Condoluci v Condoluci No. DCCIV-01-592

CONDOLUCI v CONDOLUCI
[2002] SADC 159
Judge Herriman
Civil
Introduction

This is a claim for relief pursuant to section 10 of the De Facto Relationships Act 1996 (“the Act”).
At the time of trial, the plaintiff was aged 66 and the defendant, 70.
On the plaintiff’s case, they commenced living together in a de facto relationship in August 1992 and it continued until they separated on 22 March 2001, save and except for a short period in late 1999, when they were apart for about one month.
For his part, the defendant admits that they lived in the same premises over most of that time, but contends that theirs was not a de facto relationship within the meaning of the Act.
The plaintiff was represented at trial by counsel, but the defendant represented himself, albeit with some help from his daughter, Vicky.
At the outset, I will briefly describe the personal history of each of the parties, prior to their meeting, then the circumstances of meeting and later sharing the same house, and their respective contributions, financial and otherwise, to what I will describe, neutrally for the moment, as their “cohabitation”.
The Plaintiff’s History
The plaintiff was born in Denmark in 1936. She completed senior schooling there and married her first husband in about 1955, at the age of 19. That marriage foundered after ten years, but there were three children born of it.
The plaintiff married for a second time in Copenhagen in 1965. Her husband was named Csordas and he was of Hungarian extraction. In the following year, they migrated to Australia with their recently born twins and the youngest child of the plaintiff’s first marriage. The older children of that marriage remained with the plaintiff’s former husband. After their arrival in Australia, another three children were born of that second marriage. She thus has eight children, ranging in age from 26 to 46. Five of them live in Australia, one is in New Zealand and the two older ones remain in Denmark.
The plaintiff separated from her second husband in 1991 and, in later family law proceedings, obtained a cash property settlement of approximately $76,990, in addition to some items of furniture from their former home and a Ford Cortina motor vehicle, which she still retains. By that time, the children of the second marriage had all left home, save for the youngest child, Kathryn, who then moved with her mother to rented premises at Morphett Vale. The plaintiff remained at those premises until some time after meeting the defendant, whereupon she went to live at Tranmere and Kathryn went to live elsewhere.
The Defendant’s History
Less information came out at trial about the defendant’s personal history and, indeed, some of it was contentious, but I am satisfied about the following:
.He was born in Italy on 29 January 1932 and later migrated to Australia.
.At some undisclosed time, he was married to Margaret Condoluci and there were three children born of that marriage, Vincenza (“Vicky”), Valentino and Loretta.
.On a date, which was disputed at trial, he and his wife separated. The plaintiff said that the defendant informed her that that separation occurred in 1989. Certainly, she said, it had occurred by August 1992, because it was then that she went to live with him at his home at 11 Britton Avenue, Tranmere (“Britton Avenue”). Of course, the defendant denied she ever lived at Britton Avenue until she acquired her interest in it, in 1995. He said that he separated from Margaret as late as 1992 or 1993. Elsewhere, he said that by January 1992, his wife and two daughters were living in a house immediately behind his own, but facing into Davies Avenue, Tranmere. His son was, by then, living elsewhere.
.Following their separation, there were property settlement proceedings, but they were compromised in about November 1995, when she was paid the sum of $78,000 and transferred to the plaintiff, either directly or through the defendant, her one‑half interest in Britton Avenue. It was not disputed at trial that the plaintiff paid $60,000 to the defendant to purchase that interest, that that sum became part of the $78,000 payout and that it was a fair estimate of the value of a one‑half interest in Britton Avenue.
.Some time after separation (a time not clearly identified at trial), Margaret Condoluci went to live at Davies Avenue, Tranmere with her daughters and, later, by herself, to an address at Paradise, where she remains to this day.
.Margaret Condoluci has suffered, and continues to suffer, from a mental illness.
.For some 38 years prior to his retirement in November 1994, the defendant worked with the Department of Road Transport as a bus driver and machine operator.
The Plaintiff’s Account of their Meeting and their Relationship
The circumstances of their original meeting and why the plaintiff left Morphett Vale to live at Britton Avenue, were disputed at trial. On the plaintiff’s account, they were as follows:
.On about 25 January 1992, she saw an advertisement in the personal columns of The Advertiser newspaper (Exhibit P2), in the following terms:
“ITALIAN/AUSTRALIAN gent. 58 yrs. old, 5 ft. 8 in., well groomed, non‑smoker, financially secure. Seeks an honest, sincere and presentable lady, up to 52 yrs. old, for companionship. View marriage. Genuine replies to B108, Advertiser.”
.She said she wrote in response to the advertisement, having no idea, then, of who had placed it. She did not keep a copy of her letter, but subsequently, she said, the defendant telephoned her at her home number, a number which her letter of response had provided. She spoke to him and they agreed to meet at the Pizza Hut at Morphett Vale on that same day, a day she identified as 8 February 1992.
.The meeting took place and they spoke for some three hours about many things. In the course of their conversation, the defendant informed her that sex was part of his diet. She said she did not respond to that, but nor was she offended by it.
.She said that the defendant then told her that he had received a lot of answers to his advertisement, but, having met her, he had decided he did not have to look any further.
.It was then arranged that he would ring her, but he failed to do so within the next seven days, so she telephoned him. He explained that he had been busy, in the meantime, because his car had been stolen (separately, in his evidence, the defendant acknowledged his car had, indeed, been stolen about then). At all events, following their discussions, he invited her to his place at Britton Avenue for dinner and she went there about one week later.
.She said that after dinner, they sat in the lounge watching television and then they went to his bedroom and spent the night there. They had sexual intercourse. She said she remained at his house during the next day and on the following night they slept together again, once again having sexual intercourse. At that point, a relative of his came visiting, so she returned home.
.Their third meeting occurred when he came to her house on the following weekend and spent the night with her. Once again, sexual relations occurred.
.For the next several months, she said, they met several times each week, either at her place or his, and on every occasion they slept together and had sex. Eventually, in August 1992 and by mutual agreement, she left her home at Morphett Vale and went to live with him at Britton Avenue.
.At that time, she said, she was receiving a single pension. The defendant told her that to ensure she continued to receive it, she should rent her own premises nearby, but still live with him at Britton Avenue. In consequence of that, she said, she entered into an agreement in August 1992 to rent premises in Sando Avenue, Tranmere (“Sando Avenue”). Later, she said, when she acquired her interest in Britton Avenue, they went to the Social Security office to set the record straight, but, instead, he had her sign a declaration there to the effect that they were not living at Britton Avenue as husband and wife. He threatened to evict her if she did not, so she obeyed.
.In August 1992, the defendant and his son helped her move all her furniture from Morphett Vale and it was distributed variously between the premises at Sando and Britton Avenues. She never slept at Sando Avenue, however, except for a time when their bedroom at Britton Avenue was being painted and they slept together at Sando Avenue for two nights. She continued to rent Sando Avenue for some three years, until 1995.
.Otherwise, she said, they slept together at Britton Avenue for the whole of the claimed period of cohabitation, a period broken only by a brief separation which occurred between 24 November and 25 December 1999.
.The plaintiff went on to describe their sexual relationship. It was, on her account, an intense one. She said they had sexual intercourse every night during the entire time they lived together, save for that brief period of separation. Sometimes, they had intercourse more than once a day. They shared the same bed, wore no clothes to bed and showered together. They were both active and willing in this activity. She said the defendant was apt to mention their level of sexual activity in the presence of their friends and acquaintances, but he never ventured much upon the details of it. She mentioned the names of various of his friends and family to whom he mentioned it. In particular, she spoke of an occasion, related to her by the daughter, when the defendant told her friend’s daughter and husband of their sexual activities.
.She described their living arrangements in the house and how it was that they occupied the same bed and bedroom. There was another bedroom in the house with a single bed, which she herself used as a storeroom for some of her belongings.
.On 5 September 1997, the plaintiff changed her name by deed poll from Csordas to Condoluci (Exhibit P4). Before doing so, she said, she discussed it with the defendant and he encouraged her to do it, saying he did not like her married name.
.From time to time, the defendant brought Margaret Condoluci to Britton Avenue for meals prepared by the plaintiff and for other celebrations, and then took her home afterwards. Although the plaintiff and Margaret got on reasonably well together, the plaintiff resented the defendant bringing her there.
.The plaintiff described how, just prior to the defendant’s retirement and in mid‑1994, his daughter Vicky came to stay at Britton Avenue. According to the plaintiff, it was planned that Vicky would stay a short while, but in fact she remained there for some twelve months, sleeping in the spare room. She was then a 34‑year‑old single woman. The plaintiff said she had a number of personal problems, including that she heard voices. She discussed these with the plaintiff. At trial, the plaintiff produced a Christmas card from Vicky, given at Christmas 1998 and thanking her for her help (P8).
The defendant said in his evidence that the plaintiff did not reside at Britton Avenue until November 1995 and that she was at this time at Sando Avenue. Otherwise, he did not lead evidence at trial commenting on any of these observations relating to Vicky, nor did Vicky herself give evidence about them.
.The plaintiff said that she and the defendant lived together as man and wife over the whole of the claimed period of cohabitation. They shared household tasks (she performing most inside jobs and he, outside ones), as well as expenses, they shopped and ate together, she kept house even while Vicky was with them and prepared meals and acted as hostess when Margaret or other family came over for a meal. They socialised as a couple at home and on outings with family and friends, and they went on holidays together. She produced a booklet of photographs of such events (Exhibit P37) and in many of them she is pictured standing or sitting with the defendant in what might be described as casually intimate poses.
.At the time they had commenced cohabiting, the defendant had not been divorced from his wife, albeit that she said he had separated from her in about 1989.
.In 1995, there were property settlement proceedings between the defendant and his former wife and, close to trial in November 1995, negotiations reached the point whereby Margaret Condoluci was prepared to settle and transfer her interest in Britton Avenue upon payment to her of $78,000. Following discussions with the defendant and his solicitors, the plaintiff decided to assist the defendant in accepting that proposal by advancing him $60,000 from her savings, in consideration of which, she would receive a one‑half interest in Britton Avenue. Its total agreed value was then $120,000. This proposal was accepted by the defendant, who then, himself, paid the balance of $18,000 to complete the settlement. In addition to the $60,000, the plaintiff then paid out some $1,850 by way of stamp duty and settlement fees.
.At trial, the plaintiff then produced two items of jewellery, which she said the defendant bought for her, on separate occasions in 1993 and 1996, from a jeweller in Adelaide. She was with him on each occasion. One item was a gold ring, on the inside of which was inscribed the defendant’s name, and the other, a locket in the shape of a gold heart, which contained photos of each of them and the inscription “I love you, Dom”.
She said that immediately after each was purchased by the defendant, they walked together to an engraving place, where the inscriptions were effected in accordance with the defendant’s instructions.
.In about March 1996, the plaintiff said, they each went to Mr Carbone, solicitor, and had wills prepared. She produced her own will (Exhibit P19) dated 11 March 1996, which, inter alia, provided:
(1)that, upon her prior death, the defendant was to have a life interest in her share of Britton Avenue, but that upon his death, the remainder was to pass to her children;
(2)that in the event the defendant should predecease her, she was to be buried in “prepaid vault no. 72 at the Dudley Park Cemetery where the said Domenico Condoluci is interred”.
She said that the defendant had had a will prepared in similar terms, with corresponding burial instructions. The defendant’s will was called for, but not produced, whereupon the plaintiff tendered a copy (Exhibit P20), bearing the same date and containing the similar provisions described by her. At no point in his evidence, did the defendant seek to challenge that that was, indeed, a true copy of his own will made at that time, albeit that he attempted to explain its wording as mistaken.
The Defendant’s Account of their Meeting and their Relationship
The defendant gave a very different account of the circumstances in which he and the plaintiff met.
.He denied having any connection with or role to play in the advertisement (P2) and pointed to errors in it, in particular, as to their respective ages. He was then shown Exhibit P3, being a copy of a handwritten representation of the words appearing in Exhibit P2, it being a document which the plaintiff said she had found at Britton Avenue after she moved there. He denied it was his document or handwriting, saying he could not write, and he denied that anybody wrote it for him or helped him write it.
.In 1992, he said, he was still living with his wife and it was after that year she moved, first next door, then to Paradise, for “tranquillity”. His son had actually bought the Paradise property for that purpose. Having said that, the defendant then identified his son’s signature on the Memorandum of Transfer of that property, executed in 1990.
.On his account, he was working in the Reynella area in 1993 and went to the local Pizza Hut for lunch. It was there he first met the plaintiff. They began talking and he told her that he lived at Tranmere. She said she had some friends who lived there and that she knew the area. He told her he lived in Britton Avenue, but did not give her his house number.
.After that initial conversation, he said, he came home from work one night to find her car in his driveway. He did not know how she had discovered which house he lived in. He said he thought she was a nice lady and she then invited him to her place, but he said he had relatives to visit.
.He said that, after that, they saw each other socially and she then “intruded” into his family.
.She moved from Morphett Vale to Sando Avenue in or after 1993 and only came to live at Britton Avenue in 1995, not before. They had, in the meantime, been visiting one another, but there had been no intimacy between them. She came to live at Britton Avenue only when it was agreed that she would purchase his wife’s half‑interest in the property.
.From the time she came there, they occupied separate bedrooms, but shared the common facilities. That situation continued until she left. It was not a sexual relationship, he said, you have to fall in love before that is appropriate.
.As to the Sando Avenue property, he said it was not far away from Britton Avenue and he and her son‑in‑law had helped the plaintiff with her first move there.
.He denied absolutely ever having any relationship of intimacy with her and denied speaking to any persons, including the witness Narayan, about their having such a relationship. He admitted that he had kissed her, but only on the cheek, on her birthday or at a party.
.He denied they went on holidays together, but said she did once invite herself on a family holiday to Mount Gambier. She did not then sleep in the same room as he did.
.As to the social and family gatherings generally, he said they were photographed sitting together, only because it was convenient or because she wanted to sit with him or because a photograph was being taken, but the photos did not indicate any relationship between them.
.As to household duties, he took issue with some of the plaintiff’s evidence about the extent of work she did inside the house, claiming that he, too, did some cleaning, washing and cooking. He agreed they ate together, but said it was not the same food. He agreed that they went out shopping together and that they divided up the purchasing tasks.
.As to the plaintiff changing her name, he denied encouraging her to do it. She had gone behind his back and done it. When he accidentally discovered it, he asked her to change her name back to Csordas, but she did not.
.As to the Social Security issue, he said that on 29 November 1995, they both signed a form explaining to the Department how the plaintiff had come to purchase his wife’s interest in Britton Avenue and declaring that they used separate bedrooms, did not share anything else, did their own cooking and cleaning, and “are not a couple. We are two single people sharing a house”. A copy of this document was produced (P17).
.He admitted having sent a postcard to the plaintiff whilst he was working in Bordertown. That became Exhibit P44. He denied the plaintiff’s claim that it had been sent in March 1992, nevertheless, it was apparently sent whilst he was still employed.
.He acknowledged that Exhibit P20 was a copy of his will, but said that the plaintiff’s counsel’s interpretation of the burial clause was wrong. He was not directing his trustees that he be buried with her.
.As to the items of jewellery, he agreed he had purchased them for the plaintiff, but said he had done this in return for various things she had done for him, like knitting jumpers and socks. He denied they were given because he loved her and suggested that it was the plaintiff herself who had used his home engraving kit to engrave them. She had told him that, he said.
The Plaintiff’s Account of their Financial and Non‑Financial Contributions

Throughout the relationship, the plaintiff received a pension and she supplemented it with part‑time income derived from house cleaning. She otherwise earned income from investments, but this was reinvested. For his part, she said, the defendant was employed full‑time until June 1994 and, after that, relied upon his pension income. He, too, reinvested his capital profits.
The plaintiff then described how it was agreed between them, from the outset, that all property and household expenses would be shared equally and how that, in fact, occurred for some time. Gradually, however, she came to pay more than he did and, ultimately, found herself paying for everything. I will discuss this later. Their sharing arrangements had applied to all maintenance, repairs and outgoings, and food and consumables.
Generally, in the household, she said, she carried out all cooking, washing, ironing and cleaning tasks and the defendant, for his part, performed all outside tasks, including the lawns, the vegetable garden, general repairs and the like. The defendant liked to prepare pasta and pasta sauce on Sundays, but otherwise did not take any part in any cooking or internal housework.
They always ate at home and the washing and cleaning up after meals was always left to her. As to cleaning, it included dusting, washing floors, vacuuming and the like.
Further, she said, she was an accomplished seamstress and made curtains for seven windows in the house and all her clothes. She also knitted seven pullovers, a vest and six pairs of socks for the defendant and made pyjamas and a tracksuit for him, in addition, attending to all mending of collars, buttons, hemlines and the like. Further, she took up numerous pairs of work trousers for his son, Valentino, and made three dresses for his daughter.
She said that the defendant had some difficulty handling letters and documentation, and she assisted him, at the time of his property settlement, in writing letters and in his other dealings. She understood English better.
As to the defendant’s non‑economic contribution, she said he would undertake most of the handyman jobs around the house, including the lawns, the vegetable garden and general repairs. She said he did “plenty” of work outside. She did not attempt to say his non‑financial contribution to the home was less than hers. Effectively, she worked inside, he worked outside and they were both happy with that arrangement.
As to motor vehicles, the plaintiff, at all relevant times, from prior to meeting the defendant and until now, has been the owner of a 1979 TE Ford Cortina. During the period of their shared accommodation, she repaired, fuelled and insured the car at her own expense.
Likewise, she said, the defendant purchased a Holden Commodore in about 1992 and retains it to this day. He has himself paid all outgoings and expenses in connection with it.
As to superannuation and other benefits, on the plaintiff’s account, she has not at any time received any such. She said, however, that the defendant received a payout of some $54,000 upon his retirement in June 1994, made up of superannuation and other entitlements. The first $7,000 of that was paid to him in about November 1995 and at about the time of his property settlement. He did not cash that cheque for some six months, as he did not want to disclose it to his former wife.
Later, she said, he invested the balance of $47,091.20 with McFarlanes, an investment about which I will say more later.
On 12 April 1995, she said, the defendant paid her $5,000 and asked her to hold it so that his wife could not access it in their property dispute. She said that sum was not repaid specifically, but she refunded it to him by paying his contribution to various other accounts, which she identified. I will not seek to list those accounts now, but those identified by her totalled some $4,281. This evidence was not challenged by the defendant.
The Defendant’s Account of their Financial and Non‑Financial Contributions
The defendant did not seek to contend that their separate incomes were treated in any different manner than that which the plaintiff had described, save that:
(1)he disputed that the plaintiff was living in the house whilst he was still in employment; and
(2)he denied any suggestion that the plaintiff’s financial contributions to their living and household expenses exceeded his and said they remained equal throughout.
As has already been mentioned, he did dispute her evidence as to the extent of work he did inside the house, contending that he prepared separate meals and did his own personal washing, but elsewhere he said he allowed her to do these things, after she insisted.
Otherwise, he did not dispute what the plaintiff had said about making curtains and clothes, helping him with correspondence and about motor vehicles and his superannuation, although he did not comment upon her claims that he had hidden the sums of $7,000 and $5,000 from his former wife.
OBSERVATIONS AND FINDINGS AS TO CREDIT
The primary issue in this case was whether, at the alleged or any time, the parties had been living in a de facto relationship within the meaning of the Act, and it was on this point that much of the contentious evidence was given. There were, of course, consequential disputes about the acquisition, value and disposition of various assets and as to the financial and non‑financial contributions made by each of the parties to the partnership.
Although the defendant had had legal representation up to a time close to trial, he chose, as I have noted, to represent himself at the hearing, with assistance from his daughter Vicky. His command of English was imperfect and I was, at times, concerned to see that he fully comprehended what was being said or asked of him. I permitted him considerable latitude in procedural matters generally and, particularly, in the manner in which he cross‑examined, led his own witnesses and gave evidence. I frequently reminded him that he might not use cross‑examination for the purposes of addressing or giving evidence, that he must not interject whilst other witnesses were giving evidence, that he must not seek assistance from his daughter whilst he was himself giving evidence and that he must not speak of any filed offers or of protected communications which preceded trial. Notwithstanding my numerous cautions, his infractions, in the above respects, were frequent. I did not consider, however, that, of themselves, they reflected adversely upon his credit, as he was plainly excitable and anxious to place his own version of events before the court.
In considering the presentation of his case and his credit generally, I have therefore sought to make appropriate allowance for these matters.
Having said that, however, I did not find him to be a credible witness, and I will come to my reasons for that in a moment.
Conversely, I was generally satisfied that the plaintiff was a witness of truth. She presented her evidence calmly, with good recall and, for the most part, dealt with questions properly. On occasions, she volunteered information and, indeed, corrections to her evidence which were favourable to the defendant’s position, rather than her own, and I thought she generally sought to be fair. I had some reservations about certain things she said, and I will mention those in a moment, but, almost without exception, where her evidence conflicted with that of the defendant, I preferred her account of things.
I had little confidence in much of what the defendant said, and for these reasons:
(1)Even after making the allowances mentioned above, his general demeanour in the witness box was guarded, prevaricating and overly confrontational. He simply failed to answer many questions and, on occasions, I was satisfied that failure was deliberate. He did not address the substance of others and, indeed, sought to answer many by asking questions of his own. His answers were, at times, rambling and he expressed deep resentment of any challenge to his credibility. With respect to those allegations focussing rather more directly upon the early alleged existence of a de facto relationship, his attitude to the plaintiff’s counsel was one of “you prove it”. All in all, I found his presentation unconvincing and unsatisfactory.
(2)On a considerable number of issues at trial, his evidence was contradicted by independent evidence or was otherwise simply not believable, and I am satisfied that he positively sought to mislead. Amongst those matters, I mention the following:
(a)his denial of any involvement in placing the newspaper advertisement (P2), to which, on the plaintiff’s evidence, she had responded and which, on her account, had led to an initiating telephone call from him.
His account of the circumstances of their meeting was markedly different and I have discussed it above. When confronted with Exhibit P3, he sought to dissociate himself from its authorship, but his reasons for that were fatuous and evasive. Equally, his account of a chance meeting and conversation with the plaintiff at the Pizza Hut, during which he told her of the street, but not the house, where he lived, and of her then being parked in his driveway when he came home from work on an evening some days later, strained credulity.
The plaintiff’s account of their first meeting and the commencement of their relationship prior to her move to Britton Avenue is supported by the exhibit P44, which I find is a postcard he wrote to her whilst he was working at Bordertown, and I find that it occurred as she said it did.
(b)On the plaintiff’s case, she shifted from her rented premises at Morphett Vale to reside at Britton Avenue in August 1992 and she took a considerable amount of her furniture with her, albeit that she left some of it at Sando Avenue. The defendant (even on his own account) helped her move it, although, he said, all of it went to Sando Avenue. She said that the lease on Sando Avenue was taken as a result of the defendant’s direction that she should have a separate address in order that they could both continue to receive their full single pensions. She did not, however, live at Sando Avenue at any time by herself.
On one account the defendant gave, his wife was still living at Britton Avenue as of 1992 and, indeed, she was there possibly as late as 1993. The plaintiff, he said, did not move to Britton Avenue until she acquired her half‑interest in the property in October 1995. He inferred that she lived at Sando Avenue between August 1992 and October 1995.
Elsewhere in his evidence, he admitted that as of January 1992, his wife and daughters were living in an adjacent property in Davies Avenue, Tranmere. He did not dispute that Vicky came back to Britton Avenue in 1994 and stayed there a year, but then nor did he deny that the plaintiff was living there when this occurred.
Further, he did not seek to explain why the premises at Paradise, specifically acquired by his son to house his wife, were purchased as early as 1990.
On all the evidence, I am satisfied, and find, that the plaintiff did, indeed, move into the premises at Britton Avenue in August 1992 and that the defendant’s denial of that occurring until October 1995 was a false one and made to negate the suggestion that their relationship was anything other than a commercial one.
(c)The plaintiff gave evidence of the two of them engaging in a very active sex life during the whole time they resided together and shared the same bedroom at Britton Avenue, and she said that the defendant was in the habit of speaking of it when they were in company. She said he frequently mentioned it to members of his family and others at various gatherings.
She called a witness, Martine Narayan, a solicitor, who had been present on an occasion when just such a conversation had taken place. Narayan was not able to say whether it was the plaintiff or the defendant who had provided details of a particular sexual encounter between them, but one of them had and she related it. She said both were present during the conversation. (The plaintiff did not, herself, assert she was there, but she did not seek to deny it, either, and in all the circumstances, I am satisfied she was.)
The defendant denied that there was at any time, whatsoever, any sexual contact between them. He denied they shared the same bed at Britton Avenue, saying they had separate bedrooms. He said theirs was purely a commercial relationship, one of convenience, arising from the fact that the plaintiff had purchased a half‑interest in the house, and that, in the course of it, they shared various household maintenance tasks and expenses.
He denied speaking to others of their sexual relationship and, in particular, to the witness Narayan, or being present when the plaintiff spoke of it.
I found his denials as to all of this to be simply unbelievable. I had no reason at all to doubt the evidence of the witness Narayan. She presented as composed, independent and credible, and was not shaken in cross‑examination. Her evidence strongly corroborated the plaintiff’s account of the way in which the defendant would speak openly of their sexual activities. His false denial as to this incident, of itself, leads me to the point of having no confidence at all in his claims as to the nature of their relationship generally and, of course, there are numerous other reasons, as well, for rejecting his description of it.
(d)The defendant claimed that he gave the plaintiff a gold ring and heart locket simply in gratitude for some work she had done for him. When confronted with the fact that each of them was engraved with his name and the claim that he had directed that engraving, he flatly denied it. The items were produced and I inspected them. He then proffered the extraordinary explanation that the plaintiff had used an engraving tool that he kept at home, to perform the engraving work, including inscribing the gold heart with the words “I love you, Dom”. He had been aware the plaintiff had done this at about the time the items were bought, but he had taken no particular objection to it.
I have no difficulty in accepting the plaintiff’s account as to the provenance of these items and their engraving.
(e)The defendant did not dispute that the plaintiff undertook most of the household tasks, although he disputed her claim as to the extent of the cooking she did and also claimed that he washed his own underwear. He said she did all the ironing and cleaning and that he did the outside work.
I am satisfied that the housework was done precisely as the plaintiff claimed it was, that she did all washing, ironing and cleaning and all but a very small part of the cooking.
(f)It was plain from what each of them said that they shared a family life together, the plaintiff accompanying him on family outings, and, indeed, the photographs (P37) make that plain. In addition, she carried out various tasks for Vicky and Valentino, and acted as a friend and counsellor to Vicky, as Exhibit P8 confirms. Further to that, she acted as hostess and cooked for the defendant’s divorced wife on a regular basis, when she came to Britton Avenue. The defendant did not seriously challenge this. I am also satisfied that the plaintiff accompanied the defendant and his two children on holiday to Mount Gambier, not at her request, as the defendant said, but as part of a family outing, as, indeed, the photographs tend to suggest.
(g)I am further satisfied that the defendant’s children visited the plaintiff and defendant together, and vice versa, although visits to and from the plaintiff’s children were less frequent. Again, this was not challenged.
(h)It is apparent from the evidence that the plaintiff and defendant entertained other friends and went on social occasions together. The photographs (P37) inter alia depict the plaintiff and the defendant at various social occasions displaying some measure of intimacy. I will not seek to describe them in detail. The defendant said they indicated no more than friendship. I do not accept that.
(i)I have further had regard to the wills prepared by the plaintiff and the defendant in March 1996 (P19 and P20). These have already been mentioned.
When confronted with the burial provision in his own will, the defendant sought to contend that, contrary to its terms, the vault was actually set aside for him and his former wife, Margaret. He did not proffer any meaningful explanation for his mention of the plaintiff in that context, nor seek to explain why he had conferred upon her a life interest in his share of Britton Avenue.
(j)As to the circumstances of the parties’ separations in 1999 and ultimately in 2001, I am satisfied that they occurred in consequence of the matters deposed to by the plaintiff.
She said the 1999 separation had come about as a result of the defendant’s insistence that she, the plaintiff, continue to host lunches, dinners or Christmas gatherings at which the defendant’s former wife would attend, notwithstanding that she had objected to this continued association. The defendant did not appear to contest that reasoning, albeit expressing some measure of loyalty to his former wife. Margaret Condoluci herself gave evidence about these occasions and it indirectly supported the role of hostess that the plaintiff had undertaken on her visits.
As to the final separation, the plaintiff claimed that the relationship became a stormy one, that the defendant was violent towards her and that she apprehended further violence. She therefore left and later obtained a restraining order.
I have not concluded that the making of such an order, of itself, proves her allegations as to the defendant’s behaviour, but I have preferred, and I accept, her evidence as to the events which led to separation.
The defendant said that the plaintiff left Britton Avenue of her own accord and that she has remained, ever since, at liberty to return and resume her place in the house. I do not accept that assertion and do not consider it unreasonable for the plaintiff to have refused to return there.
I should stress, in so far as it might be argued as relevant, that I make no findings as to who was ultimately at fault in the failure of this relationship. I am satisfied that the defendant’s actions precipitated the plaintiff’s final departure, but that is not a judgment on the whole of the relationship.
(k)There was then the evidence as to the plaintiff’s change of name from Csordas to Condoluci. She said that she had done it at the urging of the defendant, who had offered to pay for it, albeit that he did not ultimately do that. The defendant said that the plaintiff had done it secretly and of her own accord, and that he had expressed resentment when he discovered it and, indeed, still did at trial.
Notwithstanding his position as to this, it is apparent, on all the evidence, that not only did he not object to the plaintiff’s use of the name “Condoluci”, but he tacitly approved of it. So much appears from the exhibit P45, which I am satisfied contains a handwritten draft of a greeting to the defendant’s sister, written in Italian and prepared by the defendant for the plaintiff to copy and send. In the defendant’s own handwriting, it is signed off in the name of “Anne-Lise Condoluci”.
(l)There was a particular conflict, on the evidence, relating to funds the defendant had invested with McFarlanes, Business Advisers and Chartered Accountants. According to his Statement of Assets and Liabilities filed in this court on 27 May 2002 (P30), as of 31 March 2002 his investment with that firm was valued at $1,192.04. That statement was corroborated by a letter from McFarlanes to him of 21 February 2002 (D1), which showed that such a balance had remained in the instant account since at least 30 June 1999.
There was then a separate document produced under the heading of the same firm (P48), titled “Statement of Funds Domenic Condoluci”, which purported to say that between August 2000 and 15 October 2001, the balance of invested funds changed from $70,893.79 to $34,799.76, but it never reduced to $1,192.04. That statement simply could not be reconciled with P30 or D1 and, pointedly, as I thought, the original of the document P48 was one of those documents which went missing from the Polvere bundle of produced documents (see paragraph (2) below). Further, I note from Exhibit P25 that the value of that investment at 31 March 2001 was $74,439.27.
During the course of trial, I had made some observations about the inadequacy of the financial information provided in the various McFarlanes statements provided to both parties. Whilst my inability to reconcile D1 and P48 may not necessarily arise from that concern, I would have been much assisted had D1 contained more appropriate detail. Whatever of that, the defendant was not able to offer any explanation whatsoever for the discrepancy between P48 and D1.
(m)That failure was amplified by a letter of 7 November 2001 (P25), in which the defendant’s solicitors purported to make certain disclosures about his financial status at that particular time. The letter said that as of 31 March 2001, the defendant had $87,697.22 in an ANZ Bank account. It went on to provide some information relating to movement in the balance of a savings account between 4 September 1992 and 1 November 1995.
At trial, the defendant denied that that information was correct, complaining that Mr Polvere had not represented him properly and suggesting that information could not be relied upon.
For all the above reasons, I am again persuaded his evidence as to this was false.
(n)Further, it emerged from the document D1 that, as of 30 June 1996, the balance of the funds invested by the defendant with McFarlanes had been $58,045.92. There were then two purported withdrawals of $5,500, respectively on 31 December 1996 and 31 December 1997, a further purported withdrawal of $10,000 on 31 December 1998 and a purported withdrawal of $42,120 on 28 June 1999.
When tested as to the circumstances and purpose of these withdrawals, the defendant offered explanations which were vague and unbelievable. He suggested that he had a gambling habit and had lost money. He also said that he had also given some money to his children, although he could not be specific about when, how much and to whom.
Irrespective of any findings as to the impact of those withdrawals on his general financial position, I am satisfied that, if such transactions occurred (a matter which remains open to serious doubt), they were undertaken with the intention of diverting moneys from the plaintiff.
(o)Such a pattern of behaviour is consistent with the plaintiff’s evidence as to two other matters, which the defendant did not seek to deny:
(i) prior to concluding a property settlement with his wife Margaret, the defendant gave the plaintiff $5,000 and requested she bank it for him, as he did not want it to fall into the assets which might be the subject of his wife’s property claim;
(ii) further to that, he delayed by six months in banking some $7,000 of his severance payment, and for the same reason.
(p)As to the Social Security issues and the plaintiff’s lease of the Sando Avenue premises, I am satisfied, too, that the plaintiff involved herself in these matters at the behest of the defendant and in order to deceive the Department of Social Security. That deception does the plaintiff no credit, either, but I am satisfied she was truthful in what she said about it. I accept her evidence to the effect that, when she ultimately purchased a one‑half interest in Britton Avenue, the defendant took her to the Department of Social Security, where he gave, and had her sign, a false statement about their living arrangements at those premises (P17). I am satisfied he told her to sign it under threat that she would be evicted from the property if she did not. The defendant’s account of that transaction was that they went to the Department in order to confirm their status as separate persons living under the same roof and they both signed to that effect.
For reasons elsewhere expressed, I am not satisfied that that was ever a proper description of their status and I find that the defendant engaged in a deliberate course of deception of the Department of Social Security in order to gain or share in the benefit of two individual pensions. Further, I am persuaded, on all the evidence, that he put undue pressure upon the plaintiff to go along with that transaction.
(q)Although I sought to make appropriate allowances, in my assessment of the defendant’s evidence, for his lack of representation and his limited command of spoken English, I took note of his description of the plaintiff in his final address as “my wife” (p.712), albeit that he called her such in the course of denying the existence of a de facto relationship.
(r)There is then the question of the cash moneys said by the plaintiff to be held by the defendant at the time of separation. On her account, they had been generated by the defendant producing cannabis in the back yard of Britton Avenue. He had produced two crops, she said, which he had sold in successive years for $10,000 and $12,000. The proceeds had then been buried in a tin in the back yard, later stored under a bench in the shed and, ultimately, kept in a tin in the bed head of their double bed.
She then described how, after the defendant’s arrest and the making of the restraining order, he was permitted to return to the house to retrieve his belongings. In the course of that visit, he had access to that bedroom.
Separately, evidence was given by Constable Rhodes, a police officer involved in the apprehended violence proceedings brought by the plaintiff. That evidence was not seriously challenged and, in the course of it, she described how she had cause to visit the defendant, at his sister’s place at Hectorville, and to speak to him about an aspect of the proceedings. In consequence, she and another officer conducted a search of the room he was occupying there and found, under the bed, a container packed with $20 notes and which she estimated contained at least $10,000. She did not purport to count the money, but she described the container and her description corresponded with the plaintiff’s description of the money container which the defendant had kept in the bed head of Britton Avenue.
For his part, the defendant denied having earned any moneys from producing cannabis or having put any cash aside or hidden it in the bed head or at his sister’s place. He suggested the money probably belonged to his sister.
Ultimately, the plaintiff made no claim to any part of those moneys, but I am nevertheless satisfied that the defendant had them at separation and that his denials as to their possession were deliberately false. This is not to say that I am satisfied that the defendant acquired those moneys in the manner described by the plaintiff; indeed, I am not so satisfied. The allegations are serious ones and all I need find, and do find, is that the plaintiff held $22,000 in cash at the time of separation and that he acquired those moneys during cohabitation.
(3)The defendant’s production and non‑production of various documents at trial caused me considerable disquiet. Even allowing for his self‑representation and his lack of familiarity with court procedures, I am satisfied that he deliberately withheld the production of particular documents.
At the start of trial, he informed the court that certain documents were in the possession of his former solicitor, Mr Polvere, with whom he was in dispute over fees. I then directed Mr Polvere to produce them to the court, which he did. I made them available to the defendant and, as well, to the plaintiff’s solicitors, who made copies of a number of them.
Through an oversight (for which the defendant was in no way responsible), the defendant was able to take the documents home on the first night of trial and he did not return them on the following day. I directed that he return them to the court on the third day and he did so, but it then emerged that a number of the original documents from that bundle, copied in the meantime by the plaintiff’s solicitors, were missing. When called upon to explain this, the defendant denied having retained any of them at home. Having regard to the contents of the missing originals and the above circumstances, I am satisfied that he did so, and deliberately.
Further to that, there were documents identified in his List of Documents as having been in his possession or control as of the date of that List, which was 7 February 2002, yet when those documents were called for at trial, they were not produced. Whether they were removed from the file produced by Mr Polvere or whether they had previously been taken back by the defendant, it is unnecessary for me to decide.
I directed the defendant to produce them, and he returned to court saying they were not produced and that he did not have them. I regard his dealings with those documents with the gravest misgivings.
(4)Finally, it became abundantly clear at trial that there were numerous friends of the defendant, along with his family members, who might have been called by him to give evidence as to the nature of his relationship with the plaintiff, their sleeping arrangements, their presentation to others and the like. Startlingly, Vicky, herself, had cohabited with them for a year and could have provided critical testimony. The other children, particularly Valentino, had been seeing them frequently. I raised these issues with the defendant, but it was apparent he did not wish to call any of them. Even allowing for his self‑representation, I find that failure reflects adversely upon him.
Of course, it might be said that the plaintiff had children who might have been called to corroborate her claims, but it was apparent, on all the evidence, that, unlike the defendant’s children, they were infrequent visitors to Britton Avenue and only one of them now lives in Adelaide.

I have dealt with the above matters exhaustively because they are ample testimony to the defendant’s lack of credibility. I felt that there was very little he told me at trial that I could rely upon.
As I have said, there were some aspects of the plaintiff’s evidence which caused me some misgivings, too. She presented to me as a meticulous person with a very reliable memory for matters of detail and a person who had kept careful records of most things. I was thus quite unimpressed by three aspects of her evidence, in particular, namely:
(1)her inability to proffer any explanation at all as to what happened to the sum of $1,481.76 which remained in her access account at the time she closed it;
(2)her failure to produce a fourth bank passbook for the period after December 1999 when she had a credit of $5,250, a period which coincided with an important aspect of this dispute. She said the passbook had been thrown away. Having regard to her careful attention to documentation and almost every other detail in this matter, I remained unconvinced by that failure and that explanation;
(3)I had some reservations, too, about her hiding, for a time, in the house, some cash savings and her participation in the Department of Social Security deception, but, as to the latter, I have found, on balance, she acted under the defendant’s influence in that scheme.
Having made those observations about the plaintiff, however, I have little trouble in concluding that I preferred her evidence on almost every matter where it conflicted with that of the defendant.
Against the background of those observations, I now proceed to make my findings.
FINDINGS OF FACT
- the de facto relationship
My above findings as to credit, considered with the whole of the evidence in this matter, overwhelmingly support the plaintiff’s claim, which I am satisfied she has made out, that there was in existence between them, over the period from August 1992 to March 2001, a de facto relationship, within the meaning of the De Facto Relationships Act 1996, as amended. In other words, I am satisfied they were in a non‑married relationship whereby they lived together on a genuine domestic basis as husband and wife. In making that finding, I have regard to the definition of “de facto relationship” in that Act and I have been assisted, as well, by a consideration of the Supreme Court of New South Wales decisions of D v McA (1986) 11 Fam LR 214 and Roy v Sturgeon (1986) 11 Fam LR 271.
In each of them, the court listed certain indicia (albeit saying they were not exhaustive) which might usefully be considered in determining whether such a relationship existed. I have found that approach helpful and respectfully adopt it. Specifically, I find:
.I am satisfied the parties lived under the same roof between August 1992 and March 2001, save for a period of one month ending on Christmas Day 1999. The defendant sought to say that they lived apart in 1999/2000 for a longer period than that, but his only basis for saying so was that the plaintiff continued to pay rent on a Hazelwood Park property after that time. The plaintiff has provided an adequate explanation as to why she did that, and I accept it.
.I am further satisfied that during the period of their common residence at Britton Avenue, they shared the same bedroom and, indeed, the same bed. I reject the defendant’s assertion that they occupied different bedrooms and the most that can be said for his contention was that the plaintiff stored some of her own furniture and belongings in another room in the house, which had previously been used as a bedroom.
.I am satisfied that a sexual relationship continued between them over that time, much as the plaintiff described. Her evidence was strongly corroborated by the evidence of Narayan and in part supported by the photographs and the fact that they socialised as a couple with their friends and each other’s family, both within and outside their home.
.There can be no doubt that the parties divided up all the household duties. Each was prepared to recognise that the plaintiff did most of the inside work and the defendant, most of the outside work. At one stage, the defendant said that he did his personal washing and ironing. The plaintiff said otherwise and that she did it. Later, the defendant appeared to retreat from his claim. I preferred, and accept, the plaintiff’s evidence as to that.
.There was mutual commitment and support between the parties. They each became involved in the other’s family. The plaintiff helped the defendant’s daughter Vicky and his son, Valentino. She even visited his former wife when she was a patient at Glenside Hospital. For his part, the defendant’s contribution to the plaintiff’s family life might have been a lesser one, but I am nevertheless satisfied he participated in it.
.In their public presentation, too, I am satisfied that the parties portrayed themselves as husband and wife. I am satisfied that the defendant supported the plaintiff’s change of her, and use of his, surname and that he knew she wore the jewellery he had bought, engraved and given to her. As I have noted, they joined with family and friends in various celebrations and occasions in such a way as to present themselves as a “couple”.
.I have already made findings about the defendant’s involvement in the newspaper advertisement and it is noteworthy that, in soliciting enquiries, the defendant had inserted in it the words “View marriage”. He later gave to the plaintiff the two items of jewellery containing sentiments consistent with a de facto or married relationship.
.It is fair to say that each of the parties did seek to retain some measure of financial independence of each other in that they kept their savings separate, received separate pensions and, at least at the outset, sought to share house and living expenses equally. Those practices, of themselves, might tend to negate a claim that theirs was a de facto relationship, but as against them, the plaintiff and defendant were tenants in common in equal shares in the house, and the other evidence supporting the existence of a de factor relationship was overwhelming. I am further persuaded, on evidence to which I will shortly refer, that the plaintiff’s financial contributions to house and living expenses ultimately exceeded those made by the defendant, anyway.
I am thus satisfied that the plaintiff may bring a claim under section 9 of the Act.
- assets at the commencement of the relationship
On the plaintiff’s evidence, which I accept, she had the following assets at August 1992, the time of the commencement of the de facto relationship:
(a)ANZ bank account  $823.43
(b)Cash  $12,000.00
(c)Anticipated property settlement
(which matured in 1993)  $76,990.42
(d)Furniture  $ not valued
(e)1979 TE Cortina motor vehicle  $ not valued
Further, I am satisfied, on the basis of exhibits P25 and P27, as well as the oral evidence, that the defendant then had the following assets:
(a)ANZ passbook balance  $20,799.42
(b)ANZ term deposit  $14,109.00
(c)House property at 11 Britton Avenue,
Tranmere – one half interest - estimate  $56,000.00 - $60,000.00
(d)Furniture and house contents at 11 Britton
Avenue, Tranmere  $ not valued
(e)Anticipated superannuation and termination
payments on his retirement (which matured
in June 1994)  $53,091.00 - $54,091.00
(f)1992 Holden Commodore motor vehicle                   $ not valued
-assets acquired during cohabitation
As to each of the parties, I have already referred to the plaintiff’s acquisition of the proceeds of her own property settlement in August/September 1993, being an amount totalling $76,990.42, and to the defendant’s receipt of a termination payment in June 1994, comprising superannuation of $6,000 or $7,000 and other benefits totalling $47,091. There was no documentary evidence produced as to these amounts, but neither were they seriously disputed and to the extent:
(1)there was a $1,000 difference over the correct amount of the defendant’s superannuation, I will for all purposes treat that payment as $6,500;
(2)the value of the property at 11 Britton Avenue may have varied between 1992 and 1995, I will treat its appropriate value, as of November 1995, as $120,000. That was agreed for the purposes of the plaintiff’s acquisition of a one‑half interest.
Disregarding her property settlement and save for a small number of assets she acquired with the defendant as her de facto partner, the plaintiff did not acquire any other assets of her own during the relationship.
As to the defendant, and putting aside his termination payment, I am not persuaded he acquired any assets in his own right, save for the $22,000 which I have mentioned. The plaintiff has expressly disclaimed any interest in those moneys to the extent that she seeks no division of them, but that is not to say that I may not bring them into account, as assets of the defendant acquired during the relationship and as a sum to be taken into account in considering the defendant’s overall financial position. I propose to do so.
- assets as at the date of separation on 16 March 2001
I am satisfied the plaintiff had the following assets as at the date of separation:
(a)     ANZ Access Deeming account (P14) balance  $6,057.85
(b)     ANZ Visa account (P24) balance  $1,846.38
(c)     Balance of investment with McFarlanes, said to
be between $46,127.80 and $50,097.31 – the evidence
         on this was no more specific than that, and, doing the
         best I can, I choose a midway figure of   $48,000.00
_________
Subtotal:$55,904.23
(d)One half-interest in 11 Britton Avenue   $ discussed later
(e)Furniture, as follows –
furniture brought by her into relationship  $ not valued
some furniture acquired jointly with the defendant
during relationship  $ not valued
(f)1979 TE Cortina  $ not valued
As to the defendant’s assets at the time of separation, there was quite some dispute at trial. On his own account, they comprised the following:
(a)     ANZ passbook (P25) balance  $87,697.22
(b)     McFarlanes investment  $1,192.04
(c)     Cash denied, but as I have found  $22,000.00
_________
Subtotal:$110,889.26
(d)Furniture, as follows –
furniture brought by him into
relationship  $ not valued
some furniture acquired jointly with the plaintiff
during relationship  $ not valued
(e)One-half interest in 11 Britton Avenue  $ discussed later
(f)1992 Holden Commodore motor vehicle  $ not valued
The plaintiff said these things about the defendant’s claimed assets at the time of separation:
(1)She strongly disputed the defendant’s claim that his McFarlanes investment as of that date was valued, as he contended, at $1,192.04 (see D1). I have already referred to the conflicting documentary evidence over this, as reflected in Exhibits P25, P30, P48 and D1. Having regard to my findings as to the defendant’s credibility, I expressly reject the accuracy of Exhibit D1 and I find that the more likely sum then invested with McFarlanes is, as Exhibit P25 asserts, $74,439.27. Even if more cogent evidence were to demonstrate otherwise and that a lesser sum remained in that investment as at 16 March 2001, I would likely be satisfied that that was immaterial, because I am otherwise persuaded that, at or since that time, the defendant has deliberately sought to hide or divest a substantial part of that fund (whether or not he has achieved that goal) in order to defeat or limit this or any claim by the plaintiff upon him. The combination of his conflicting documents, the timing of claimed withdrawals and the vague, unconvincing and unsupported attempts he made to explain them, all make this conclusion inevitable.
(2)She pointed to the dramatic augmentation in the defendant’s personal wealth over the period of their cohabitation, notwithstanding that he paid $18,000 towards his wife’s property settlement in November 1995, saying that it reflected her (the plaintiff’s) greater financial contributions to their relationship and the defendant’s consequential savings during it.
I find that the proper asset position of the defendant at separation was thus as follows:
(a)ANZ passbook (P25) balance  $87,697.22
(b)McFarlanes investment  $74,439.27
(c)Cash denied, but as I have found  $22,000.00
_________
Subtotal:$184,136.49
(d)Furniture, as follows –
furniture brought by him into
relationship  $ not valued
some furniture acquired jointly with the plaintiff
during relationship  $ not valued
(e)One-half interest in 11 Britton Avenue  $ discussed later
(f)     1992 Holden Commodore motor vehicle  $ not valued
- assets at trial
I accept the plaintiff’s evidence that, as of the date of trial (and putting aside, for a moment, the furniture, car and real estate discussed), she had the following assets:
(a)Investment with McFarlanes  $54,635.62
(b)Bank SA account balance  $632.57
(c)ANZ Visa account balance – between $100 and
$200 – say  $150.00                  _______
$55,418.19
Further, I accept her evidence, and am satisfied, that the diminution in her asset position since separation (the McFarlanes investment aside) has been attributable to the extra costs incurred by her in moving and re‑establishing herself in alternative accommodation, for which she must pay rent.
As to the defendant, I note that the moneys in the defendant’s ANZ passbook fell after separation by some $12,000. Again, there was no adequate or properly supported explanation for this. For the reasons previously expressed, I am satisfied that he sought to divert these moneys, too, from the plaintiff and I have treated them as an asset. If I am wrong as to the continued existence of his McFarlanes investment, in the amounts relied upon, I am still satisfied, for reasons already expressed, that it is appropriate to treat the defendant as owning or controlling an amount of about that order.
On the basis of the above findings, I am satisfied that, as of the date of trial (and putting aside those same items, i.e. house, car, furniture etc.), the defendant had the following assets:
(1)ANZ passbook account – as of August 2002
(P49)  $75,505
(2)McFarlanes – I am unable to make a specific
finding as to this and no evidence was produced
as to it, but as of separation it was $74,439
and if I increase it in the same proportion as the
plaintiff’s like investment, that figure will be
approximately   $83,300
(3)Cash – or moneys worth of no less than  $22,000
(4)Moneys otherwise unaccounted for  $12,000
_______
$192,805
-the financial contributions made by the plaintiff and the defendant during cohabitation
(1)    until November 1994
It was not disputed that until November 1994, the defendant continued to work full‑time and to carry out external house work. He then retired and he did not engage in paid work again. In that period, I am further satisfied, he paid most of the property expenses and 50 per cent of the household expenses, and he also provided the plaintiff with a roof.
I am satisfied that during that same period, the plaintiff continued:
(i)to receive her full single pension;
(ii)to meet her half‑share of living expenses and to make a small contribution to the outgoings on the property at 11 Britton Avenue – it would seem the defendant paid rates, taxes and insurance and the plaintiff contributed only to electricity;
(iii)to work as a part‑time cleaner for four to six hours per week;
(iv)to make a substantial non‑financial contribution to the household in undertaking all cooking, cleaning, sewing, washing and ironing tasks;
(v)to pay rent on Sando Avenue, at the rate of $90 per week, and that she did so at the defendant’s behest.
Whilst there was thus a period during which the defendant provided the house in which they lived and otherwise worked full‑time, as against the plaintiff’s limited outside work, I am not minded to differentiate their respective financial contributions during this time, and for these reasons:
(i)because they were both party to the dubious arrangement whereby the plaintiff continued to receive a full single pension and paid $90 per week to rent Sando Avenue. Neither should profit from this deception and the plaintiff’s rental payment on that property is otherwise offset by the defendant’s provision to her of free accommodation at Britton Avenue;
(ii)because the plaintiff otherwise played an important and accepted role as housekeeper and homemaker whilst the defendant worked. I see no reason to devalue that contribution against the defendant’s work and earnings;
(iii)because each otherwise retained their unused income for their separate purposes.
(2) between November 1994 and October 1995
As to the period between November 1994 and October 1995 (when the plaintiff acquired her interest in Britton Avenue), I am, for like reasons, not persuaded that there was any marked disproportion between the financial contributions each made to the relationship. They each received a pension income and the plaintiff supplemented hers by part‑time cleaning work. Each retained his or her income for their separate benefit.
(3) after October 1995
As to the period after October 1995, it was common ground that, until final separation, all rates and taxes, gas, insurance, electricity and telephone accounts attaching to Britton Avenue were contributed to equally by the parties, and I so find. Again, they each received a pension income and the plaintiff supplemented hers by part‑time cleaning work.
There was, however, a dispute as to the other financial contributions over that time and it related to two areas:
(i)their respective contributions to food and grocery expenses, which, on the plaintiff’s account, changed from the position of equality which had prevailed up to about the time Vicky left in June 1995, to one whereby she gradually contributed more over the following two years and then, from about 1997 onwards, paid all such expenses;
(ii)the plaintiff’s claim that she paid more than the defendant towards the cost of improvements in the house and furnishings.
As to the first area, on the plaintiff’s account (which the defendant appeared to accept), the arrangement made between them at the outset was that the defendant would purchase meat, fish and vegetables from his moneys, and she, all grocery items from hers. In their early years together, those expenditures tended to be much the same. After Vicky left in mid‑1995, however, and they continued shopping together, the plaintiff said, they found it more convenient to buy almost all of their supplies, including meat, fish and vegetables, from the supermarket, and thus the plaintiff gradually paid for more of these items. This continued then for two years until, ultimately, she was paying for everything.
The defendant denied that, saying that, if anything, meat, fish and vegetables cost more over time, that he continued to pay for them and that he thus contributed a greater amount of the total expenditure.
For reasons already expressed, I prefer the plaintiff’s version of these events. Even so, there was a paucity of detail as to how much these expenditures were at any one time, hence how much more the plaintiff had paid.
There was, however, considerable detail as to the second disputed area, and the plaintiff’s assertions as to it were based upon documents P12 and P13. Again, with respect to this matter, I preferred her evidence over that of the defendant. That does not mean, however, that all the amounts covered in those documents go solely to the plaintiff’s credit. It is necessary that I record these findings:
(1)to the extent the parties contributed equally to property improvements and fixtures, they will be reflected in the ultimate property value and I will make no adjustment for them;
(2)to the extent the plaintiff paid the whole or a greater proportion of the cost of certain fixtures (and I am satisfied she did pay the entire cost of the new stove, hotplate and the kitchen floor, that she paid $700 more for kitchen renovations and did not receive a credit for kitchen items sold), there should be an adjustment of one half of that expenditure, or $2,000, in her favour;
(3)to the extent that the defendant retained items purchased by the plaintiff or both of them (and I find he retained the plaintiff’s microwave, their lawnmower and the wine tubs), I will allow an adjustment in the plaintiff’s favour, after a notional deduction of $400 for depreciation during cohabitation.

The plaintiff’s counsel invited me, first, to find for her on both of these issues and to then use what might be described as a “betterment” approach in calculating the disproportion in their contributions. He argued that I should compare the growth in the defendant’s assets over the relevant time with that of the plaintiff and find that the defendant’s proportionately greater improvement was entirely attributable to the imbalance in their respective contributions under these heads. He then appeared to go further than that and sought what he described as an “equalisation” of the combined assets of each party at the close of cohabitation.
I do not propose to adopt either course.
At the outset, it should be recognised that the amount of capital each party brought into the relationship differed markedly:
.The plaintiff started with total assets (excluding her car and furniture, but including her later property settlement) of approximately $90,000, but she soon expended $62,000, approximately, acquiring her interest in Britton Avenue (for which interest she will get appropriate credit). Effectively, therefore, she brought in other capital of $28,000 and, at separation, had assets (excluding house, car and furniture) of $56,000.
.The defendant started with assets (excluding the house, car and furniture, but including his later retirement benefits) of approximately $88,500, but he soon paid out $18,000 on his property settlement. Thus, effectively, he had $70,500 to invest and, at separation, his investments (the cash money aside) totalled approximately $162,000.
.It is plain that neither party made any financial or non‑financial contribution to the other’s “starting” assets, so there should be no sharing or “equalisation” of those amounts.
.Further, it is plain that, in the nature of their particular relationship (and the events of October 1995 aside), each party was able to live on his or her income without recourse to capital.
.To the extent, therefore, that there was any natural improvement in the value of the “starting” investment each of them had, I am not persuaded that either contributed in any relevant way to that improvement enjoyed by the other. It would not be just and equitable to “equalise” on that account.
The matter does not end there, though, because, on the basis of my above findings, I am satisfied that, by virtue of the plaintiff’s greater financial contributions in these two areas mentioned above, the defendant was able to “unnaturally” increase the value of his starting investment; that is to say, because he spent less on joint expenses during cohabitation, he saved more.
Prima facie, the figures bear that out. In the roundest terms (putting aside some timing questions relevant to the receipt by the plaintiff of her property settlement, by the defendant of his termination payment and their contributions to the October 1995 settlement), the plaintiff’s “starting” asset improved during cohabitation, or at least from October 1995, by 100 per cent, whereas the defendant’s improved by 129 per cent. Viewed another way, had the defendant’s “starting” asset improved in the same manner as that of the plaintiff, his investments at separation would have been $141,000, i.e. $21,000 less than they were.
The plaintiff argued, at the least, that this disproportionate augmentation of the defendant’s starting position is attributable to her greater financial contributions during cohabitation. The defendant disputed this, albeit that he did not proffer a reason for his superior financial performance.
I have already found that the plaintiff contributed more to joint assets by a total measure of $2,400, but I have not made any findings as to the value of the plaintiff’s greater contribution to food and consumables. This is necessarily a matter of imprecision. Doing the best I can, however, and assuming a total weekly expenditure on such items of, say, $140, I have averaged the plaintiff’s additional expenditure, between 1995 and 1997, at $35 per week and, between 1997 and 2001, at $70 per week. That additional expenditure, therefore, rounds off at $16,380 up to the date of separation.
When those figures of $2,400 and $16,380 are totalled, they come close to the margin by which the defendant’s investment program bettered that of the plaintiff. Progressive unearned interest on the total might indeed make up that margin.
Having undertaken that exercise, I should acknowledge that the reasoning implicit in it is not unassailable. It is trite to say that different capital sums and different investment mixes will yield different interest incomes (albeit that the parties here had similar mixes). Further, such a difference in performance might be explained by one party spending more of his or her separate income. I heard some evidence to that effect here, and it related to the plaintiff’s expenditure of some $3,600 on an overseas trip. Ordinarily, I would have taken some account of that expenditure in the orders I propose to make for division of property, but I will not do so in this instance, and for these reasons:
(a)after 1994, the plaintiff’s and the defendant’s Social Security incomes and non‑financial contributions were, as I have found them, equal;
(b)the plaintiff nevertheless continued with her paid, part‑time house‑cleaning work throughout the cohabitation period; and
(c)whilst the plaintiff did not seek to bring either that income or her trip expenditure specifically into account at trial, it seems to me to be just and equitable that one be set against the other.
At best, I am prepared to treat the defendant’s superior financial return on his “starting” capital as an indicator tending to corroborate the plaintiff’s evidence as to her greater contributions and the resulting benefit accruing to the defendant.
The plaintiff contended, as well, that in some manner she should benefit from the termination and superannuation payments received by the defendant upon his retirement. I reject that proposition. At that point, the parties had been living together for only two years, whereas the defendant had been working for the same employer for some 38 years. I am not satisfied that she did, in any measurable way, contribute directly or indirectly to the defendant’s accumulation of these benefits.
Further, the plaintiff contended that in some manner, the defendant profited from their relationship because of her ability to assist him with his property settlement; that by advancing the moneys to purchase a half‑interest in Britton Avenue, she afforded the defendant the advantage of obtaining a favourable property settlement with his wife, involving a payment of no more than $18,000 on his part.
I reject that submission. It seems to me that the plaintiff’s purchase of a half‑interest in the house property was a commercial and “arm’s length” transaction which has brought her equal benefit. I am not prepared to treat the fortuity of that transaction as some form of financial contribution made by the plaintiff to the relationship.
- the non-economic contributions made by each of the parties
I have already made findings as to the non‑economic contributions made by the plaintiff to the relationship. I am satisfied that the plaintiff was an industrious and careful housekeeper and, as well, she provided hospitality and, indeed, support, to the defendant’s family. Equally, I am satisfied that the defendant was a careful and successful gardener and looked after the external requirements of the house.
The plaintiff’s counsel urged me to find that her non‑financial contribution to the relationship exceeded that of the defendant. The plaintiff, herself, did not say that, however, and, on all the evidence, I am not prepared to make such a finding.
- relevant matters following separation
The plaintiff contended that, as the defendant had effectively forced her out of the home and she had to stay away for her own safety, he should contribute to the extra costs of reinstatement and rental she has incurred since March 2001.
The defendant argued that he did not force her out and that she was welcome to return at any time. I have already found against him as to this. In all the circumstances, it is clearly untenable for the plaintiff to contemplate returning to live in the property.
It appears that following separation, the plaintiff has contributed equally to all rates and taxes, save for current water rates, which total approximately $150. Council rates are also due or have been paid, but they will be affected by the order I propose to make. The defendant disputed that the plaintiff had properly contributed to insurance on the house, but I am satisfied that without informing her, the defendant changed the identity of the insurer, with the result that each of them paid the whole of the insurance for the 2001/02 year. The defendant can have no beneficial adjustment for that.
Otherwise, it remains a fact that since March 2001, the defendant has had the sole benefit of the common property and the plaintiff has had to pay rent from her own resources. The plaintiff has sought compensation for this by contending that she should be entitled to be paid a sum equivalent to one half of the rental value of Britton Avenue in the period since separation.
That is one approach to the matter and the plaintiff did not seek to follow another available argument, namely, that she should be reimbursed for half of her rental expenditure incurred since the time of separation.
A just and equitable result would require the plaintiff to mitigate the cost to her of replacing the benefit of her free accommodation at Britton Avenue, yet I did not hear sufficient evidence to enable me to consider whether she has done that.
As against that, however, are the following considerations:
(1)it may well be that one half of the rental value of Britton Avenue (said, on the evidence of the plaintiff’s valuer, Mr Brook, to be a gross amount of between $175 and $190 per week) represents a rental replacement sum most favourable to the defendant, anyway;
(2)I am mindful of the plaintiff’s assertion, which I accept, that, in consequence of the defendant’s actions, she has had to expend upwards of $6,000 in moving and re‑establishing herself in other premises.
All in all, I am satisfied that a just and equitable division will be achieved in the manner proposed by the plaintiff: that is to say, that the defendant pay to her one half of the rental cost of Britton Avenue from the date of separation to the date of judgment, a figure near the mid‑range of the value fixed by Mr Brook and nominated by her counsel, namely, $180 per week. This yields a sum of $8,010. To it should be added one half of the $6,000 cost to her of re-establishing herself elsewhere. The total adjustment under this head is then rounded off at $11,000.
- 11 Britton Avenue
On any account and whether under the Act or otherwise, the plaintiff is entitled to a one-half interest in the property at 11 Britton Avenue. She owns it as tenant in common with the defendant and, apart from some adjustments to which I shall refer, has always shared with him the costs of improvements, rates and taxes, and other outgoings.
At trial, the plaintiff’s expert valuer, Mr Brook, said its current value is $210,000 and, clearly, that was not a figure with which the defendant agreed. It was apparent that the defendant had at some stage himself taken advice from a valuer, but that person was not called at trial.
Whilst I would in those circumstances be disposed to find the value was as Mr Brook assessed it, the plaintiff’s counsel urged me to adopt the course of ordering the sale of the property and the appropriate division of its proceeds. Given the defendant’s opposition to the Brook valuation, an orderly auction sale would, indeed, be the best means of establishing its fair value and I will therefore adopt that course. From the net proceeds of sale, the plaintiff should receive 50 per cent and I will then make orders as to other adjustments.
- personal property
In considering the above matters, I have paid no regard to the motor vehicles owned by the parties, as they retained and cared for their own (and, indeed, the same vehicles) during the entire period.
Likewise, I will make no adjustment in respect of items of moveable furniture which each held at the beginning and at the close of the relationship. Apart from some minor adjustments which, I am satisfied, balanced out, neither party was left with an unfair or unjust division of such items.
I have already commented that expenditures made on improvements, fixtures and fittings to Britton Avenue should be adjusted to equality, but will otherwise manifest themselves in the market value of the property.
- general observations
I remind myself that whereas questions of the financial and non‑financial contributions of the parties to the relationship are the primary matters for determination, in exercising my discretion I may have regard to “other relevant matters” and they include, here, the length of the relationship, the financial resources of the parties and their respective ages (cf Dwyer v Kaljo (1992) 27 NSWLR 728 and Love v Chidley [2002] SADC 36).
I further remind myself there is no presumption of equal division (Black v Black (1991) 15 Fam LR 109).
I accept that, generally speaking, blame or fault should play no part in the exercise of my discretion and I am satisfied it should not here (Evans v Marmont (1997) 21 Fam LR 760), even insofar as it relates to post‑separation expenditure.
SUMMARY AND ORDERS
1.I have already found that during cohabitation, the plaintiff contributed a greater proportion of her income towards food and consumables and that she is entitled to a division of property in that regard. I estimated that figure at $16,380.
2.Further, I have found that she is entitled to a division by way of a credit for additional sums expended by her on capital purchases. Those sums I assessed at $2,400.
3.As it happens, the total of my best estimate of those two adjustments, with some provision for interest, approximates the amount of the additional benefit achieved by the defendant over and above what might ordinarily have been earned by him over the period of cohabitation had he not benefited from the plaintiff’s extra expenditure.
4.In round figures, that margin is $20,000 and I therefore consider it just and equitable that the defendant pay to the plaintiff one half of that amount, or $10,000.
5.I am satisfied that, in consequence of the separation and its circumstances, the plaintiff has had to incur expenditure of $6,000 in reinstating herself. I am not prepared to find the defendant should be held wholly responsible for that, however, and I consider he should account to the plaintiff for one half of that sum, or $3,000.
6.For the same reasons, it is just and equitable that the defendant should account to the plaintiff for one half of the reasonable costs to her of alternative accommodation, a figure which, based on the Britton Avenue rental value, would calculate to the date of judgment at $8,000.
7.The plaintiff has not sought any division of the defendant’s cash savings of $22,000, but they are a resource of the defendant generated during cohabitation, and I take that sum into account when considering the question of any income taxation paid by the defendant on the additional income the plaintiff has now partly accessed. I received no evidence from the defendant as to that matter and can say no more than that.
8.The plaintiff has also sought interest on certain of the above awards:
8.1Plainly, she should not have interest on any proceeds of her share in the house property.
8.2As to her claim for additional food and consumables expenditure, I have found the disparity commenced in 1995 and was total by 1997, continuing through to March 2001. Further to that, whilst the plaintiff expended additional moneys on capital items, she had the use and benefit of them during cohabitation. I have already made an adjustment in the plaintiff’s favour which reflects earnings foregone on each of those additional expenditures during cohabitation and, accordingly, I am not prepared to allow interest upon them prior to 27 March 2001. I will award interest on $10,000 since 27 March 2001 at 6 per cent, a figure I calculate at $1,025.
8.3I will then allow interest on the $3,000 reinstatement cost from 27 March 2001 at 6 per cent, a total of $307.
8.4Finally, I calculate interest at the full rate on the rental assessment of $8,000 from 27 March 2001 at 6 per cent, but will then halve the total to reflect the progressive nature of this loss – a nett figure of $410.
9.     Summary of orders for division of personal property:
That the defendant pay to the plaintiff the following sums:
(1)As per paragraph 4 hereof  $10,000
- interest thereon  $1,025
(2)As per paragraph 5   $3,000
- interest thereon  $307
(3)As per paragraph 6  $8,000
- interest thereon  $410
_______
TOTAL:$22,742
10.    I thus order:
(1)that the whole of the land comprised and described in Register Book Volume 5299 Folio 923 and being the property situated at 11 Britton Avenue, Tranmere, be forthwith sold: I will hear from the parties as to the manner of sale;
(2)that from the nett proceeds realised and available to the proprietors after payment of all selling and conveyancing fees, adjustments and unpaid taxes, there will be paid:
(a)     to the plaintiff, 50 per cent thereof plus the sum of $22,742, less the amount of $75, being the plaintiff’s unpaid share of water rates) and less any share unpaid by her of any rates and taxes accruing on the property between trial and settlement;
(b)    to the defendant , the balance thereof.
I will hear from the parties as to any other enabling orders and as to costs.

[2002] SADC 159

11 December 2002