Cole v Sloan No. DCCIV-02-498

COLE v SLOAN
[2003] SADC 57
Judge Rice
Civil
Introduction

This is an application pursuant to s.10(1) of the De Facto Relationships Act, 1996 (“the Act”) for division of property. Such an application may only be made if the criteria in s.9(2) are satisfied. These criteria are met in this case. Both the plaintiff and defendant reside in this State and have done so for the whole period of the relationship. Although the precise period of the duration of the relationship may not be common ground, it was well in excess of the three year requirement. This de facto relationship commenced in about December, 1984 and ceased on about 13th April, 2001.
There are three children of the relationship, Danielle Cole born on 30th January, 1987, Eddie Cole born on 15th January, 1990 and Ricky Cole born on 20th November, 1994.
There is also a requirement that an application under the Act must be made within one year after the end of the de facto relationship (s.9(3)). As mentioned, this relationship ceased on about 13th April, 2001. These proceedings were commenced on 11th April, 2002. On the face of the evidence and material, this application was made within time. Even if it turned out to be the case that the application was commenced a little over a year after the end of the relationship, the period of limitation should be extended to avoid serious injustice to the plaintiff.
The de facto partners
The plaintiff is Neil Jeffrey Cole, who is now aged 42 years (date of birth 20th March, 1961). The defendant is Lee-Ann Ivy Sloan, who is, as far as the evidence discloses, about 39 years of age.
Order for sale and distribution
As is detailed below, the last house property occupied by the plaintiff and defendant was a property at 20 Glenarbon Court, Para Hills (CT Volume 5372 Folio 961). For reasons that are also explained below, that property was sold pursuant to the order of Master Norman made on 18th October, 2002. The net proceeds of the sale, after deduction for such expenses as were referred to in the order, were to be paid into Court. Settlement took place in December, 2002 and net proceeds of $75,384.81 have now been paid into Court. The division of property in this case does not involve the sale of any other real estate. The net proceeds of the sale of the Para Hills property effectively represent the property that is to be divided pursuant to this application.
Course of the proceedings
The hearing of the application did not proceed smoothly. The plaintiff was represented and present at all stages. The defendant, on the other hand, was not represented at any stage of the proceedings before me and, indeed, chose to absent herself for part of the hearing.
The copy documents with which I was supplied include an Appearance that was filed on behalf of the defendant on 28th May, 2002. That Appearance was filed by a firm of solicitors. However, without any additional pleading being filed on behalf of the defendant, the Court, on 23rd October, 2002 Ordered and Declared that the firm of solicitors have ceased to be the solicitors acting for the defendant in the action. The defendant explained that she ignored this application because of personal problems she was experiencing at the time.
On the first morning of the hearing, the defendant sought an adjournment to enable herself to seek representation. She explained that she did not proceed with representation because she believed she had an agreement with the plaintiff whereby the Para Hills property would be sold and the net proceeds divided on a 50/50 basis. On that basis, she believed the proceedings would be discontinued. The plaintiff, through his counsel, Mr Holland, agreed that there had been informal discussions but no agreement reached. Having considered the submissions by and on behalf of the parties, I reached the conclusion that it was in the interests of the parties, particularly the defendant, that the matter proceed without further delay. The matter then proceeded with the defendant acting for herself.
During the course of the examination-in-chief of the plaintiff, he was asked about proposals for where the children would live in the future. (From earlier submissions and comments by the defendant, the position appeared undecided as to with whom the children would live. It also seemed open that one, two or three may be with the plaintiff or with the defendant.) These questions and answers were given followed by an outburst by the defendant (TP57):-
“Q.Earlier this morning Ms Sloan indicated that she thought that the children would be with her, you’ve told us that Danni is not living with you at the moment, as far as you’re aware, is she living with Ms Sloan.
A.Yes.
Q.Has Danni been in some trouble.
A.She has been in a bit of trouble, yes.
MS SLOAN:You have it all now, just have it all. I hope you can live with your conscience and you’re lying, you just have it all. I don’t want a cent and you’ll never see the kids again.
MS SLOAN LEAVES COURT 2.44 P.M.”
The remainder of the examination-in-chief occupies about one page of transcript. I adjourned briefly to see if the defendant had remained in the building and wanted to continue to participate in the proceedings. She was not able to be found and I asked questions of the plaintiff. The plaintiff’s mother also gave evidence on the first day.
Because the defendant had absented herself following an emotional outburst, I wanted to give her another opportunity to be present. The matter was adjourned for 9th December to Wednesday, 18th December for that purpose. The Court communicated with the respondent by telephone and letter advising her of the adjourned date.
On the adjourned date, the respondent informed me that she had instructed a practitioner to appear on her behalf and that the practitioner had agreed to appear. The practitioner did not attend. Upon enquiries made of the practitioner by Court staff, I was advised that the practitioner had, on Monday, 16th December, 2002, been instructed to advise the defendant but that the practitioner had never been instructed to appear on this hearing. In that situation, I was not prepared to delay the matter any further. As is detailed below, the defendant thereafter represented herself, gave evidence and called one witness.
Attitude of the parties to the division
At no stage has the plaintiff suggested that the defendant should not receive anything from the division. It has always been his case that she should receive something and leave it to the Court to decide what the division should be. At the conclusion of all the evidence, it was submitted on behalf of the plaintiff that the division should be 70 per cent in favour of the plaintiff and therefore 30 per cent in favour of the defendant.
As mentioned, the defendant was prepared to accept a 50/50 division prior to the hearing. She quantified that as an amount of $30,000. Bearing in mind that the amount paid into Court is $75,384.81, I have assumed she would have been prepared to accept half of that amount. At the conclusion of all the evidence, the defendant adhered to her view that the proper division should be 50/50 because she would have the children (TP130).
Having set those matters out, I emphasize that it is for the Court to make such orders as it considers necessary “....to divide the property of either or both the de facto partners between them in a way that is just and equitable” (s.10(1)). Obviously I am not bound by the desires of the parties as to the division of property.
De Facto Relationships Act, 1996 - provisions and principles
As noted, this application is made pursuant to s.10(1) of the Act. For present purposes, the matters to be taken into account by the Court upon such an application are set out in s.11(1) of the Act. For ease of reference, the relevant portions of both sections are reproduced:-
“10.   (1)    On an application for the division of property, the court may make orders it considers necessary to divide the property of either or both the de facto partners between them in a way that is just and equitable.”
“11.   (1)    In deciding whether to make an order for the division of property under this Part, and if so the terms of the order, the court –
(a)must consider the financial and non-financial contributions made directly or indirectly by or on behalf of the de facto partners to –
(i)     the acquisition, conservation or improvement of property of either or both partners; or
(ii)    the financial resources of either or both partners; and
(b)must consider the contributions (including homemaking or parenting contributions) made by either of the de facto partners to the other partner or to children of the partners or either of them; and
(c).... (not relevant)
(d)may have regard to other relevant matters.”
The Court is required to consider the types of contributions referred to in s.11(1)(a) and (b). S.11(1)(d) enables the Court to have regard to “other relevant matters” without words of limitation. Sub-paragraph (d) may have application in the present case because it is said, in part, against the defendant that there has been a “negative contribution” by her, that is, by positive conduct or omission she has brought about a diminution of the value of the Para Hills property. I return to this topic later.
As already touched upon, having undertaken the exercise required by s.11(1), s.10 empowers the Court to make orders for the division of property “....in a way that is just and equitable”. That discretion must be exercised judicially. There is no presumption in favour of an equal division of property: Mallet v Mallet (1984) 156 CLR 605 at 610. Further, as was said in Norbis v Norbis (1986) 161 CLR 513 (at 523):-
“The assessment of the parties’ entitlements before the making of an order is another question quite distinct from the assessment of their contributions.”
A little also needs to be said about the meaning of the term “contributions”. The contributions envisaged by s.11(1)(a), although financial and non-financial, are directed towards what I would loosely call the property interests of the partners. The contributions contemplated by s.11(1)(b), although possibly with financial consequences, have a focus upon what each gave to the other, their children or the children of either of them, including homemaking and parenting contributions.
In Dwyer v Kaljo (1992) 27 NSWLR 728, Mahoney JA said this (at 732-3):-
“It is, of course, possible to determine what has been done by one party for the welfare of the other and to assess the extent to which the welfare of the other has been forwarded by it. But, in my opinion, the assessment of ‘the contributions’ made by one party is not one sided; it cannot have been the intention of the legislature that what one party has done for the other is to be considered - and rewarded - in isolation. Regard must be had to what that party has received in return. Special cases apart, what is contemplated by the provision is, therefore, that it is the balance of the contributions of the one over those of the other which is to be taken into account in determining what justice and equity require the court do. At least, in deciding what ‘to it seems just and equitable’, the contributions of each said are to be had regard to.
I do not mean by this that what is involved is merely the weighing of the quantum of the benefits: it may be that quality also is to be weighed. But, in the end, it is, I think, the balance between the contributions of each which is or, at least, the contributions of each which are to be taken into account. But such a balance is not to be determined by the number of lawns mowed or dishes washed. The process is to an extent normative. And that leads to the examination of the assumptions underlying the section and the process it requires to be undertaken.”
As to what is encompassed by homemaking and parenting contributions, the topic was the subject of detailed discussion in the recent Full Court decision in Arnold v Dalton [2002] SASC 429, delivered on 20th December, 2002. In that case, Bleby J, on behalf of the Court (Doyle CJ and BesankoJ), said this (at paras.53-58):-
“Section 79(4) of the Family Law Act 1975 (Cth), as it stood until 1987, specified what a court should take into account when an order for division of property is necessary between parties to a marriage. It provided:
‘(4) In considering what order should be made under this section the court shall take into account –
(a)the financial contribution made directly or indirectly by or on behalf of a party … to the acquisition, conservation or improvement of the property, or otherwise in relation to the property;
(b)the contribution made directly or indirectly to the acquisition, conservation or improvement of the property by either party, including any contribution made in the capacity of homemaker or parent;
(c)the effect of any proposed order upon the earning capacity of either party.’
Sub-paragraph (b) is of particular relevance in the present context. Speaking of that paragraph in Mallet v Mallet (1984) 156 CLR 605 at 623, Mason J said:
‘The Family Court has stated – and in my view correctly stated – that the purpose of s 79(4)(b) is to give recognition to the position of the housewife who, by her attention to the home and the children, frees her husband to earn income and acquire assets: In the Marriage of Rolfe (1977) 25 ALR at p 219; In the Marriage of Wardman and Hudson (1978) 33 FLR 196; In the Marriage of Crawford (1979) 35 FLR 489 at pp 495-496; In the Marriage of Aroney (1979) 5 Fam LR 535 at pp 539-540; In the Marriage of Albany (1980) 6 Fam LR 461 at p 471; In the Marriage of Dupont (No. 3) (1981) 7 Fam LR 747; In the Marriage of Mahon [1982] FLC 77 and In the Marriage of Racine and Hemmett (1982) 8 Fam LR 716 at p 717. And it has been held, again correctly in my view, that the Act intends that the wife’s contribution as homemaker should be recognized in a substantial and not merely in a token way.’
See also Parij v Parij (1997) 72 SASR 153 at 163-164.
Section 79(4)(b) of the Family Law Act as considered in those cases is not in identical terms to s 11(1)(b) of the De facto Relationships Act. The latter provision does not require consideration of the contribution that homemaking or parenting contributions may have made to the acquisition of the property in question. However, the provision of contributions of that nature will almost inevitably affect the ability of one partner to make a financial contribution towards the acquisition of the property. The more general requirement of s 11(1)(b) now has its counterpart in the present s 74(1)(c) of the Family Law Act.
The question is what is encompassed by homemaking and parenting contributions and how they are to be valued. As Mason J noted in Mallet v Mallet (supra) at 623 in relation to the relevant provision of the Family Law Act, the judges of the Family Court have held that the contribution of the wife as homemaker is to be equated to the contribution of the husband as income earner. In a judgment with which Asche SJ and Gun J agreed, Evatt CJ said In the Marriage of Rolfe (1977) 25 ALR 217 at 219:
‘The purpose of s 79(4)(b), in my opinion, is to ensure just and equitable treatment of a wife who has not earned income during the marriage, but who has contributed as a home-maker and parent to the property. A husband and father is free to earn income, purchase property and pay off the mortgage so long as his wife assumes the responsibility for the home and the children. Because of that responsibility she may earn no income or have only small earnings, but provided she makes her contribution to the home and to the family the Act clearly intends that her contribution should be recognized not in a token way but in a substantial way. While the parties reside together, the one earning and the other fulfilling responsibilities in the home, there is no reason to attach greater value to the contribution of one than to that of the other. This is the way they arrange their affairs and the contribution of each should be given equal value.’
In considering the phrase ‘in the capacity of homemaker or parent’ in s 79(4)(b) of the Commonwealth Act, the Full Court of the Family Court (Watson SJ, Wood SJ and Fogarty J) said In the Marriage of Wardman and Hudson (1978) 33 FLR 196 at 204:
‘It appears to us that the latter portion of that phrase is clearly directed to the ordinary circumstance where a wife remains in the home looking after the home and the children thus freeing the husband from those obligations and enabling him to earn in a more direct fashion and thus involve himself more directly in the acquisition, conservation or improvement of the property in question. In any event the considerations contained in s 79(4) are not exhaustive and clearly, in our view, in considering what order is just and equitable under s 79, it would be wholly inappropriate not to give full and significant regard to the ordinary situation in the community, namely a situation where the wife directs herself, particularly during the period when the children are young, away from outside employment towards the conduct of the home and the rearing of the children, and that in ordinary circumstances that is a contribution which in every way ought to be equally equated to the efforts of the husband who is thus freed to pursue his direct outside employment.’
See also In the Marriage of Crawford (1979) 35 FLR 489 at 495-496.
These cases are, of course, speaking of a situation where the relationship is subsisting and the partners have chosen a particular means of providing for the family unit. The period we are considering in this case is the period between the cessation of the relationship and the trial. Nevertheless, the contributions being spoken of in s 11(1)(b) of the Act are of the same type as those being spoken of in those cases. It is the contribution being made by one partner by staying at home and performing the usual domestic and child raising functions for the benefit of the whole family unit. The paragraph requires some assessment both of the financial contributions made or to be made by each partner and of the relative contributions of each partner to those domestic and child-raising activities, the demands for which will change particularly as children grow up. The principle applicable to s 79(4)(b) of the Family Law Act is that in the situation where one partner is engaged in paid employment and the other remains at home, the contributions are valued as equal. I consider that to be an appropriate starting point for the application of s 11(1)(b).”
Again, later (at para.66):-
“The principle of equal value of homemaking contributions to financial contributions assumes, as I have said, a continuing family unit living in the same house, and the relative contributions being made to the totality of the domestic requirements, including those of the employed partner.”
There is one additional matter of principle to be considered, that is, how does the Court evaluate the matters raised in s.11 and then consider the division for the purposes of s.10. McLelland J in Davey v Lee (1989) 13 Fam LR 688, in discussing s.20 of the New South Wales legislation, which is not dissimilar to this State, said (at 689):-
“By that section the court is empowered to make such order adjusting the interests of the de facto partners in property of both or either of them as seems just and equitable having regard to ‘contributions’ of the kinds described in para (a) and (b) of sec. 20(1). In approaching the exercise of that power it is necessary to bear in mind that a domestic relationship differs in fundamental respects from a commercial partnership .
Typically a de facto relationship involves the mutual conferring and receiving of benefits (be they emotional, social, sexual or intellectual) of a kind which are incapable of evaluation in monetary terms, as well as other benefits which are, or may be in varying degrees, capable of such evaluation. Often, one or other, or both, of the parties may value non-material contributions to the welfare of the family more highly than material contributions. These however are not matters which lend themselves to detailed examination and analysis by a court.
Furthermore in the context of such a relationship, it would usually be highly artificial to attempt to evaluate ‘contributions ... to the welfare of the family’ of the kinds referred to in sec.20(1)(b), including those ‘made ... in the capacity of homemaker or parent’ simply by reference to what it might cost in the market place to hire the provider of a particular service, such as a housekeeper or childcarer, to perform similar activities to those of the contributing partner. In the context of a domestic union, ‘homemaking’ and ‘parenting’ are typically shared activities, and although it may often be found that one partner devotes more time than the other to particular tasks within these general descriptions, it would rarely be feasible or realistic to attempt to evaluate such relative contributions in monetary terms, or in isolation from the nature and incidents of the relationship as a whole.
It is thus apparent that the court is not required under sec. 20 to undertake a reductionist process analogous to the taking of partnership accounts (notoriously one of the most time-consuming and expensive of litigious exercises) by examining every alleged ‘contribution’ of the kinds described in the section with a view to putting a monetary value on it in order to reach an accounting balance one way or the other, which is to be then eliminated by the requisite financial adjustment. Rather the court is required to make a holistic value judgment in the exercise of a discretionary power of a very general kind.”

Although there may be some relationships and contributions that lend themselves to an “asset by asset” approach, I propose to adopt the global approach when it comes to making an order which is just and equitable.
I have already noted that the Para Hills property was the only substantial asset at the time of the separation of the partners. The net proceeds are to be divided.
Historically, there was an earlier property. It is necessary to trace the real estate and other property owned by the partners from time to time in combination with their various contributions as contemplated by the Act.
Sheriff Street, Salisbury East
As mentioned, the plaintiff is now 42 years of age. He attended the Para Hills West Primary and Secondary Schools. During third year high school he left to obtain employment. He worked at a Shell Service Station for five to six years and then moved to M.S. McLeod, tyre fitters, in 1981. He met the defendant in 1981, they were engaged in May, 1984, but never married. He stayed at M.S. McLeod until about 1982 when he moved to Elizabeth Haulage driving a taxi truck.
The plaintiff said in evidence that he and the defendant commenced to live together when he purchased the property at 8 Sheriff Street, Salisbury East. He thought that was May/June, 1984, but the Contract Note for the purchase of the property (exhibit P1) was signed on 18th October, 1984 with settlement due for 6th December, 1984. The purchasers were expressed to be the plaintiff and/or nominee. A later condition of the contract said that the defendant was the nominee purchaser. The plaintiff and the defendant became the joint purchasers. The purchase price was $55,000. A deposit of $20,000 was payable at the expiration of the “cooling-off” period. The contract was subject to the condition that the State Bank of South Australia agree to provide not less than $38,000 on the security of a first mortgage. In fact, only $2,000 was paid by way of deposit and it was paid by the plaintiff. A loan of $38,000 was secured from the State Bank with both parties here as joint borrowers and mortgagors.
Because only $2,000 was paid by way of deposit, over $16,000 was due by the plaintiff and defendant at settlement. The plaintiff financed that amount from the sale of a Harley Davidson motor bike owned by him and $7,000 from his mother (the money coming from his father’s estate, his father having died earlier in 1984). He obtained $10,000 from the sale of the Harley Davidson.
On the plaintiff’s account, the defendant worked very little when they were keeping company between 1981 and 1984. The defendant brought no assets to the relationship. As mentioned, the plaintiff provided the deposit and over $16,000 to make up the purchase amount.
The plaintiff continued to work full-time. He moved from Elizabeth Haulage to James Hardie Irrigation. Their first child, Danielle, was born in January, 1987. On the plaintiff’s account, from the time they were living together in late 1984 until the birth of their first child, the defendant worked for between six and twelve months at the winemakers, Tolleys, but not during her pregnancy.
Work injury to plaintiff - lump sum compensation
In 1986, the plaintiff had been injured at work when he fell down some steps. He had significant injuries to an ankle, his back and neck. In all he had four operations. His leg was in plaster for some time and he was on crutches for about eighteen months. He was paid worker’s compensation and that was used as if it was wages. His wages were used to pay the mortgage and normal household expenses.
The work injury was the subject of redemption by a lump sum payment in May, 1989. The documentation (exhibit P2) confirms that the plaintiff’s claim was settled for $105,000 plus legal costs. The plaintiff was to receive $95,000 clear after repayment of sickness benefits that had been paid to him by the Department of Social Security.
It is not easy to understand how the bulk of those monies was disbursed. $17,057.18 was paid to Custom Credit to pay off a loan to purchase a new Commodore Sedan that became the family car. However, $77,298.82 was paid to the Westpac Bank on 22nd May, 1989. The reason for that payment to that bank remains unexplained, but later documents show it must have been used mostly to pay out the State Bank mortgage.
Other expenditure
The evidence also suggests that about $20,000 of the plaintiff’s lump sum payment was used to renovate the Sheriff Street property. Further, although it is difficult to be precise about this from the evidence, the plaintiff bought a Camaro motor vehicle for himself (price unknown) and spent about $20,000 on it. He bought a similar car for his brother for $5,000. The plaintiff’s own Camaro was sold in 2001 for $22,000 and that money was used to buy a new Harley Davidson for himself.
At about the same time, $18,000 to $19,000 was borrowed to buy a Holden Statesman. In February, 2001 that vehicle was involved in an accident when there was no comprehensive insurance. It was a write-off but the loan obtained through the Westpac Bank still needed to be re-paid. Repayment was made by the plaintiff selling his near new Harley Davidson motor bike.
Subsequent employment of the plaintiff
Although the plaintiff was paid a lump sum in 1989, he was able to resume employment in 1991 for Australia Staging & Rigging as a scaffolder and rigger. He worked for this employer until about late 1999. He worked for six months per year in Adelaide and the other six months at different events interstate. In that period his pay was, in effect, sent home for use to pay the mortgage and normal household expenses.
Sale of 8 Sheriff Street, Salisbury East - purchase of 20 Glenarbon Court, Para Hills
On 18th November, 1990, the plaintiff and defendant contracted to sell the Sheriff Street property for $85,000 with settlement due on 21st December, 1990 (exhibit P3). The plaintiff and defendant had already signed a contract to purchase another property at 20 Glenarbon Court, Para Hills for $118,000. That contract was signed on 16th October, 1990 with settlement on 4th January, 1991 (exhibit P4). The sale of Sheriff Street yielded them $74,619.28 after payment of all expenses. That money was put into the Para Hills property together with a $45,000 loan from the State Bank. At about that time, the plaintiff received $10,000, again from his father’s estate. About $2,000 of that was put towards the property and the balance used to buy another motor bike for him. The defendant did not contribute any money towards the purchase of Glenarbon Court.
Further employment of the plaintiff
The plaintiff left his employment with Australia Staging & Rigging in late 1999 due to a mental breakdown. For most of the next twelve months he was on Centrelink benefits. In about December, 2000 he obtained employment with Trams Pty Ltd doing scaffolding work, initially at Pelican Point and then at Moomba on a three weeks on, one week off basis. The plaintiff went a few times to Moomba but by March/April, 2001 his relationship with the defendant was at an end. His pay was paid into a joint bank account at the Commonwealth Bank. After about mid-April he left the home at Para Hills and returned to live with his mother. He has not lived with the defendant since. Since May, 2001 he has been on Centrelink payments. He now rents a house at Salisbury Downs and he and the defendant had been able to agree upon access visits by the children once per fortnight, mainly the two younger children. At the time of trial, however, the two younger children lived with him.
Sale of Para Hills property
As noted earlier, the plaintiff secured an order of a Master of the Court for the sale of the house. Up to that point, the defendant and the three children had been living in the house. The defendant was obliged to vacate the house by about the 7th November, 2002. Since that time the two younger children have lived with the plaintiff. The plaintiff took only a bed and old lounge from the house. He wants nothing else from it. He is content for the defendant to have the remaining furniture, electrical goods and appliances.
Child support
When the children were living with the defendant, the plaintiff was supposed to pay child support, that is, from about mid-April, 2001. As at 19th October, 2001, an amount of $12,745.98 was owing for child support. The plaintiff sought a review of his child support obligations and, on 7th March, 2002, his child support liability was reduced to $5.00 per week from 1st October, 2001 (exhibit P5).
Other loans
Unbeknown to the plaintiff, household accounts remained unpaid when he was working at Moomba. $2,000 was borrowed from each of the plaintiff’s sister and a friend of the plaintiff to pay those outstanding accounts. Those loans have not been repaid.
The plaintiff also took out a Better Business Loan from the Commonwealth Bank to fund repairs and work on his Camaro. The amount of the loan was $4,000 and was paid off a few months prior to trial from a $7,000 payment to the plaintiff (after some tax was paid) when his superannuation could be drawn upon because of hardship. The balance of the money was used to buy an old Falcon for himself.
After separation, the plaintiff took out a loan for about $3,000 to $4,000 with Australian Guarantee Corporation to repay household debts (TP51-52). According to his evidence, this loan was repaid using money from superannuation, but that does not show on the Annual Benefit Statement (exhibit P9). I will proceed on the basis that the plaintiff repaid the loan from monies that became available to him.
Mortgage payments
The payments of the mortgage were made from the joint account with the Commonwealth Bank by means of automatic deductions. The plaintiff’s pay went automatically into the account as did Social Security payments. An examination of the bank statements (exhibit P6) from about July, 2000 onwards shows that, on a number of occasions, there was insufficient money in the account to meet the home loan repayments. This situation existed despite the good money the plaintiff was earning that was going into the account (see exhibits P7 and P8 also).
Although the bank statements reveal withdrawals at shopping centres and supermarkets, they also show a large number of withdrawals, totalling quite a considerable amount, from various hotels. There was no dispute that the plaintiff did not make these withdrawals. That led to the suggestion, which I consider later, that the defendant had a possible gambling problem that was compromising them financially. The plaintiff was unaware of the state of that account.
Superannuation
The plaintiff had $40.00 deducted from his wages for superannuation. He was a member of CBUS (Construction and Building Industry Superannuation) Fund. Exhibit P9, the Annual Benefit Statement, showed that, as at 30th June, 2002, there was an outstanding balance of $13,801.33.
The evidence did not disclose any superannuation by the defendant.
Homemaking - parenting
The plaintiff said in evidence that, during the course of the relationship, he did the cooking for himself, the defendant and their children. It was not disputed that he did that for the majority of the time and I propose to proceed on that basis (TP41, 98, 100). The plaintiff said that the defendant looked after the house (TP41). Although the plaintiff did not mention parenting as such, his absence at work for the majority of the time leads me to infer that the main portion of the homemaking and parenting was done by the defendant (see also TP60-2, 66). That was certainly the defendant’s evidence and she was not challenged on that.
The plaintiff also said that the defendant was a good mother and that position did not change until the plaintiff was working away (TP58). He was not any more precise about the stage from which he observed this change.
After Glenarbon Court, Para Hills vacated - suggestion of a “negative contribution” by the defendant
After the Para Hills house was vacated by the defendant and the children, the plaintiff returned to clean it up in preparation for sale. He observed certain damage which was photographed (see exhibit P11). He said that damage was not there at the time he left in about April, 2001, approximately 18 months earlier. The photographs also show a large amount of rubbish and broken furniture in the backyard such that the plaintiff needed to remove it before the house could be put on the market. The plaintiff claims those items (see receipts, exhibit P12) which total $794. The plaintiff contends that he should not have to bear any of that cost in any event. There is no reason to construe the Act as referring only to positive contributions. There are many actions a party could perform that impact negatively upon the value of an asset.
Proposals for where the children live
As mentioned, the two younger children presently live with the plaintiff. The older child does not live with him and he acknowledged there was little chance of her doing so in the future (TP62). The likelihood is that she will live with her mother. The plaintiff said that no final decision has been made by the parents about where the two younger children will live but that they are welcome to live with him (TP63, 66).
The plaintiff also said that the defendant had a new boyfriend and was not often home. It was for that reason that the plaintiff said he took the two younger children to live with him. The defendant had not, at the time of trial, tried to get the two younger children back.
Mrs M.C. Cole
The plaintiff called his mother on a number of topics. She confirmed that she gave the plaintiff two amounts from her husband’s estate, $7,800 and $10,000 (TP70).
Mrs Cole said that the defendant’s involvement with running the house, cleaning, washing and shopping, was alright to start but that it diminished over time such that it was all done by the plaintiff. She did not say over what period it was acceptable and over what period there was a transition.
Mrs Cole also confirmed that she loaned $1,000 to the plaintiff to clean up the house and make it ready for sale.
Case for the defendant and discussion
The defendant gave evidence and called a friend, Lynn Dodd, who gave evidence directed towards the extent of the defendant’s employment during the course of the de facto relationship. That is considered below.
The defendant gave evidence about her employment prior to, and subsequent to, the birth of their first child, Danielle. In all, the defendant says she worked about six years during their relationship of approximately 16 years.
I observe that, if that is correct (and the plaintiff disputes such a long period), it means the plaintiff was looking after the children for the major portion of that time. In that situation, their respective contributions varied in accordance with their respective work commitments, including the plaintiff’s ability to work after his accident. The various authorities to which I referred earlier dictate that where one partner is engaged in paid employment and the other remains at home, the contributions are valued as equal. Sometimes the roles of the partners may be reversed, but that does not affect the general approach of equality in this case.
The defendant also contends that she put a lot more into the house than the plaintiff acknowledged. Any money put in by the defendant must have come from paid employment because she did not mention any other source of capital or income. Again, that being so, on the approach being adopted in this judgment, I do not propose to examine every asset and liability of the relationship with a view to ascertaining who was responsible for it. If there was a marked discrepancy in the provision of assets or the incurring of any liabilities, that may call for a detailed examination akin to an accounting, but that is not the case here, particularly given the duration of the relationship.
In that same vein, the defendant maintains, and it is not really in dispute, that the plaintiff spent a great deal of money on new motors, repairs and modifications to a Camaro car for himself and one for his brother. On the other hand, the plaintiff maintains, probably correctly, that the defendant spent too much money on gambling, particularly poker machines. It is not appropriate to conduct an accounting to ascertain whether the plaintiff spent more money on cars and the like, than the defendant spent on gambling. Both activities are lawful. The defendant, at the very least, acquiesced in the plaintiff’s use of money in that way, and not all the money was lost because an asset remained. Although the plaintiff did not know of the defendant’s gambling, that was not crucial and, in any event, it was simply a form of relaxation against a background of a deteriorating personal relationship. In any event, my overall assessment of the evidence, oral and documentary, is that the plaintiff spent a lot more money on cars and bikes than the defendant spent gambling, but saleable assets remained and, when sold, were put back into the relationship. On the evidence I am unable to say the plaintiff squandered any significant amount of money.
The defendant acknowledged that $2,000 had to be borrowed from the plaintiff’s brother-in-law to pay outstanding bills that had accumulated towards the end of the relationship. The defendant maintained that there was insufficient money in their joint account because of the plaintiff’s drinking and drug abuse, even allowing for some gambling on her part. I do not find myself able to resolve that allegation. However, I do find that the defendant squandered a modest amount of money towards the end of the relationship.
The defendant made a number of other allegations in her evidence about the expenditure of money relating to the house, cars and motor bikes. The plaintiff was not cross-examined about them because the defendant absented herself before the commencement of cross-examination. I find myself unable to make any finding on them. Consistently with what I said above, I doubt whether it would have any significant impact on the division. Most, if not all, relationships have a degree of give-and-take within them that permits, accepts or acquiesces in unilateral expenditure of funds regarded as joint funds.
The defendant also called Ms Lynn Dodd. Ms Dodd purported to support some of the evidence of the defendant as to periods of employment after the commencement of the relationship. Although much of her evidence was hearsay and supposition, I accept that there were times when the defendant worked for Michell Leather, Clipsals and a business called Scholles.
Findings
I find the following:-
1.The plaintiff and defendant lived together in a de facto relationship for about 16 years.
2.There are three children of that relationship presently aged about 16, 13 and 8 years. At the time of trial, the two younger children lived with the plaintiff. The eldest child was not then living with either parent.
As to the future living arrangements for the children, the eldest will not live with the plaintiff and will, in all probability, choose to live with the defendant. At the time of trial, the plaintiff and defendant had not decided where the two younger children would live. The plaintiff says they are welcome to remain with him. The defendant will be in a position to provide a home for them from her share of the division of property involved in these proceedings.
3.In December, 1984, the plaintiff and defendant purchased their first home, at Sheriff Street, Salisbury East, for $55,000. The purchase was financed by a $38,000 loan from the State Bank and the remaining money from the plaintiff.
4.The plaintiff was injured in a work accident in 1986. In May, 1989 he received $95,000 clear by way of a redemption payment. From that, the house at Salisbury East was mostly paid off, although the evidence does not disclose how much was outstanding at that time. About $17,000 was used to buy a new Commodore sedan which became the family car. $20,000 was used to upgrade the Salisbury East property. The plaintiff spent well in excess of $20,000 purchasing and doing-up a car for himself. That car was sold in 2001 to enable the plaintiff to buy a new Harley Davidson motor bike for himself. Not long after the motor bike was purchased, it had to be sold to pay off an outstanding loan for a Holden Statesman that was written-off, following an accident, when there was no comprehensive insurance.
5.I find that the plaintiff worked for the major portion of their time together. He was off work following the work accident, but his worker’s compensation was treated as wages and most of the lump sum payment eventually went into jointly owned assets or paying off joint debts.
6.The plaintiff’s wages were paid into a joint account and were available to both parties to pay household accounts, including the mortgage, and for recreational purposes.
7.In October, 1990, the parties purchased a house at 20 Glenarbon Court, Para Hills, for $118,000. The Salisbury East property was sold and they realised about $74,600 net from the sale. That money was put into the Para Hills property. A loan of $45,000 was obtained from the State Bank plus $2,000 from the plaintiff, being part of a $10,000 gift from the plaintiff’s mother to him. The remaining money from the $10,000 was used by the plaintiff to buy another motor bike for himself.
8.During the period of the de facto relationship, the defendant worked on‑and-off for a few years. I cannot be any more precise than that. I cannot say how much she earned overall or on an hourly basis. I do find, however, they were unskilled, manual jobs. Whatever income she earned, it was put into the family unit.
9.I find that the parties had a broad arrangement whereby the plaintiff was engaged in paid employment away from the home and the defendant stayed at home, contributing by means of homemaking and parenting. Depending upon circumstances and need, sometimes those roles were reversed. Between them they either worked or were involved in homemaking and parenting. There is insufficient evidence to treat them other than equally in those regards.
10.Leaving to one side income earned from paid employment by both parties during the course of the relationship, I find that it was only the plaintiff who brought financial resources to the relationship. I regard the worker’s compensation payments as equivalent to income from paid employment. I regard the lump sum payment in redemption in the same way because it related to the weekly payments and was treated by the parties as their income for some years.
11.As mentioned, the eldest child, Danielle, will, in all probability, live with the mother. I cannot say where the younger children will live. I am able to find that the children will spend at least one weekend a fortnight in the home of the parent with whom they are not living.
12.I find that each party indulged in recreational and discretionary spending. However, that spending was not such by one party as to be substantially in excess of that spent by the other party. Even if the plaintiff spent more, the asset remained an asset of the relationship.
13.At a time when the plaintiff had provided money to the defendant, the defendant unreasonably failed to pay some accounts towards the end of the relationship. The plaintiff was forced to borrow a total of $4,000 to meet those outstanding accounts. The plaintiff should receive that $4,000 from the defendant’s share of the fund and before any payment to her.
14.The defendant left the house at Para Hills in October, 2002 in such a poor state that the plaintiff needed to spend money on it to make it ready for sale. The plaintiff borrowed $1,000 from his mother. Some of the rubbish may have been there when the plaintiff left some eighteen months earlier. I fix the amount of $500 that the plaintiff should also receive from the defendant’s share of the fund and before any payment to her.
Conclusion

It remains for me to decide upon a division of the remaining fund in a way that is just and equitable. In my view, just and equitable division is 60 per cent to the plaintiff and 40 per cent to the defendant. In determining that division, I have had particular regard to the duration of the relationship and the quantum of assets brought to the relationship by the plaintiff.
So there is no doubt about the position, I order a 60/40 division of the funds paid into Court, but that before any payment is made to the defendant an amount of $4,500 be deducted from it and credited to the payment to be made to the plaintiff.
I order that the parties retain personal property presently held by each.
I will hear the parties on the question of costs.

[2003] SADC 57

17 April 2003