none of them in their evidence exhibited any responses which suggested partisanship with the plaintiff’s cause. Indeed, in the case of Mr Thanos, it appears that he had come to know the defendant in a circle of friends separate from that which included the plaintiff, and through the defendant he counted the defendant’s parents as his friends – he said he was a friend of her family, visiting them at the Cowandilla house. Mr Franze’s impression of the parties when he visited the Plympton house and saw them there was that they were living together. The number of his visits to the house is not very clear, it could possibly have been only one, although Mr Franze thought there was more than one occasion. However, his visits to the Kilkenny house in the period from approximately March 2003 to October 2005 were about twice weekly. I have summarised the substance of his evidence about what he saw of the defendant’s activities in the house engaged in apparently domestic duties on occasions and the presence of male and female clothing in a drying area. The defendant had, effectively, full-time employment as a carer (at least in 2003 and 2004 working, she said, sometimes double shifts between St Basils and agency engagements) as to which, on occasions, Mr Franze went with the plaintiff, to her place of employment to bring her back to the Kilkenny house. Mr Franze judged that the parties were a couple living together at the Kilkenny house and subsequently, as he observed, at the Cowandilla house.
Mr Thanos visited the Kilkenny house about once each month, with his girlfriend, to spend an hour or so on each occasion with the parties over a period of about twelve months beginning in 2003. He considered that the plaintiff and the defendant were living together.
Mr Giorginis also concluded from his observations of the parties at the Kilkenny house and the Cowandilla house that they were living together.
In the circumstances of this case the evidence of those three witnesses respectively is important where the parties are so diametrically opposed on the fundamental issue of co-habitation.
The defendant said she saw Mr Franze at the Kilkenny house and that it would have been in the evenings. Her evidence was to the effect that as her workplace was nearby she would call into the Kilkenny house “or I would pop past and go home”, adding that the plaintiff “always had his friends there. He had all his friends coming and going … I didn’t really associate with his friends and they would be in the room and I would stay for a bit and go”. Mr Thanos, the defendant said, was another person she saw at the Kilkenny house who came with his girlfriend Gabriella, who was a friend of the defendant. The defendant said Mr Thanos was invited to the house by the plaintiff, “because I think they were doing something with cars or something” and Mr Thanos brought Gabriella to visit the defendant.
In my view the defendant’s evidence concerning the occasions and the purpose of the visits by Mr Franze and Mr Thanos was a directed endeavour to undercut the conclusions which each of them respectively drew from their own observations of the parties’ living arrangements. I accept the evidence of Messrs Franze and Thanos in preference to that of the defendant.
It is not in dispute that the defendant made the repayments in relation to the mortgage over the Cowandilla house. It appears that that was $550 per fortnight, more than 50% of the defendant’s wages (after tax) of $1,000 per fortnight.
Mr Carey said that until the defendant arranged for the mortgage repayments to be made by direct transfer from her bank account to the credit of her mortgagee’s bank account, he sometimes assisted the defendant by making up any temporary shortfall the defendant experienced; however, his contribution was not substantial, as I infer from his evidence. The refinancing with ING, occurred in July 2005, the fortnightly payments thereafter being $600 paid by a direct debit from the defendant’s account.
In addition to the mortgage repayments, the defendant said she made the repayments in respect of the Statesmen car; the plaintiff said they were $110 to $120 per fortnight (he said he paid the majority of them) – I see no reason to not accept his evidence as to the quantum, there appears to have been the payment of $120 to the credit of the account shortly before the balance of the debt (some $16,000) was repaid in July 2005. The defendant’s payments thus became about $670 per fortnight (until the mortgage for Cowandilla was refinanced). The defendant agreed that were she to have been living with the plaintiff at Plympton and Kilkenny, and sharing with him the rent and other expenses, her income would have been insufficient for her fixed repayments and other reasonable expenses.
The defendant said that she received from the plaintiff $2,000 towards the purchase of the Statesmen car, a lump sum of $7,000 (which she said the plaintiff pressed upon her and she used to pay off part of her loan, “to do the shopping and pay some bills off” (T250)), $1,500 to pay for her TAFE fees and a sum toward the cost of her father’s 70th birthday party (in about 2003) which the plaintiff said was $3,000 but the defendant (implying it was less) claimed was for the purchase of alcohol and other things to “help her”. The defendant said that as to the money for the TAFE course she took it on the terms she would repay it when she could, but as to the other amounts she said they were gifts; nevertheless, she said:
I paid him back all the money that he lent me – that I said he lent me – because I have given him my car and I am still paying for that loan, and I paid him $12,000 when I give him that $12,200 from my vehicle (T250).
The setting of a de facto relationship might appear to make it odd that there would be loans (of the nature of those identified by the plaintiff) by one partner to another, and thus raise some question as to whether indeed there was such a relationship. On the occasion on 7 December 2006 when the plaintiff obtained $12,000 from the parties’ joint account, the plaintiff said that he learned that the defendant had received the insurance payout for the Statesmen, but had not told him. He said that he and the defendant argued, he claiming that the defendant had earlier told him the payment had not been received – he denied pushing or punching the defendant or threatening her with a hand gun. The plaintiff said his exact words to the defendant were “your parents stole $7,000 from me, you owe me $14,000. I paid every single thing for the last five years and now you want to steal $12,000 off me too”; they went to the bank where $12,000 (of the $12,275 paid by the insurer) was withdrawn and taken by the plaintiff. The plaintiff sold the wreck of the Statesmen for $1,700. After the withdrawal of the $12,000 there was a balance in the account of $254.55 which was withdrawn on 28 December 2005. The defendant said that the plaintiff also received that money. The plaintiff’s “identification” of the moneys he provided to the defendant as being loans was after the relationship had ended; I do not accept his evidence that they were loans.
Except for one page (part of P2 tab 11) of the account relating to the loan the defendant obtained from the CPS Credit Union for the Statesman, no other documentary evidence was adduced by either party concerning the payment of the fortnightly instalments to show how they were paid, that is, by whom and whether in cash or by bank transfer. I infer that if such evidence had assisted the case of a party he or she would have produced it. The defendant’s evidence that the Statesman replaced the defendant’s destroyed Honda Civic, (and the circumstances in which that occurred) was not challenged. The plaintiff did not claim that he paid or contributed toward the defendant’s payments concerning the Honda; in that case there is no apparent reason for him to pay (or on his evidence pay the majority of) the fortnightly payments for the replacement vehicle unless he was generously providing a car for his and the defendant’s joint use. The plaintiff more often than not was the purchaser of fuel against his account with Naz’s Auto Repairs and, as I understand his evidence, he was the more frequent user of the Statesman. The plaintiff said he spent some $10,000 for repairs and replacements, matters which propelled him to negotiate with the insurer for a higher payout than the insurer first offered when the vehicle was “written off”. Each of the plaintiff and the defendant allowed that the other of them paid some of the fortnightly repayments. Over a period of about twenty four months (accepting that the Statesman was acquired sometime in 2003 and was repaid in July 2005 when the house mortgage was re-financed) fortnightly payments would have totalled some $6,000. The conflict between the parties concerning which of them paid what proportion of those payments should be resolved to be approximately one half by each.
Concerning the defendant’s purchase of the Cowandilla house from her parents, the defendant said that her father was getting on in age. He wanted her to be responsible by putting her money into something of worth and the proposal arose for her to buy the Cowandilla house. She said that she and her parents discussed and agreed she would obtain the house for less than a property elsewhere in an arrangement which would also help her father. The plaintiff, she said, was not involved in these discussions; she did however mention to him her plan to buy the house but rejected the suggestion that she made an arrangement with the plaintiff that he would pay the rent for the Plympton house whilst she paid the mortgage concerning Cowandilla. The defendant denied discussing with the plaintiff that it would be their future home together or that the decision to buy the house was one they jointly made and she rejected the suggestion that, but for the plaintiff being a poor credit risk, there would have been a joint purchase and a joint application for a loan; the defendant said their relationship was just boyfriend and girlfriend without any commitment to her, or anything more together, by the plaintiff whom she asserted had other girlfriends and “was not just sleeping with me”. That latter assertion was not put to the plaintiff.
The defendant said she had tried in the first year of their relationship to discuss with the plaintiff their future together but the plaintiff was not interested. She agreed that the plaintiff introduced Dominic, a financier, to arrange for her to obtain a loan to buy the Cowandilla house; she said that Dominic came to the house, where discussions occurred with her and her parents, and the plaintiff was not present.
Mr Carey said he did not discuss with the plaintiff the defendant’s decision to buy the house. “I had no reason to discuss those things with him. He was nothing to me. It was me and my daughter, and my wife of course.”
The plaintiff calculated by reference to the death of his brother, and the plaintiff undergoing an operation in January 2003 for gunshot wounds, that he went into occupation of the Plympton house in about October 2002. That is several weeks at least after the Adelaide Bank on 19 August 2002 gave conditional approval to the defendant’s application for a loan, which makes it unlikely that the plaintiff knew of the Plympton house at the time the defendant made the decision to buy the Cowandilla house. I am not satisfied on the balance of probabilities that when the house was purchased there was any agreement between the plaintiff and the defendant sufficient to establish that the plaintiff has any legal estate, equitable interest or other enforceable right against the plaintiff, in relation to the Cowandilla house. His remedy, if any, is under the Act and that depends on events which occurred after the purchase of the house.
The last place where the plaintiff said he lived with the defendant was Cowandilla. The defendant said the plaintiff spent no more than a few days there each week, the rest of the time he was absent elsewhere, at his club premises or the homes of his friends, for successive days. The plaintiff said he stayed with the defendant and slept with the defendant in the same bed “unless we had an argument” in which event he would stay with a friend in Seaton. He said he had a number of friends with whom he could spend the night if he had to. He denied he stayed at Cowandilla sometimes and elsewhere other times, using the Cowandilla house as a base of operations. The particular pattern of the plaintiff’s presence in the Cowandilla house, as related by the plaintiff and Mr Carey, was not put to the plaintiff.
The defendant said the plaintiff told her that he was leaving the Kilkenny house to move into the Cowandilla house “because there was a drug bust and the police knew where he was living”. That is contrary to the evidence of Mr Franze that he told the plaintiff and the defendant that the house was to be vacated so it could be sold.
In January 2006 the plaintiff and the defendant went to Queensland. The defendant agreed that the plaintiff paid for the air fares and the motel costs and some meals. She said that the plaintiff took her to Queensland “because he wanted to show that he was going to change his ways and become a better person”. This was the occasion, the defendant remembered, when Spiro Giorginis lent the plaintiff $5,000. She said “I wasn’t really with him on that trip. I stayed in the motel room the whole time. He was out with friends. Because I was in the room and I had rang several times to try and change my flight because I wanted to get home because he had abused me and locked me in the room.” That the plaintiff allegedly locked the defendant in the motel room, was not put to the plaintiff.
In the period of the parties’ relationship from the end of 2004 to in October 2006 the parties jointly opened a bank account (in January 2005), together attended Repromed for tests concerning their individual fertility (in June 2005), together, (as I infer) arranged through their mutual friend, Mr Thanos, a referral for the defendant to refinance (in July 2005) the mortgage over the Cowandilla house, thereby reducing by $120 per fortnight the total of the repayments in respect of the mortgage and the Statesmen car, the Kilkenny house was vacated (in October 2005), the plaintiff transferring (at least his possessions) into the Cowandilla house, and in January 2006 the parties went on holiday together to Queensland. Each of those events occurred in circumstances where those witnesses who were called by the plaintiff and who saw the parties together in that period (and earlier) regarded the parties to be living together. The joint bank account is a matter of some significance. The defendant’s evidence was that except for the first two deposits, which totalled $850,000, every other deposit was made by her from her own resources, but all the withdrawals of big amounts ($300 and above she implied) were so the plaintiff could meet some expense of his own. Withdrawals of $300 or greater totalled $2,400. The defendant’s stated purpose for opening an account (for her, in effect, to save money) is inconsistent with it being a joint account (requiring both account holders to jointly sign withdrawal slips) and the apparent use of the account to provide funds to the plaintiff. It was more likely than not opened for the purpose stated by the plaintiff, that is to save money “to get married” a prospect which the plaintiff said was in the contemplation of the parties in 2005. The plaintiff said that in July 2005 some of the proceeds from the refinancing of the Cowandilla mortgage were used towards the purchase of a gold chain and bracelet as an engagement present for him and that at about the same time (as I understand it) the plaintiff had paid a deposit for an engagement diamond. The joint account is documented evidence of there being financial inter-dependence between the parties, in addition to the evidence of the financial support the plaintiff said he gave to the defendant.
The relationship of the parties, even on the plaintiff’s evidence, was punctuated by arguments involving verbal violence and one of them departing from the other’s company. The plaintiff exampled that to be the case when (he said) he was living at the Cowandilla house. It is implicit in his evidence that such episodes of violent disagreement also occurred when he was living at the two previous houses. He said that two to three years after his relationship with the defendant began, “it was all downhill”. He went to live in the Plympton house in about October 2002, that is approximately 2½ years from the first half of 2000 when the relationship commenced. In January 2003 the defendant attended with the plaintiff the funeral service in Queensland for the defendant’s brother which indicated mutual emotional support between them. In March 2003 the plaintiff joined the Rebels Motorcycle Club after a year of nomineeship. It was the plaintiff’s involvement with that club which the defendant said (and the plaintiff implicitly stated T105) was responsible for the confrontations between them. March 2003 is about the month when the plaintiff went to live in the Kilkenny house.
The plaintiff’s great-uncle died in August 2002. I infer it was in about that month when the plaintiff and his brother discovered the glass jars containing cash from which the plaintiff obtained about $15,000. That is the same month in which the defendant was told of the provisional agreement by the Adelaide Bank to lend funds to her to purchase her parents’ house. In the period from 3 April 2002 to 30 August 2002, $40,300 (in deposits ranging between $1,000 and $7,100) was credited to the plaintiff’s bank account. Each deposit was, almost invariably, withdrawn in toto on the day it was made. The plaintiff’s share of what was found in the glass jars, which he said was not deposited into his account, was a further fund with which the plaintiff could afford to rent a house and escape the intrusive presence of his grandparents. Significantly, the plaintiff did not, apparently, offer any funds to the defendant towards the purchase of her parents’ house, and neither did he voluntarily ask her to go to live with him in Plympton when he found a house to rent in about October 2002. By that time the relationship between the plaintiff and the defendant had been on foot for some two and a half years, yet the plaintiff did not invite the defendant to live in the Plympton house – he merely gave in when, he said, she demanded that arrangement. That implies that the plaintiff was not then enthusiastic to enter upon living with the defendant on a domestic basis as husband and wife, and is inconsistent with his evidence that there was then an agreement he would pay the rent and the living expenses while the defendant made the mortgage repayments relating to the house she had recently purchased from her parents. Rather, these matters point to the plaintiff taking rented premises where his and the defendant’s relationship to that time could be continued, free from the presence of his grandparents and the plaintiff would have the company of his brother.
Until in the month of January 2003 there is no independent evidence to support the plaintiff’s claim that he and the defendant were living together de facto in the Plympton house. Each party rejects the claim of the other of them that there was, or was not, co-habitation in a de facto relationship. Independent evidence which supports the case of one of them on the crucial issue of de facto relationship or not, is very important.
Objectively, the events in 2005-2006 commencing in January 2005 with the opening of a joint bank account and concluding in January 2006 with the joint holiday in Queensland (that period of time including ongoing sexual intercourse) in my opinion individually indicate a close personal, emotional and material dependence and collectively clearly point to domestic arrangements typically found in the relationship of husband and wife. Before that series of events, the plaintiff had provided to the defendant moneys she used to pay for her TAFE course, to pay or reduce her debts to the Commonwealth Bank, to assist her to acquire the Statesman and he contributed to the cost of Mr Carey’s birthday party – all this, in the course of a relationship which considered only from the date the plaintiff went into occupation of the Plympton house, extended over four years into October 2006. For not less than twelve months of that period, the Cowandilla house was where the plaintiff and the defendant pursued their relationship. I conclude that during the period at the Cowandilla house the plaintiff and the defendant became increasingly isolated from each other. Sexual relations between them continued, but the plaintiff was spending more time away from the house. I do not accept the plaintiff’s evidence that he spent every night at the house; but neither do I accept the evidence of the defendant and Mr Carey that the plaintiff’s presence in the house was as infrequent as they separately claimed to have been the case throughout the period the relationship continued at that house. In my view, if it should be found that the plaintiff and the defendant we living in a de facto relationship during the plaintiff’s occupation of the Kilkenny house, then that continued in the Cowandilla house.
Mr Carey said that “to my knowledge” the defendant had always lived with him at the Cowandilla house and she never left it to go to live elsewhere. The defendant, he said, two or three times a month would stay away overnight “but I was on the phone asking where she is”. Mr Carey’s evidence on that topic was at variance with the defendant’s evidence of the number of nights each week she spent with the plaintiff at the Kilkenny house. The difference could be explained by Mr Carey’s admitted forgetfulness since his major operation, however, the evidence of the defendant and Mr Carey contradicts the plaintiff’s evidence that the defendant was living with him at Kilkenny. The evidence of the witnesses Mr Franze and Mr Thanos, particularly in relation to the Kilkenny house, of the occasions they respectively saw the plaintiff and the defendant together at Kilkenny indicates a regularity in the defendant’s presence at the house, in the circumstances they described, which is inconsistent with the defendant’s evidence of relatively few visits to the house each week and frequent absences for a week or more, and never hosting visitors to the house unless they were her own invited girlfriends.
It is the case as counsel for the defendant submitted that none of the witnesses who visited the house spoke of being entertained to a meal there or conversely dining with the plaintiff and the defendant as “a couple” at the witnesses’ residence or elsewhere. The evidence in the case as to domestic arrangements between the parties is sparse; except that the plaintiff briefly referred to shopping with the defendant in the context of the plaintiff providing, or receiving from the defendant if he were short, money for living expenses (which the defendant denied) very little was forthcoming from the plaintiff concerning general housekeeping matters such as preparation of meals, laundering of clothes or cleaning the house, other than Mr Franze’s observations on those latter two matters. Mr Franze’s observations of male and female clothing in the drying area of the Kilkenny house is, in my view, telling. The defendant’s evidence was that the only clothes of hers at the house were overnight changes of clothing she took with her when she went to visit the plaintiff; I do not accept her evidence on that matter.
Counsel for the defendant relied on a number of documents in Ex P2, on which the defendant’s address is recorded as the Cowandilla house, as being consistent with the defendant’s evidence that throughout her relationship with the plaintiff she lived in at the Cowandilla house. The documents included the conveyance and mortgage documents in relation to the transfer of the house to the defendant (tab 3), the defendant’s loan account statement for the six months to 30 June 2004 with her mortgagee the Adelaide Bank (tab 4), correspondence and mortgage instruments concerning the re-financing of the Cowandilla house (tab 5) and the correspondence from Repromed (tab 8). The first document groups were created prior to the month of October 2002 when the plaintiff went to live in the Plympton house; the second group records the movement in the defendant’s loan account for the stated period and in my view does no more than indicate that the defendant’s postal address in the bank’s records was unchanged; the third and fourth group documents were created in or subsequent to June 2005. The defendant’s evidence is that the plaintiff left the Kilkenny house in 2005. The plaintiff said that he was living in the Cowandilla house by June 2005 when appointments were made with Repromed; it is to that address the letter from Repromed dated 8 June 2005 to both the plaintiff and the defendant is directed. By reference to the car statement of duel supplied account from Naz’s Auto Repairs the plaintiff thought it likely he went to reside in the Cowandilla house in about October 2005, reasoning it was unlikely he would have purchased fuel from that supplier once he left the Kilkenny house. On this state of the evidence I am not prepared to draw the conclusion which counsel for the defendant sought to rely upon.
It is probably the case that the relationship between the plaintiff and the defendant was difficult and volatile on frequent occasions during the Kilkenny house period. However, I have come to the conclusion that the defendant did commit too and go to live with the plaintiff when he moved to the Kilkenny house following the death of his brother. Thereafter the defendant strove to make the relationship work, despite on, perhaps, frequent occasions, escaping to her parents at the Cowandilla house – but not to sever the relationship, rather as was the invariable case an expectation that the plaintiff would entreat her forgiveness and then a renewed endeavour on her part to try to persuade the plaintiff against the lifestyle he had adopted as a member of the Rebels Motorcycle Club. In the period from in March 2003 to about October 2005 the plaintiff, I find, provided and paid the rent and other outgoings for a house as his and the defendant’s residence in an arrangement, as I find, where the plaintiff’s assumption of that obligation enabled the defendant to maintain her mortgage repayments without having to contribute equally to the cost of the shared residence in Kilkenny. I have no doubt that they shared, even if unequally, the cost of food and the like; the plaintiff provided funds to the defendant which she used to pay her debts and other commitments; the plaintiff maintained and fuelled the motor car they both used, albeit less than equally from the defendant’s stand-point; there were shared interstate trips, a shared bank account and at least to outward appearances a shared seeking of advice in relation to fertility and then the transfer of both of them into the Cowandilla house, an event that I find to be explicable only on the footing that it continued the domestic relationship in which the parties had participated since about March 2003 in the Kilkenny house. I think the defendant and Mr Carey wished it were otherwise and this, in the case of the defendant, has at least distorted her memory of what she came to realise as 2006 progressed, was a hopeless endeavour to reform the plaintiff; in the case of Mr Casey, I think his recollection of the defendant’s relationship with the plaintiff has been suffused by the events which occurred in the Cowandilla house in 2006 and perhaps by his admitted dislike for the plaintiff.
The parties’ relationship was unusual, fractured and confronting, but on the balance of probabilities (bearing in mind the Briginshaw v Briginshaw (1938) 60 CLR 336) I find that the parties were in a de facto relationship between March 2003 and October 2006.
The property identified during the proceedings to be in existence at the end of the relationship in October 2006 comprised the Cowandilla house, what I will call the proceeds of the insurance claim for the total loss of the Statesman car and a Harley Davidson motorbike.
The Harley Davidson motorbike was the last of a number of such machines acquired by the plaintiff after he bought his first one at a cost of $15,000 in 2002; the first one, called a Night-train, was that which was registered in the defendant’s name. The plaintiff sold the Night-train for $22,000 during the course of his relationship with the defendant and purchased another Harley Davidson, a Springer, at a cost of $20,000, which he disposed of in 2004 and replaced it at a cost of $24,000 with the Harley Davidson the plaintiff still had in October 2006. All these sales and purchases were in cash. Subsequent to the end of the relationship between the plaintiff and the defendant in October 2006, the plaintiff borrowed money from the Rebels Motorcycle Club to pay legal fees, bills and to pay rent; to secure the repayment of the loan the Harley Davidson registration was transferred to the club. The loan seems to have been in the sum of $4,000 (T145).
While the relationship continued at the Kilkenny house the plaintiff paid the rent of $240 per fortnight and the utility services costs. The defendant was paying the mortgage repayments of $550 per fortnight rising to $600 per fortnight in July 2005 and the rates and taxes in respect of the Cowandilla house. There is no evidence as to the quantum of the utility costs or the rates and taxes. I think it is more likely than not the defendant’s contribution to the combined costs associated with the Cowandilla house and the Kilkenny house was substantially greater than that of the plaintiff and particularly so after the Kilkenny house was vacated. That the plaintiff was contributing less than equally, released such funds as he had to provide moneys to the defendant, money to spend on the repairs and maintenance of the Statesman and, in my opinion, on the acquisition of the succession of Harley Davidson motorcycles he traded up to including the one he owned in October 2006. It is unlikely the defendant made any use of the motorcycles but their use by the plaintiff presumably allowed the defendant more extensive use of the Statesman.
I am satisfied that the plaintiff was resident in this State when the application in these proceedings was made. I am also satisfied that both the plaintiff and the defendant were resident in this State for the whole of the period of their de facto relationship, which existed for more than three years.
Having considered the financial and non-financial contributions by the parties to the acquisition, conservation or improvement of the property owned by one or other of the parties, or their financial resources, and having regard to other relevant matters referred to in these reasons, I consider it is just and equitable that there be a division of property.
At the date the de facto relationship ceased and, I infer, at the date of trial, the property referred to earlier had, or I assess it to have had, about the following values.
The Cowandilla house $240,000 (Ex P6)
Amount outstanding to mortgagee ING Bank 181,264 (Ex P2 Tab 10)
Equity 58,800
The insurance claim including the value of the wreck 14,000
The Harley Davidson
$24,000 less $15,000 originally contributed by the
plaintiff from his own resources 9,000Total $ 81,800
Since about February 2007 the plaintiff and her parents have lived interstate and the Cowandilla house has been let for $260 per week; that is $520 per fortnight, which is $80 per fortnight less than the defendant’s mortgage repayments. In addition to that deficiency the defendant would be liable for rates and taxes levied against the property.
In my opinion it is appropriate in this case to use a broad approach and make an order that the defendant pay the plaintiff one half of the nett value of the parties’ property, that is, $40,900 less the value of the property the plaintiff obtained or retained, namely $23,000 which produces a sum of $17,900.
I will hear counsel on the appropriate order to be made having regard to the Memorandum of Caveat registered on the Certificate of Title to the Cowandilla house.
I will also hear counsel on questions of interest and costs.
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