G, JC v C, RM - [2015] SADC 105

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
G, JC v C, RM
[2015] SADC 105
Judgment of His Honour Judge Stretton
3 July 2015
FAMILY LAW AND CHILD WELFARE - DE FACTO AND OTHER RELATIONSHIPS UNDER STATE LEGISLATION - ADJUSTMENT OF PROPERTY INTERESTS - GENERALLY
The plaintiff sued the defendant for a division of property pursuant to the Domestic Partners Property Act 1996, and for assault. The parties lived together for two periods between 1998 and 2004. There was considerable dispute as to the contribution made by each party to the other, as to much of what happened during the course of the relationship, and as to the circumstances of the alleged assaults. The defendant claimed the plaintiff’s contribution had been fully compensated for, and that the assaults while admitted were minor and had been provoked by the plaintiff.
Held:
1. On close analysis, the plaintiff’s evidence as to disputed events was often fundamentally inconsistent, often inherently unlikely and on occasion starkly contradicted by credible independent evidence, such that it was ultimately neither credible nor reliable. In several respects the only available conclusion is that the plaintiff’s evidence was deliberately fabricated to support the litigation. The defendant’s evidence was straightforward, supported by the independent evidence, and had the ring of truth. The course of events as described by the defendant is established on the balance of probabilities.
2. The plaintiff did make a moderate contribution to the maintenance of the defendant’s assets during the course of the relationship.
3. The defendant’s contributions to the plaintiff significantly exceeded the plaintiff’s contributions, and accordingly the plaintiff’s contributions were fully recognised and compensated for. The plaintiff’s claim pursuant to the Domestic Partners Property Act 1996 is therefore not established.
4. The two assaults admitted by the defendant are established. Each assault was provoked by the plaintiff. Neither resulted in injury to the plaintiff. Damages assessed at $500 and $750 respectively.
Domestic Partners Property Act 1996 ss10 and 11; Evidence Act 1929 , referred to.
Hogg v Roberts [2003] SASC 410; Jones v Dunkel (1959) 101 CLR 298, considered.

G, JC v C, RM
[2015] SADC 105
The action

This an action pursuant to the Domestic Partners Property Act 1996, and a common law claim for assault.
The plaintiff’s action pleads[1] that she lived in a continuous bona fide domestic relationship with the defendant from about November 1998 to February 2004, making substantial financial and non-financial contributions to the defendant’s property. She also claims she was assaulted in the course of the relationship. As a result she seeks a declaration that she was in a de-facto relationship with the defendant for the relevant period, an order dividing the defendant’s property, a declaration that the defendant holds a proportion of his property on trust for her, payment to her of a sum reflective of her interest in his property, and damages for civil assault, including aggravated and exemplary damages.
[1] Per her Further Amended Statement of Claim dated 22 February 2006.
The defendant responded[2] admitting the parties lived together in a genuine domestic relationship, but not for the full period claimed by the plaintiff but rather between November 1998 and 15 December 2001, whereupon they separated, then resumed living together in November 2002 finally separating in February 2004. The defendant claimed that although the plaintiff had made some contribution as a homemaker and to his business it was not as extensive as she had claimed, and that he had provided her with accommodation at no cost together with significant financial support. The defendant admitted physical altercations with the plaintiff but asserted that she had been the aggressor on each occasion.
[2] Per his Amended Defence dated 3 April 2006.
Whilst there was a dispute on the pleadings as to the period the parties were living together on a genuine domestic basis, when they gave evidence it turned out that there was no issue as to the time frames they lived together in such a relationship.
Actions for division of property pursuant to the Domestic Partners Property Act
The Domestic Partners Property Act (the Act) provides that where two people have lived together as a couple within South Australia on a genuine domestic basis for at least three years, an application can be made to the court for a division of property belonging to either or both persons.
The Act is designed to effect a timely and final resolution of disputes over property arising between unmarried domestic partners.
The Act requires the court to finally resolve insofar as it is practicable all outstanding questions about the division of property between domestic partners and avoid further proceedings between them.
Section 10 provides that on an application for the division of property after the end of a domestic partnership the court may make such orders as it considers necessary to divide between the domestic partners the property of either or both partners ‘in a way that is just and equitable’.
Section 11 sets out the criteria that a court must apply on the making of such an application.
11—Matters for consideration by court
(1)In deciding whether to make an order for the division of property under this Part, and if so the terms of the order, the court—
(a)     must consider the financial and non-financial contributions made directly or indirectly by or on behalf of the domestic partners to—
(i)the acquisition, conservation or improvement of property of either or both partners; or
(ii)    the financial resources of either or both partners; and
(b)     must consider the contributions (including homemaking or parenting contributions) made by either of the domestic partners to the other partner or to children of the partners or either of them; and
(c)     must have regard to the terms of any relevant domestic partnership agreement; and
(d)     may have regard to other relevant matters.
The Full Court in Hogg v Roberts[3] considered the provision and outlined the way actions pursuant to it ought be approached:
[3] [2003] SASC 410.
10 The Act is in terms similar to legislation enacted in other Australian States relating to the division of property as between de facto partners. However, there are differences from State to State. In particular, not all States have an equivalent to s 11(1)(d). While decisions under legislation in other States provide helpful guidance, one must be cautious about their application if there is a difference in the relevant legislation.
11 My understanding of the Act is that the requirement to make an order that is "just and equitable" does not give rise to a general and unfettered discretion. First of all, the court is dividing property, not settling all outstanding financial issues as between the partners. Secondly, s 11(1) indicates that the contributions referred to in that provision are important considerations in deciding what is just and equitable. The initial and primary focus must be on the property in question, contributions to that property, contributions to financial resources and then contributions by one party to the other and to the children.
12 However, the obligation under s 11(1)(d) to have regard "to other relevant matters" means the contributions are not the only matter for consideration. It is to be noted that the court must have regard to "relevant matters". I think that must mean matters relevant to a just and equitable division of property. The provision is not as wide as, for example, a direction to have regard to such matters as the court thinks fit.
13 Bearing that in mind, I consider that it is not the role of the court to use the division of property to remedy any justified grievances that one party may have against the other, or to compensate one party for disappointed or unfulfilled expectations. The focus appears to me to be on a just and equitable distribution of property, after considering primarily contributions of the kind identified by s 11(1) of the Act. The task of the court is a narrower one than the task of the court under s 79 of the Family Law Act 1975 (Cth). The relevant considerations are more narrowly confined. Matters that are likely to be relevant are the length of the relationship and the immediate needs of the parties. I say "immediate needs" because the court's focus is on the division of property. In deciding what is "just and equitable", the needs of the parties at that time will be relevant. However, the court is not dividing property with a view to providing, for example, for the continuing maintenance of the parties, or taking into account their future financial prospects.
14 Other matters may be relevant. It would be dangerous to try to draw a line here in the abstract. I go no further than to say that the focus is on the just and equitable division of property and not on an order that is fair having regard to all the circumstances surrounding, and everything that happened during, a relationship.
15 I agree with the observations made in decisions in other States that the court is not concerned with attributing fault for the breakdown of the relationship; that contributions as homemaker and parent are not to be treated as inferior to material or financial contributions, they are to be taken into account in a substantial way; that contributions of a non-material kind are to be assessed in a broad way, rather than by reference to the rate of remuneration payable to commercial providers of such services, and that there is no reason to approach the matter on the basis of an assumption that an equal division is appropriate, unless there is good reason to depart from that position. I draw those propositions from the reasons of Gleeson CJ and McClelland CJ in Equity in Evans v Marmont (1997) 42 NSWLR 70 at 74. Although the legislation under consideration there was relevantly different, I consider that these basic principles apply to the Act.
16In Parker v Parker (1993) 16 Fam LR 863 Young J suggested a four-stage approach which will often be helpful. The four stages he suggested (at 870) are:
(i)    to identify and value the assets of the parties;
(ii)     to determine whether any, and if so what, contributions of type A or type B had been made by each partner;
(iii)     to determine whether in the circumstances the contributions of the applicant had already been sufficiently recognised and compensated for;
(iv)    to make the appropriate adjustment.
17 Once again, he was concerned with different legislation, but the process he suggested is likely to prove helpful under the Act. However, I emphasise that this is simply one approach. In some cases a broader approach will work better. There is no need to take what might be called a narrow approach involving a careful tracking of income and expenditure, contributions made and benefits received. The legislation requires a reasonably broad and practical approach.
18 Between stages (iii) and (iv) it will be necessary to consider whether there are "other relevant matters" to be considered. It will also be necessary to bear in mind that the object is to divide property in a "way that is just and equitable". As I have said, I do not treat that expression as opening up all aspects of the relationship, but it appears to me that the matters identified in s 11(1) of the Act do not alone dictate the order to be made under s 10(1). They are matters to be considered, they are important, but they will not necessarily be decisive.
19 What I have just said does not provide any solutions. Difficult questions will arise along the way. I have done no more than identify what seems to be the appropriate process of reasoning.
The court will have full regard to the statutory criteria and the cited authorities. The primary, albeit not the entire, focus is on financial and non-financial contributions to the acquisition, conservation or improvement of property and financial resources.
The course of trial
Both the plaintiff and the defendant gave evidence on oath. The defendant also called the two police officers who attended on the occasion of an assault alleged by the plaintiff. There were no other witnesses, which was surprising in several respects given the stark evidential contest between the parties on some issues.
The plaintiff tendered documentary material including court records, medical reports and medical records relating to her claims of assault, financial and property related documentation and related material. The defendant also tendered a range of documentation relevant to the issues.
Whilst there was broad agreement as to some matters, such as the fact that there was a relationship, that the plaintiff and the defendant each contributed to the other in some ways during the course of it, and eventually agreement that there was in fact a break of nearly a year in the middle of the relationship, there was substantial disagreement on many issues.
The disagreement was so stark, particularly on some issues, that it is plain that on many occasions both accounts could not be true. In light of the conflicts of evidence on some issues and the certainty with which the contrasting positions were expressed, in the final analysis, in the court’s opinion, someone had to be lying.
Accordingly it has been necessary to scrutinise the evidence with great care, and carefully consider the credibility of the parties, which the court has done.
The plaintiff’s case
The plaintiff J C G is a 61 year old woman. She gave evidence that after matriculating in Adelaide she worked and travelled for a period, working for lawyers before becoming an accountant at John Martins. She then studied and graduated with a Bachelor of Arts and a Bachelor of Accounting from Adelaide University.
She married in 1973 however the plaintiff said her first husband was killed in a motor vehicle accident in 1974.
The plaintiff said she went back to work, eventually working for TAA firstly at the Adelaide Airport and then as an air hostess firstly based in Melbourne and then Sydney, until about 1979 or 1980.[4]
[4] T39.
The plaintiff said that she then worked as an accountant for the Real Estate Institute of New South Wales for a couple of years.
The plaintiff gave evidence that she then travelled overseas for a couple of years, through parts of the USA and Mexico. She said she did not work during that time so it is unclear how she funded that travel or supported herself for that period.
Upon the plaintiff’s return to Australia she said she set up and ran a French restaurant on Glebe Point Road in Sydney for four years, before moving to Cairns to set up her own accounting business.
Then in 1987 the plaintiff married a second time, however the plaintiff said her second husband died in 1992.
The plaintiff said that at that time they were trying to sell their business, a timber mill in Fiji, however she said that she received no assets from the marriage due to losses from another investment in Fiji.[5]
[5] T41.
That relationship produced the plaintiff’s daughter Tamara in 1986.
Although the plaintiff was a fully qualified accountant, she then went back to university, and commenced studying law at Flinders University in 1994.
The plaintiff said that in 1996 she purchased a property at Innes Road Windsor Gardens. She said that she could not remember what she paid for it. She recalled that she paid a $20,000 deposit for it, a sum that was being ‘held in trust by a legal colleague’ for her. The plaintiff said that she had done accounting work for a client of a solicitor Jacob Van Dissel, and that her fees amounting to $20,000 had been held in trust for her by Mr Van Dissel. She gave evidence that she also borrowed a sum that she couldn’t recall from Savings and Loans, a building society, and that she consented to a person by the name of McFarlane taking a caveat out over the property as that person had lent her money ‘to assist me in making some purchases’.[6]
[6] T51-52.
The plaintiff said that while she had originally purchased the Innes Road Windsor Gardens property to live in, in fact she wanted to live at the other end of town so she leased it to tenants. The rent covered the mortgage payments and other expenses to do with the property.[7]
[7] T53.
The plaintiff said she managed her rental property herself throughout the time she was living with the defendant.[8]
[8] T308.
The plaintiff said that around 1997 or 1998, while she continued to live in rental accommodation in Coromandel Valley, she met the defendant R C at the Arkaba Hotel, and over time a relationship developed. At this time her daughter was 12 years old. The defendant had three adult children.[9]
[9] T43.
The plaintiff said that she and the defendant decided to move in together, and in late 1998 she moved out of her rental accommodation and into the defendant’s house at 47 Amber Road Highbury. At that time the plaintiff said she was in the third or fourth year of her law degree.
The plaintiff said that at the time she moved in with the defendant she owned her rental property, some furniture and personal effects, and nothing else.[10]
[10] T54.
The plaintiff said that the defendant’s house needed renovation and that she and the defendant agreed to renovate it together as ‘we were in a partnership’. She said they repaired the walls, windows and floors, and renovated the property and grounds together throughout the whole period of the relationship. The plaintiff said that she also paid for some of the tools and materials necessary for the renovations.[11] She said that she used her own income, and some of the money she received from the sale of her rental property.[12]
[11] T46-50.
[12] T51.
As later became clear in the course of cross examination, the latter could not have been the case, as it became clear from financial records put to her in cross examination that she sold her rental property after she moved out of the defendant’s house in December 2001, and had spent all the proceeds of sale on herself and her daughter prior to moving back in with the defendant in November 2002.
The plaintiff said that she believed the property opposite at 48 Amber Road Highbury was owned by the defendant as the defendant rented out, repaired and maintained it, which she significantly helped with, and although she conceded it was in his sons name she gave evidence that the defendant had told her that was only done in relation to property issues regarding his former marriage.[13]
[13] T55-59.
The plaintiff gave evidence as to what she believed the defendant’s further assets were, based on her observations and what she said the defendant had told her over time. She also gave evidence as to his business activities, which primarily related to market gardening and a fresh produce market. She said she assisted periodically with these. I have regard to, without repeating, her evidence as to that.
The plaintiff gave evidence that in early 2000 the defendant had a triple bypass heart operation and after that she provided significantly more assistance to the defendant’s business, especially in the produce market business. She said he gave her authority to act on his behalf in all financial matters. She tendered a letter dated 30 March 2000 to the ANZ Bank from the defendant’s business ‘Golden Fruit’ indicating that she would be acting in relation to financial matters concerning that business, mentioning his unavailability from recent illness.[14]
[14] P1, p1.

The plaintiff gave evidence that, after the defendant’s operation, she assisted the defendant and his business extensively, splitting her time between the defendant’s business, her legal studies, her daughter, and domestic duties. The plaintiff gave evidence that she performed the majority of domestic duties in any event.
The plaintiff indicated she utilised her legal and/or accounting skills to represent the business in court, attending and representing the business to successfully resist debt collection claims against the company in Mildura, Sydney and Adelaide.
The plaintiff said she did not complete negotiating the Mildura matter as there was a personal matter that occurred between the defendant and her daughter she was unhappy about, that caused her to return to Adelaide. Notwithstanding an indication by the court of its preference to be informed about that, the plaintiff did not further discuss that matter at that stage of her evidence.[15]
[15] T71-72.
The plaintiff terminated the defendant’s book-keeper and took over the accounting. The plaintiff said she did that on the defendant’s instructions. The plaintiff said she also assisted and advised the defendant in relation to other matters he was involved in, such as the Pooraka Markets. She would accompany him to meetings and conferences, including ones held in Bondi and Port Stephens, and would advise and assist him in that regard. She said she assisted in the ultimate sale of the defendant’s business.
The plaintiff said that for all her assistance to the defendant and his business activities she was never recompensed or paid a wage.
A part of the plaintiff’s claim against the defendant is also that she received Centrelink payments which she contributed to the relationship, but which she had been required to repay to Centrelink, and which she therefore wished to recover 50% thereof from the defendant.[16] In her statement of claim the plaintiff states that she received ‘overpayments’ by Centrelink of the following sums for the following periods, totalling $49,314.24, which she was now required to repay Centrelink.
a.Parenting Payment for the period 27 November 1998 to 17 December 2001 totalling $30,798.31.
b.Rent Assistance for the period 3 December 1998 to 15 December 2001 totalling $7,624.39.
c.Guardian’s Allowance for the period 3 December 1998 to 10 July 2000 totalling $1,561.55.
d.Newstart Allowance for the period 19 November 2002 to 30 September 2003 totalling $9,329.99.
[16] Further Amended Statement of Claim paras 12-13, 20-23 and 31.
When the plaintiff gave evidence about this[17] she said the defendant knew all about it, although she could not recall when, where or the contents of any discussion she said she had with him, but that he was aware of what she was doing and fully agreed. The plaintiff said she used the money for general shopping including groceries. The plaintiff admitted that at the time she was receiving all these benefits she was living with the plaintiff in a full time relationship, was not paying rent, and owned a rental property for which she was receiving rent. She had the rent paid directly into her mortgage account.
[17] T80-87.
When asked why she continued to claim from Centrelink when she was in a full time relationship, the plaintiff said in examination in chief: ‘that was income I had for myself and my daughter. If I needed something for my daughter then I had the funds readily available for her, as well as any money that I needed to use for purchasing groceries or anything that was required’.[18]
[18] T83-84.
The plaintiff agreed she was not entitled to any of the earlier listed monies she had claimed, and had been served notice to repay the monies. The plaintiff said she had made some repayments but that at the time of trial there was roughly $37,000 still owing.
The fact that the plaintiff, a fully qualified accountant, who was also in the process of completing a law degree, would claim four separate kinds of Centrelink benefit over such extended periods, totalling nearly $50,000, to which she was plainly not entitled, is a matter of concern. Such behaviour potentially calls her honesty into question, and potentially affects the court’s assessment of her credibility as a witness.
There is also a legal issue as to whether as a matter of law and public policy a litigant can sue to recover unlawfully acquired funds to which she was never entitled, used in part to allegedly benefit a third party, from that third party.
The plaintiff gave evidence that she completed her law degree in 2001.
The plaintiff gave evidence that she had to defer some of her legal studies to assist with the defendant’s business. When asked in examination in chief about when it was that she did that, she replied: ‘I would have to go back and actually look at my transcript which I don’t have on me in that respect.’ On further questioning she said she may have deferred one or two subjects per semester, and it may have been mid semester.[19] The plaintiff’s evidence in chief was vague as to this, and the academic transcript was never produced.
[19] T90-91.
The plaintiff gave evidence that she did some tutoring work in 2003, and some private accounting work in 2003-2004. She said she earned about $600 a month for these activities. When asked what she did with the money she said she gave it to the defendant in cash every month, although she did not know why, however she gave it to him for no reason.[20] At first blush, this evidence seemed highly unlikely, given the plaintiff’s evidence as to her very limited financial resources, the needs of her daughter, and in light of her ongoing efforts to obtain Centrelink monies to which she was not entitled.
[20] T92-93.
The plaintiff gave evidence that she separated from the defendant on 15 December 2001, when he assaulted her, and she moved out with her daughter back to Coromandel Valley.[21]
[21] T94.
The plaintiff said they started seeing each other occasionally in May 2002 and went on holiday to Wilpena Pound for a few days in May/June 2002. The plaintiff said that after that trip they had made arrangements to go out to dinner but she changed her mind and decided that she did not want to go out with him, and she told him she did not want to continue seeing him. She said the defendant came around, forced his way in, and assaulted her again.[22] The plaintiff said that assault happened on 8 April 2002.[23]
[22] T94-96.
[23] T97.
It was unclear how the defendant could have assaulted the plaintiff in April 2002 after a May/June 2002 trip. April 2002 is before, rather than after, June 2002.
The plaintiff said that they reconciled and started living together again in November 2002.[24]
[24] T97.
What is clear from this is that on the plaintiff’s sworn evidence, the plaintiff and the defendant plainly did not live together on a genuine domestic basis at any time between December 2001 and November 2002, and for a significant portion of that time were in no contact at all. This evidence was quite inconsistent with the plaintiff’s pleadings. In paragraph 5 of the plaintiff’s further amended statement of claim she pleads:
5.From in or about November 2001 to in or about 15 December 2002 the parties resided at separate residences but in all other aspects continued their relationship. The parties spent several nights per week together during the said period.
This issue was put to her in cross examination, and she had no explanation for the difference between what she said in her pleadings and what she said on oath in evidence.
Whether or not the plaintiff and defendant separated and stopped having a genuine domestic relationship for almost year is a significant factual issue in the case, and the significant inconsistency between the plaintiff’s pleading and her evidence on oath remained unexplained by the plaintiff, potentially affecting her credibility.
The plaintiff gave evidence that she was assaulted three times by the defendant, the first time in November 2001 whilst they were living together, the second time on 15 December 2001 whereupon she moved out, and the third time in June 2002 when, as described above, she said they were not living together and had arranged to have dinner, but she had terminated going out with him and in response she said he forced his way into her house and assaulted her.[25]
[25] T111.
The plaintiff said that the first assault was in November 2001 while she and her daughter were living with the defendant.
When asked whether her daughter had been present for the assault she said she had a vague recollection that her daughter was present but she was not 100% sure, saying her daughter was not giving evidence in the trial as there were issues between the defendant and her daughter, and when asked whether her daughter would agree to give evidence in the proceedings her only response was a curious ‘I’m not – I don’t wish to answer that question on behalf of my daughter’.[26]
[26] T111-112.
Given that the plaintiff’s daughter would at the time of trial have been a fully adult 27 year old woman, indeed according to the plaintiff married with three children,[27] it is plain that her evidence would have been highly relevant to the contested issue of this assault, and that on balance according to the plaintiff’s evidence she would be an eye-witness to that alleged assault. She would also likely have been present during a number of the other vigorously contested factual issues in this case. There was no evidence that the daughter was not available or unable to give evidence, and she was plainly a witness that was likely ‘in the plaintiff’s camp’.
[27] T134.
The plaintiff’s failure to call her daughter, a likely highly relevant eye-witness, gives rise to the potential inference per the rule in Jones v Dunkel[28] that an unexplained failure by a party to call a witness may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted that party's case. The evidence was potentially plainly relevant, and there was no real explanation provided when it was first raised with the plaintiff as quoted above, with the plaintiff seeming to not know for sure whether her daughter was present when, even if the plaintiff was not sure, it would have been a simple matter to ask her daughter if she was present, and refusing to even answer the question as to whether her daughter would agree to give evidence.[29]
[28] (1959) 101 CLR 298.
[29] T111-112.
The plaintiff’s description of the assault she said occurred in November 2001 was in the following terms:
Q     Your daughter may have been present.
A     Yes.
Q     And what happened.
AI don’t recall how the incident occurred but the defendant assaulted me. He slapped me across the face on several occasions, bruising my face. He pulled me by the hair. He had me by the throat and I couldn’t breathe. The defendant hit my head into the door, my teeth connected to the door.
QAnd over what period of time did this take place.
AI don’t recall the time of how long it took or the time frame in relation to the assault.
QDid you suffer any pain.
AYes.
QWhat pain did you suffer.
AI suffered emotional and psychological pain in relation to the assault as well as physical pain.
QHow did the assault cease.
AAt the time the defendant was holding me by the throat and I couldn’t breathe, there was a bottle of wine on the table, in self-defence I hit the defendant over the head.
QWhat effect did that have on him.
AI don’t know, I left.
It seemed incongruous and potentially unlikely that the plaintiff would have no idea how this first, serious, assault occurred, in other words how or why it started, and also a little incongruous that in answer to a question as to what pain she suffered, that she would reply in words more akin to a pleading than a description of how she felt due to the assault: ‘I suffered emotional and psychological pain in relation to the assault as well as physical pain’. It also seemed incongruous that after hitting the defendant over the head with a bottle she would have no idea whether it had any effect and if so what affect it may have had on him.
Accordingly some time later in the course of evidence the court asked the plaintiff about it, and in contrast to her earlier answer this time she seemed to recall exactly how the first assault started:
Q… Thinking back to the first and second assaults, perhaps right back to the first one in November 2001, how did that come about. What led up to it. What were the circumstances surrounding the conflict or whatever it might have been.
AThere were issues relating to my daughter that I continually questioned, seeking answers.
QAnd you were questioning him and that’s when he suddenly attacked you; is that the way that one happened.
AYes.
QIn relation to the second assault, and you mentioned that was in December 2001 so I suppose the next month, how did that particular event come about. What … led up to that or what immediately happened prior to him assaulting you.
AFrom my recollection, again I questioned issues in relation to my daughter.
QSo you were questioning him about things and he appeared to respond violently to your questioning, is that right.
AYes.[30]
[30] T123.
This evidence was inconsistent with her earlier answer that she did not recall how the first alleged assault occurred. It relates to an important issue. It had the potential to affect her credit.
The plaintiff said she suffered bruising to her face, a split lip and a split eye. She said she was treated for her split lip and her eye at the Crafter Medical Centre by a doctor who was not her usual doctor, but a Dr Joannah Kilpatrick.[31]
[31] T113.
The plaintiff then described a second assault, which she said occurred in the following month of December 2001, in the following terms:
AThe defendant assaulted me again in December. He hit my head into the wall because the walls in the house were solid brick. He continually kicked me in the abdomen region. He had me by the throat. He slapped me across the face backhanded, I don’t know how many times. I suffered bruising, another split lip, I had bruising to the neck, bruising to the face and bruising to the back area of my head. I also had internal injury to my right ear. My ear was bleeding internally.[32]
[32] T114.
The plaintiff was asked how it ceased, and replied:
AI don’t recall how it ceased. All I know is that when I had the opportunity to leave I left.[33]
[33] T114.
The plaintiff said she drove away in her car, but because she was dizzy and disoriented from the assaults she parked on the footpath somewhere and phoned her daughter and told her what happened, whereupon she said her daughter and her friends’ parents came to where she was located and they called the police and ambulance to where she was located. She said the police and ambulance came to where she had parked, and she went to Modbury Hospital in the ambulance. She said she gave the police a statement. She went to her daughter’s friend’s parents’ house that night, however could not ‘recall the time frame I was there’.[34]
[34] T115-116.
In describing this second alleged assault in her examination in chief as recounted, the plaintiff gave no evidence initially as to how or why the assault started or about any circumstances that may have preceded or precipitated it, which again seemed incongruous. Then when re-questioned about it by the court later, she gave the answers quoted above.[35]
[35] T123.
The plaintiff said an apprehended violence order was taken out that restricted the defendant from approaching her.[36]
[36] T124.
The plaintiff gave evidence that she subsequently saw her GP Dr Ramsay as she was still dizzy, didn’t have balance and was in a lot of pain with her ear and also the bruising, and so was referred to an ear nose and throat specialist Dr Morrissey. She said that her emotional state was such that she could not sleep, had constant headaches, was agitated, had anxiety and was very nervous. She said she had ongoing counselling from Dr Ramsay for that.[37]
[37] T117-118.
The plaintiff said she did not go back to the defendant’s house but instead organised for her daughter and herself to live in Coromandel Valley.[38]
[38] T117.
Whilst separated from the defendant, the plaintiff decided to sell her rental investment property, the sale settling on 28 March 2002. The settlement statement indicates that the sale price was $142,000 and so after repaying mortgages, making payments to various solicitors, repaying her $15,000 loan from Mr McFarlane which she explained had been to buy a car for herself, and $27,945 worth of school fees for her daughter, she received net proceeds of $40,074.61.[39]
[39] T99-101, P2 (settlement statement) pp277-278.
The plaintiff said that after the December 2001 separation she did not then see the defendant at all, but that he got her phone number, and although she would hang up on him, in late February or early March 2002 she spoke to him over the phone and he apologised.[40]
[40] T94-95.
Then she said that in May 2002 they restarted an intimate relationship just prior to going on a holiday to Wilpena Pound in May/June 2002. The holiday to Wilpena Pound was for a weekend or a little longer. She said that after that weekend she decided that she did not want to go out with him, and that although they had made an arrangement to go out on a further occasion she changed her mind.[41]
[41] T94-95.
The plaintiff said that she paid some of the Wilpena trip expenses, pointing to a 21 May 2002 transaction, indicating the $920 paid to Wilpena Chalet was for their trip accommodation.[42]
[42] T105, p37.
The plaintiff described the third alleged assault in the following terms:
AThe defendant and I made arrangements to go out for dinner, it was around a week[43] and I don’t recall the exact timeframe or the date or what have you. I made it known to the defendant that I didn’t wish to continue, words to that effect. He came around to my premises where I was residing, he knocked on the door, I made it known to him that I didn’t want to see him. I made it known to him that it – you know, words to the effect that I just didn’t want to see him. He’d been drinking and I had the security latch across the door so I opened the door with the security latch on and the defendant forced his way into my home and started assaulting me. He grabbed me, he slapped me across the face numerous times, I don’t recall how many times. …… (Question)…I received a split lip, he’d tried strangling me, he had me by the throat. He pushed me down in towards the amenities region but I had my phone in my hand and I dialled triple O … (question)… And the police came to assist me.
Q. Do you recall when that took place when you were assaulted on that occasion.
A That was on April 2002.[44]
[43] This likely refers to a week after the Wilpena trip.
[44] T96-97.
The plaintiff gave evidence that at the time of this third assault she was still suffering the effects of the second assault.[45]
[45] T120.
She said the third assault ‘Impacted further in relation to my emotional state in relation to the anxiety. I couldn’t sleep properly, constantly waking up.’[46] The plaintiff said she sought and received regular weekly counselling with Dr Ramsay for the next 12 months, and albeit less regularly over time, subsequently continued to and was continuing to have counselling from Dr Ramsay even at the date of trial, which must be observed was some 13 years later. As a result of the assaults the plaintiff claimed that even today she lives a secluded life, she doesn’t socialise, she keeps to herself, her house is like Fort Knox, and she is always wary of where she is and where she is going.[47]
[46] T120-121.
[47] T121-122.

The plaintiff gave evidence that notwithstanding all this she reconciled with the defendant and started living together with him again in November 2002.[48]
[48] T97.
The plaintiff said that her daughter was again living with them during that period and was living there at the time when the plaintiff decided to move out in February 2004.[49]
[49] T130-131.
The plaintiff was asked to describe the circumstances that led to the resumption of co-habitation in November 2002, and said:
AI don’t recall exactly how it came about but we started communicating together, with each other, and one thing led to another and I ended up residing back with the defendant.
The plaintiff said that the defendant had changed and the longer she stayed with the defendant the more she realised she did not want to be with him and she saw him for who he was and not the person she had fallen in love with, citing alcohol as a factor, although she also said that alcohol had been a factor in all three of the assaults that had all occurred well before she moved back in with him in November 2002.[50]
[50] T126-128.
Therefore she said she and her daughter moved out, and they stayed with friends while she organised accommodation in the hills. She said she had no further contact with the defendant.[51]
[51] T130.
In that context, the plaintiff was asked about any concerns she had with the defendant and further described the circumstances of she and her daughter moving out in the following terms:
Q     The question was what were your concerns when you moved out.
A     I was concerned about the safety of my daughter and myself.
Q     Did the defendant do anything that raised those concerns.
ANo, not in relation to the final separation but in past experience with the defendant, I didn’t want him to locate where my daughter and I were residing … .
The plaintiff gave evidence that she left the property without taking anything or any of her property with her, however some but not all of it was returned to her.[52]
[52] T135.
As earlier mentioned, the plaintiff had completed her law studies in 2001 while co-habiting with the defendant, and gave evidence that she became admitted to practice in NSW but had not been able to find work as a legal practitioner. She also said that she had subsequently completed her Masters in Commercial Law at the University of Southern Queensland and was at the time of trial on the verge of completing her doctorate at that same university. She said she was also a registered CTA with the Tax Institute of Australia.[53]
[53] T131-132.
The plaintiff gave evidence that she worked as a conveyancer for a legal firm Cameron Price in far north Queensland for six months in 2006. When asked what she earnt for that period she replied ‘If I can recall correctly, to the best of my knowledge I was receiving approximately $800 a week. I’d have to go back and check my tax returns in that respect.’ The plaintiff did not tender any tax returns.
The plaintiff said that despite all these qualifications she was however at the time of trial unemployed, on Centrelink, living in rental accommodation paying $340 a week rent, and had no money or assets apart from furniture and personal effects and a second hand car she bought 6 years ago.[54]
[54] T132.
When asked if she had had any marriages or long term relationships since the defendant, the plaintiff gave evidence that on 27 December 2007 she married a third husband, this time a Canadian she met on the internet, but the plaintiff said that after a two week honeymoon he returned to Canada and subsequently died. She gave no evidence about any financial arrangements between them, nor whether she inherited anything from him.[55]
[55] T133-134.
She gave evidence that the defendant had paid her daughter’s school fees at Torrens Valley Christian College. After that her daughter attended Scotch College. After that her daughter attended University Senior College during 2003. The plaintiff agreed the defendant paid some of those school fees but could not recall how much.[56]
[56] T103.
The plaintiff tendered photographs, primarily concerned with the condition of the defendant’s properties and aspects of his business, and confirmed her affidavit of loss.[57] She said that she had not in fact incurred the $3000 claimed in her affidavit for psychological treatment, as she has not actually sought treatment from a psychologist, and her counselling with Dr Ramsay was bulk-billed.[58]
[57] T135-144.
[58] T145-146.
By the conclusion of the plaintiff’s evidence in chief there had been a number of matters which had already potentially affected her credit, as discussed. In cross examination there were a plethora of matters of similar concern, which raised serious questions as to the plaintiff’s credibility and, regrettably, her honesty.
Before discussing matters that arose in cross examination, there were matters arising in her own medical reports of serious concern. Perhaps the most serious arises as a result of her attendance for assessment by a clinical psychologist, Associate Professor Dr Michael Wood, on 8 January 2003. The report indicates it was a medico-legal assessment requested by her then solicitor, Mark Esau.
On the plaintiff’s evidence at trial, at what would have been the time of her attendance to see Dr Wood on 8 January 2003, she had recently in November 2002 reconciled with the defendant and had moved back in with him and was living at his house, and was involved in an intimate, fully fledged, full time relationship with the defendant. She gave evidence in this court that she continued to live with and have a fully-fledged relationship with the defendant right through until February 2004 when she realised she did not want to be with him anymore, and together with her daughter moved out of the defendant’s house. In other words, at the time of the plaintiff’s consultation with Dr Wood on 8 January 2003 she was seemingly happily living with the defendant, at his house, in a full time relationship.
Yet Dr Wood’s report indicates that as at 8 January 2003 the plaintiff was actively seeking evidence by way of medico-legal assessment, seemingly in contemplation of litigation against the defendant. Indeed there seems little doubt that this was the case, as Mr Esau the plaintiff’s solicitor also sought detailed medical reports from both Dr Ramsay the plaintiff’s GP and Dr Evan Markwick the director of the Modbury Hospital’s emergency department, receiving reports from those practitioners in January 2003.[59]
[59] The reports are in P3.
So, while seemingly genuinely reconciled with the defendant, it is clear that in January 2003 the plaintiff was actively planning legal action against him and going to considerable effort and likely expense to collate medical evidence for that purpose.
But of more concern is what the plaintiff told Dr Wood in the course of her consultation with him on 8 January 2003. Bearing in mind that the plaintiff was ostensibly happily living with the defendant in Highbury at the time, she told Dr Wood the complete opposite. After describing the third assault against her, and that there was a restraining order in place against the defendant; she said:
Reminders of the assault produce distress in her and she does not travel near Highbury. She does not answer her telephone, but uses a message bank as a means of filtering calls. Ms G explained on direct questioning that she would do anything that was necessary to avoid contact with the assailant.[60]
[60] P3, p7 - Dr Wood's report at p4.
So, at the time the plaintiff was ostensibly living happily with the defendant at Highbury, she was obtaining medico-legal reports against him, and telling the psychologist Dr Wood that she never went near Highbury as she was doing anything necessary to avoid any contact with him. There is no suggestion of any error in Dr Wood’s report, which was tendered by consent. There is also in the court’s view no room for misunderstanding.
Regrettably, there is therefore the strongest indication than the plaintiff was telling Dr Wood detailed and deliberately concocted lies to support litigation that she was already planning against the defendant. Regrettably, that must cast a significant question over anything else she may have said to any other medical personnel in relation to this matter. If she was prepared to lie so comprehensively to Dr Wood to support this litigation, it also casts a significant question over her honesty as a witness in this matter.
The plaintiff saw Dr Wood again on 9 October 2013. At this time the plaintiff expanded her allegations against the defendant, twice repeating to Dr Wood that the defendant had in fact also sexually assaulted her.[61] This was quite inconsistent with both the plaintiff’s evidence and her pleadings. Given the forthright nature of both the plaintiff’s presentation in the witness box, in the context of the nature of her litigation against the defendant, and her detailed evidence concerning the relationship and the defendant, the court has little doubt that if the defendant had in fact sexually assaulted the plaintiff it would have featured prominently in the claim against him, and that accordingly that part of the history she gave to Dr Wood was likely to be untrue.
[61] P6 at pp3 and 4.
When the plaintiff was cross examined, a number of other matters were raised of potential concern. I will deal with only some of those matters.
In cross examination the plaintiff admitted she had been dealt with for prostitution related offences in both 1995 and 1998, those charges each resulting in fines in the Adelaide Magistrates Court. The plaintiff said that she did not recall when she began to work as a prostitute, but said she had only been doing so for a month or two at the time of the first offence in 1995. She said that although on that occasion she was fined for receiving monies paid in a brothel, she did not recall it as being in a brothel, and she could not recall where it was.[62]
[62] T147-150.
In relation to the 1998 matter, she said that occurred on the first occasion that she was working at the premises concerned and she never went back, although she could not recall the name of the premises or where they were in the city. The plaintiff said that she also could not recall exactly when she was working as a prostitute, and although her answers were jumbled, she seemed to be saying she only worked as a prostitute for several months, and did not do so after late 1994 or early 1995. She could not explain why, in that event, her second offence was not dealt with until 1998.[63] 1998 was the year she met and moved in with the defendant. She denied she was working as a prostitute at that time.
[63] T147-150.
The plaintiff had however discussed this with Dr Wood on 8 January 2003, and he reported what she said to him on that occasion:
They decided to return to Australia and he (her second husband) died on the 7^th September 1992. The business was a failure and Ms G returned to her family in Adelaide. She returned to University and enrolled in a law degree... …
Ms G explained that because of considerable financial constraints and her wish to have her daughter educated at a private school (Walford), she had sought employment with an escort agency. She said she was a victim of police entrapment and was charged with an offence. She had objected to the charge through a lawyer and it would appear that the charge was eventually overturned.
She then worked in her own escort agency and stated that she was able to ensure that her clients were genuine.
The thrust of what the plaintiff told Dr Wood is that the charge against the plaintiff was overturned, and that rather than just working for a couple of months in two agencies owned by others, after her experience with police in one escort agency the plaintiff successfully set up and carried on her own escort agency business to fund her daughter’s private school fees. The accounts do not sit comfortably with each other.
The plaintiff was then asked about the circumstances of her finally leaving the defendant. She agreed that when she left, she left a lot of her property and personal effects there, and a three page list written by the plaintiff was tendered as D1, indicating a substantial amount of property including computer equipment, phone, clothing, furniture, personal effects, photos, CDs, even her aquarium.[64] The plaintiff said that she had no specific reason why she left everything there, and she intended getting the property back at a later date, which she did, and she denied leaving in any kind of hurry.[65] She moved in to some friends’ property in the somewhat remote location of Monarto, not disclosing that fact to the defendant or to Centrelink.
[64] T157-161.
[65] T161.
The plaintiff denied ultimately leaving the defendant’s house in early February 2004 due to the attendance of Centrelink officers investigating her, or knowing anything about that, or being told by the defendant that Centrelink officers were trying to speak to her, or of them returning a second time and of her running from the premises and never returning. She flatly denied Centrelink officers visited, and denied that any of those events ever took place.[66] It is objectively hard to understand why the plaintiff would leave so suddenly, leaving nearly everything she owned at the defendant’s house, never to return, for no apparent reason apart from having decided that she did not want to continue with the relationship. She did not suggest there had been any incident with the defendant or any further assault or any threats that would require such a sudden and dramatic departure, in effect leaving virtually everything there. The plaintiff’s evidence about this was hard to accept, even considered in isolation.
[66] T161-163.
Centrelink records were tendered as P9, which tended to indicate that from 30 September 2003 Centrelink officers were conducting a review to assess whether the plaintiff was living together as a couple with the defendant. The records indicate that an officer phoned the plaintiff on 30 September 2003 and the plaintiff told him she and the defendant lived in separate premises, she in 47 Amber Road, and the defendant in 49 Amber Road, and that the defendant was in fact her landlord. Apart from the fact that she lived at 47 Amber Road, none of that was true.
The plaintiff was specifically cross examined about her Centrelink claims and admitted that while she lived with the defendant she dishonestly claimed and accepted the Newstart Allowance and the Guardian’s Allowance, and did so for several years, knowing she was not entitled to receive them.[67]
[67] T165-166.
While the plaintiff accepted that the defendant paid the bills and did not charge her rent she denied he bought groceries or regularly gave her any money.[68]
[68] T166.
The plaintiff was taken to her bank accounts which show $5000 was deposited in cash into her account on 10 February 2004, almost exactly the time she moved out from the defendant. When asked where that came from, the plaintiff said that it was money she had left over from the sale of her rental property at Windsor Gardens, however she could not say where she had been keeping it or where she had retrieved it from. Then a few questions later she said she had withdrawn it from another account which she had closed and which she no longer had the paperwork or any bank statements for.[69] The answers were not consistent with each other.
[69] T168-171.
Her statements then show the whole $5000 being withdrawn between 10 February and 8 March. An analysis of the sale documentation relating to her Windsor Gardens property indicates the entire proceeds of that sale had been utilised and dissipated by November 2002, so the plaintiff’s evidence as to the source of that $5000 could not be accurate or indeed, true. The overwhelming impression given is that the plaintiff sourced the money from somewhere that she is simply unprepared to disclose as it would not assist her case, and has not been truthful or accurate to the court about it.
The plaintiff was then asked about the acquisition of her Windsor Gardens property in more detail.
The plaintiff was shown documentation that had been tendered as part of her case, from tender books P1 and P2.
She agreed that as a qualified conveyancer she was familiar with the type of documents in question.
The plaintiff was shown the transfer to herself indicating a purchase price of $60,000, together with a mortgage to Savings & Loans stamped to $56,400. At this point the plaintiff said she had a memory that the property had in fact cost $65,000,[70] which seemed inconsistent with what she had said in evidence in chief that she did not know how much she paid for the property.[71]
[70] T182.
[71] T51.
The plaintiff was asked where she got the rest of the money to purchase her house, she replying that she had done contract accounting work for one of Mr Van Dissel’s clients, who she was not able to name, over a six to nine month period in 1995/1996, for a $20,000 fee being a percentage of the funds subsequently raised. She agreed she was claiming Centrelink at the time and did not inform Centrelink, but denied that having the money go directly into Mr Van Dissel’s trust account was to conceal it from Centrelink and preserve her Centrelink payments.
The plaintiff also admitted that although she had earnt the $20,000, she did not declare it as income to the Tax Office either. She said:
QYou indicated that you didn’t declare any of this to Centrelink, did you declare any of this as income to the Tax Office.
A     No.
Q     Why didn’t you do that.
A     I didn’t think I had to at the particular time.
QWhat made you think that this income was not income that had to be declared to the Tax Office.
ABecause it was held in trust and it was utilised for paying a deposit on my home at Windsor gardens.
QDo you believe that it is not assessable income.
AAt the time I didn’t think it was necessary. I’m not saying that I believe it, now I know different but at the time I didn’t make it known.
QAt that time did you not believe that that was assessable income.
AAt that time I didn’t think it was necessary to make it known to be available as funds because it was being used to purchase a property for myself and my daughter to reside in.
QDo you seriously suggest that money you had earned over six to nine months, some $20,000, somehow became non assessable income because you decided to use it to buy a house.
AI know I earned the income and I didn’t declare it.
QWhat I am asking is did you honestly believe that because you were using those monies to buy a house they were not assessable as income.
AAt that time, yes.[72]
[72] T188.
This evidence was simply not believable. The plaintiff was a fully qualified accountant who had worked as an accountant in various roles, had run her own Queensland accounting firm, and had completed a law degree. The inescapable conclusion is that the plaintiff had the fees she had earnt for her work placed in the solicitor’s trust account, then had them directly disbursed for the house purchase, thereby never entering an account in her own name, for the joint purpose of enabling her to conceal the income from Centrelink and unlawfully claim Centrelink payments, and avoid declaring the monies on her tax. Her denials on oath were accordingly untrue. The evidence reveals both dishonesty with Centrelink and the Tax Office and, in denying the true situation, dishonesty to the court.
The plaintiff admitted she now agreed that the income needed to be declared, but then somewhat startlingly said she had always known that she should have declared it, and had known that in December 1996 when she failed to declare it. This was the opposite of what she had said in the above quoted passage.[73] When this inconsistency was put to her, her evidence became even more jumbled on the topic, seeming to at one point indicate she knew at the time she needed to declare it but maybe that she could declare it at a later time, at another stage indicating that she accidentally didn’t declare it, finally indicating that she would now declare it as soon as she could.[74]
[73] T191.
[74] T191-192.

This evidence was quite unbelievable. Indeed it is plain she deliberately organised these monies to be managed directly into a trust account and out to the property for the very purpose of avoiding having to declare it and pay tax on it, or it interfering with her Centrelink payments.
Then the plaintiff was asked about the purchase itself, and when shown the documents she herself had tendered agreed that the loan facility of $54,449 was fully drawn down, which comprised $53,324 for the loan, and the rest of the facility used for other purchase costs such as registration and searches. With reference to the documents she agreed that after application of the loan monies, she only needed $7,000 or $8,000 to complete the purchase. She was then asked to explain her evidence that the $20,000 in trust was used, when only about a third seemed required on the documents, and she said she did not know.[75]
[75] T193-194.
She said she agreed she purchased the house for $60,000 and borrowed $54,600 from the bank and accordingly even after all costs only needed $6,000 or $7,000 to complete the purchase, but maintained she ‘Was under the belief at the time that all the $20,000 that I had earnt had gone to the purchasing of the house.’[76] She was asked:
Q     It doesn’t look like it.
A     No it doesn’t, that’s the first time it’s been brought to my attention.
Q     Are you serious?
A     I’m serious.[77]
[76] T194.
[77] T195.
The plaintiff was asked if she thought the solicitor had behaved dishonourably and the plaintiff responded that she had done the work for his client and the agreement was that she receive 10% of the loan funds that she had organised for the client’s ventures, and that totalled $250,000, and so she understood that in fact she should have received $25,000. When asked if this sum in fact went into the solicitor’s trust account the plaintiff became even vaguer, responding ‘I don’t know which trust account it went into. All I know is that it was supposed to be held in my interest.’ The plaintiff said she never got any confirmation it did so, nor that it had been received or had occurred, and that in fact she never knew if she even had the money, saying at one point ‘This is the first time it’s been brought to my attention because I never looked into it any further. I purchased the house and that’s all I basically wanted to do at the time.’[78]
[78] T196. Also, see further XXN over the subsequent pages T197-202.
It is, regrettably, again, simply unbelievable evidence. Even putting aside that the $20,000 had changed to $25,000 in the course of the plaintiff’s evidence, almost nothing about it is believable. It is just not credible that the plaintiff, a fully qualified and practicing accountant, in need of money and reliant on Centrelink benefits, would seemingly not care, or seemingly not be aware of any of the details of where her $25,000 earnings for her house deposit were deposited, or that she would apply for and draw down a $56,000 loan when far less than that was needed given she already had $25,000, or that upon settlement she would neither notice or care that having borrowed $56,000 to buy a $60,000 home, and applied $25,000 of her own money to it, she ought to have had even after purchase costs nearly $20,000 left over. Her answer on that last issue was as follows:
Q     Couldn’t you subtract 25,000 from 60,000 in December 1996.
A     In December ’96, yes.
Q     Did you do that.
A     No.
Q     Why not.
AI’m not able to answer that question. You’re asking me something that’s happened a long time ago.
The plaintiff’s evidence on this whole topic is inexplicable and not believable. The only explanation is that the plaintiff is not willing to reveal the true situation concerning her financing and purchasing of the house in question, as it will not help her case to do so.
The plaintiff was then taken through her subsequent sale of that property in 2002. The plaintiff repeated the claim that had made in evidence in chief that she used some of those funds on utilities after she reconciled with the defendant at the end of 2002, although she did not recall the amount.[79]
[79] T217.
The plaintiff received the net settlement monies, after payment of her mortgage, substantial school fees, legal costs to various solicitors for work over time, and the repayment of her loan from Mr McFarlane for an earlier vehicle purchase, of $40,074 into her account on 2 April 2002, some five months after she had separated from the defendant on the first occasion.[80]
[80] T219.
That sum represented a very considerable profit from her real estate investment, given she had also repaid significant debts for her car loan from Mr McFarlane and her daughter’s school fees out of the settlement sum, in addition to the $40,074 cash she received on top of those amounts. Indeed, the documents show she purchased the house for $60,000 in 1996 and sold it for $142,000 in 2002, with accordingly a gross profit of $82,000.
She had been living in a close domestic relationship with the defendant for half that 1996-2002 period, and there is little doubt that the fact that she lived with him rent free and him paying various other payments such as some school fees and holidays allowed the plaintiff to pay both the rent and some Centrelink payments directly into the mortgage and hence support that investment as it grew in value, ultimately resulting in the said $82,000 gross profit which then allowed her to repay her $15,000 car loan from Mr McFarlane, her daughter’s school fees, other legal fees, and still have $40,074 in cash left over.
Strangely a little later in her evidence the plaintiff seemed to forget what the loan from Mr McFarlane was for, saying she could not remember what that loan had been for.[81] Regrettably, her evidence was peppered with inconsistencies like this.
[81] T254, lines 28-32.
She was then taken through her bank accounts and her expenditure apparent therein, and had to admit that between 2 April and 6 November 2002, she had spent the entire sum of $40,000 in that period, prior to moving back in with the defendant in November 2002.[82]
[82] T205-227.
It is accordingly plain that the plaintiff’s evidence both in examination in chief and cross examination that she spent a proportion of the sale proceeds on utilities for the defendant was not accurate.
She was also then unable to maintain her earlier evidence that the $5000 cash payment shown going into her bank account on 10 January 2004, around the time of her departure from the defendant’s house, was from proceeds retained from the sale of her Windsor Gardens house, and so faced with the records to this effect she replied that in fact she had no recollection of where those funds had come from. She denied having taken the money from the defendant.[83]
[83] T229-230.
There were other deposits into her accounts in the course of her relationship with the defendant that she could also not explain, for example an $800 cash deposit in January 2000 at around the time the defendant had his heart operation. She denied that was cash that the defendant gave her, maintaining that he never gave her any money. She said that while she had no idea where it came from it definitely did not come from the defendant, repeating that he never gave her any cash ever, for any reason.[84]
[84] T236-238.
She could also not explain cheque deposits into her account of $1,488 on 3 July 2000, or $1,820 on 25 July 2000 at the time when she was actively involved in the defendant’s business and authorised to write cheques. She denied writing the cheques to herself.[85]
[85] T240-241.
The plaintiff was then cross examined about her use of the defendant’s credit card over the last 6 months or so of the relationship before she first moved out, between June 2001 and December 2001.
The plaintiff agreed that she charged thousands of dollars of dental work to the defendant’s credit card during that period, together with other personal purchases.[86] She put dental work in the sums of $2,166 on 12 July 2001, $1,910 on 15 August 2001,[87] $2,822 on 14 September 2001,[88] $1,000 on 9 November 2001,[89] $3,295 on 20 November 2001,[90] totalling some $11,000. The plaintiff admitted she had done this by taking the defendant’s details to the dentist and saying that she was ‘Mrs R C’. She denied she had done this without the defendant’s authority.[91]
[86] T243 et seq.
[87] T247.
[88] T248.
[89] T258.
[90] T261.
[91] T259.
She denied a number of other payments, however admitted that she charged $1,078 worth of purchases from Butterworths the law book publisher, to the defendant’s card on 3 December 2001, again claiming it was with the defendant’s authority.[92]
[92] T263.
Another matter that significantly affected the plaintiff’s credit were entries on the defendant’s credit card that related to storage fees. [93]
[93] T249-254.
It was put to the plaintiff that on 8 November 2001 she had charged $315.40[94] to the defendant’s credit card for ‘Storage 2000 Croydon Park’. She denied making the payment or knowing anything about it.[95]
[94] The transcript has a different number however that is a typographical error, and should read $315.40, see repeated question with this correct figure a couple of pages later at T251, and the original Visa statement per the referred to exhibit, for 8 November 2001.
[95] T249.
The plaintiff was however then taken to an entry in her own bank account statement, for 3 January 2002 after she had moved out, indicating a payment on that date of $282.20 from her own account to ‘Storage 2000 Croydon Park’ and had to admit she had made that payment, although she said she couldn’t recall what was in storage.[96] Then the plaintiff admitted she had put the 8 November 2001 payment to ‘Storage 2000 Croydon Park’ on the defendant’s credit card, and had done so without the defendant’s consent.[97] Then she said that although she agreed she had said that, she did not believe she had done it without the defendant’s consent. She said she had no idea what was in storage, even though the fee would have amounted to a sum equivalent to most of her fortnightly Centrelink payment. She said that the storage she had arranged and the payment she agreed she had made were a complete mystery to her.[98]
[96] T250.
[97] T251.
[98] T250-253.
This evidence is also impossible to accept, indeed the plaintiff’s responses to the questions that in effect that she had no need for such storage and could not explain it and had no idea what it was for, or why she spent so much of her limited resources on it were inexplicable. When the plaintiff moved out from the defendant’s home on 15 December 2001, she claimed she did so on the spur of the moment because she claimed he seriously assaulted her on that day. If she had been organising storage from November 2001 for the purpose of moving out and taking furniture and property with her, which indeed she did in December 2001, that provides a much more likely explanation for organising the storage and also casts the events of 15 December in a potentially quite different light to how portrayed by the plaintiff.
The plaintiff denied that she had misused the defendant’s credit card for six months, intercepted his statements, and charged numerous items to it without his consent. She denied that she was asked by the defendant to leave when in December 2001 he rang the bank to find out why he had not received any Visa card statements and found out his card was overdrawn to $11,019 and realised what she had done.[99]
[99] T265-266.
The plaintiff denied she intercepted an application form to increase the limit and increased his credit card limit during that period, but said if she had signed such a form it would have been with the defendant’s authorisation.[100] Then, after some legal argument for some pages about the admissibility of documents concerning the issue, the plaintiff then appeared to remember that she had in fact opened a letter containing an increase in credit limit application belonging to the defendant, and that she had in the latter half of 2001 signed it and increased the defendant’s credit limit on his Visa credit card,[101] agreeing that the limit was increased in November 2001 from $6000 to $10,000. She denied she was running up expenses on the defendant’s card preparatory to leaving him, albeit that on 8 November she had organised and paid for storage facilities to be available in Croydon Park,[102] as previously discussed in these reasons.
[100] T266-267.
[101] T283.
[102] T284-285.
At this point the plaintiff, contrary to her earlier evidence, seemed to in fact know what the storage was for, saying ‘Yes, there were some boxes of different goods that had never been unpacked and I put them in storage out of the way’.[103]
[103] T286.
Then a moment later, the plaintiff gave different evidence again on the topic, this time:
Q     Is it your evidence that you in November 2001 arranged for some storage.
A     Yes.
Q     But put the charge on Mr Cs’ credit card.
A     Yes.
Q     And why did you arrange for that storage at that time.
AThe defendant sexually assaulted my daughter. When he was confronted on the issue he denied it, and children don’t lie.
QWhy did you arrange for storage on 8 November 2001.
ABecause I had some things I wanted to move out after my daughter made it known to me that the defendant had sexually assaulted her.
QYou didn’t give this evidence yesterday Mrs G, did you.
ANo.
HIS HONOUR
QDid you believe her.
AYes.[104]
[104] T287.
This was completely different to her earlier evidence on the topic that she had no recollection of arranging the storage and no reason to need storage, and her next explanation that she had just wanted to store some boxes that had never been unpacked, and put them out of the way.
In all, the plaintiff therefore gave three entirely different and entirely inconsistent explanations for retaining the storage unit on 8 November 2001, prior to moving out on 15 December 2001. On this topic it seemed that each time the plaintiff perceived that her answers were not going over well enough, she just decided to give a new and completely different version, perhaps in the hope that it might appear more credible or be more convincing. Regrettably, the strong impression given was that the plaintiff was deliberately and repeatedly lying to the court, and was doing so because she did not want to reveal the true reason, whatever that was, for retaining the storage unit prior to her departure from the defendant.
Further, if there was any truth at all to the final version of evidence given by the plaintiff that she honestly believed the plaintiff had sexually assaulted her daughter, then there is in the court’s view no possibility that she would have reconciled with the plaintiff in May/June 2002, still less would she have fully reconciled with the defendant and moved her daughter back in with him at some stage after she resumed full co-habitation with him in November 2002, which she plainly did.
The overwhelming impression given by the passage of evidence, when viewed against the totality of the course of evidence, is that the plaintiff likely perceived that the cross examination was not going well for her, which indeed it was not, so decided to raise the stakes and manufacture an allegation that the defendant had sexually assaulted her daughter. Where a witness is prepared to do that, it will often be difficult for a court to accept anything that witness may say unless it is entirely corroborated by other evidence. This evidence seriously reflects on the credibility and reliability of the plaintiff and the reliance the court can place on any evidence she may have given.
The plaintiff admitted that she returned to the defendant’s house shortly after she had moved out on 15 December 2001, but denied that when she did so that she took a significant quantity of the defendant’s furniture and put it into the storage unit she had rented.[105]
[105] T288.
The plaintiff denied obtaining two dividend cheques out of the defendant’s briefcase from the defendant’s business Adelaide Produce Market and denied banking them into the defendant’s Visa card, or subsequently using the $4000 represented by those cheques in respect of her admitted purchases on the defendant’s card.[106] The plaintiff repeated these denials in re-examination.[107]
[106] T290-291.
[107] T472.
When the defendant later gave evidence, these two cheques were produced and tendered. They appeared to be dated 11 December 2000 and addressed to someone else but endorsed in handwriting ‘please pay ANZ Bank Visa’, and the defendant said that it was the plaintiff’s handwriting and had not been authorised by him. The defendant’s counsel said at that stage he had omitted to put these to the plaintiff and sought her recall.
At that, the plaintiff’s counsel opposed the recall but in opposing her recall sought instructions and conceded that the handwriting on the two cheques (the endorsement to pay them both to the credit of the defendant’s Visa account) was the plaintiff’s.[108] I said I would permit further cross examination in fairness to the plaintiff so the plaintiff would have a chance to respond now that the cheques had been produced, but would only allow it with the consent of the plaintiff at that late stage of the case, and she declined to do so.[109]
[108] T993.
[109] T996-997.
I draw no adverse inference from that failure to return to the witness box, as the plaintiff was under no compulsion to do so.
It is plain however that although she had repeatedly denied it on oath, the plaintiff did accordingly take and bank the two business cheques to the defendant’s Visa account, contrary to her sworn denials. This, again, adversely reflects on the plaintiff’s credibility and reliability.
The plaintiff was asked whether contrary to her evidence she had in fact been living in two women’s shelters in 1997 and she denied it.[110]
[110] T301.
She was then cross examined about a document that was produced by the defendant as having been left at his house by the plaintiff that appeared to be a reference for the plaintiff from a women’s shelter, indicating she had lived in two women’s shelters in 1997, together with a hand written endorsement of a person’s name and telephone number. It was an apparently original document, however its contents were quite inconsistent with what the plaintiff had said she was doing prior to cohabitation with the defendant. It reads:
Irene Women’s Shelter, Inc
PO Box 304
        Edwardstown SA 5039
15 April 1998
        To Whom It May Concern,
        Re: J G
J G was a resident of this shelter from 7 November 1997 till 11 December, 1997. She was transferred to this facility from Western Areas Women’s Shelter where it is my understanding she also spent some weeks.
During her stay here J sought to take out a restraining order against her then partner, (named person)[111] and reactivated assault charges with Police from Sturt Domestic Violence Unit. J made several references to instances where her partner had threatened her or made attempts to physically intimidate her throughout her time at the shelter. Our records show that J also worked with staff from the Domestic Violence Outreach Service on matters associated with assault to her person.
Further, it is my understanding that J attempted to discuss issues of property settlement with her ex-partner, both in person and over the telephone, and on more than one occasion after these communications remarked that additional threats were made.
Should you wish to discuss these matters in more detail, please feel free to contact me on the above number.
Yours sincerely
(Signed)
Julie Felus
[111] I have omitted the name of the person for the purposes of this judgment.
Administrator
The plaintiff agreed that she left ‘quite a lot’ of documents at the defendant’s house when she moved out in February 2004, but denied leaving this one.[112]
[112] T327-328.

The defendant said that he then confronted the plaintiff about that and asked her to leave his home. He said the plaintiff never reimbursed him for any of the amounts she had debited to his card. He said the plaintiff denied taking the statements from his letterbox and told him that he had authorised her to do it.[183]
[183] T624–626.
The defendant agreed that between December 2001 and November 2002, the plaintiff did not live with him at Amber Road Highbury. The defendant said there were occasions when he attended her property at her invitation during the course of the year, perhaps two to three times. The defendant said that they had taken a trip to Wilpena Pound in May 2002 over several days after which he dropped her back at her premises in Coromandel Valley. He described how he had met her by chance sometime prior to that event. They had had a conversation and as a result of that conversation communications had started again by phone leading up to the trip to Wilpena Pound.[184]
[184] T633.
The two cheques dated 11 December 2000, with the handwritten endorsement ‘please pay ANZ Bank Visa’, were tendered as exhibit D13 through the defendant. The defendant said the endorsement was plainly written by the plaintiff. The application to increase his credit limit was also produced and tendered as exhibit D14, the defendant again identifying the plaintiff’s handwriting on that document.[185]
[185] T634.
The defendant was then taken to the events of 8 June 2002. The defendant said he had arranged to go on a day trip with the plaintiff to Burra that day. The defendant had previously noticed that much of his furniture was at the plaintiff’s house. As a part of that, there was a small table and chairs together with a matching antique dresser and a leather lounge suite. The antique dresser had been passed down to him by his parents, as had the table. The defendant said he said to the plaintiff that whilst he didn’t mind her looking after some of the items he would like to swap the table over for an old coffee table she had left at his house. The defendant said that at that the plaintiff got abusive and he decided to go to the toilet, whereupon the plaintiff kicked him so he turned around and grabbed her by the dressing gown, sat her down on the toilet seat and slapped her once across the cheek. He said he had to grab her to stop her from kicking him and he slapped her because of the way she was behaving and in his words, ‘was still basically attacking him’.
The defendant said that after that the plaintiff dead-locked her front door so he could not leave and called the police. He said he sat and waited for the police to come which they duly did and arrested him.[186]
[186] T638–639.
The defendant was taken through this again in some detail, and described the way the argument developed over the fact that she had his property, how she became more and more agitated then abusive and then when he walked away, went to kick him leading to the physical altercation.[187]
[187] T640–641.
The defendant gave evidence that as he was subject to a restraining order from the previous events, notwithstanding that he had been invited there by the plaintiff, he was arrested and charged and remanded in jail for three days as police bail was refused.[188]
[188] T642–643.
The defendant didn’t see his furniture again until the plaintiff returned to live with him later in the year.
The defendant said that he was charged with the 15 December 2001 and 8 June 2002 assaults and went to court. He said that his lawyer recommended he plead guilty and dispense with the matter, although he could not clearly recall what facts were put to the court, although he had a memory of the allegation of slapping.[189] The defendant agreed that on 28 August 2002 he pled guilty in relation to the two incidents.[190]
[189] T643–644.
[190] T642–643.
The defendant said that communication continued over the phone and that the plaintiff indicated that she was happy to come back but that she would have to try and convince her daughter because her daughter did not want to come back. The defendant said that he communicated with the plaintiff and forgave her for her abuse and aggression and the plaintiff apologised to him. He said he thought they still had affection for one another having done so many things in the past. He said he thought the plaintiff felt reasonably safe but needed money and was finding it hard to meet her obligations because of the high rent in the house she was in, and he supposed that with her financial circumstances and everything else she thought it through and decided to come back and live with him. He stipulated that she return his furniture.[191]
[191] T646–647.
The defendant gave evidence that during the plaintiff’s absence in 2002 he did a lot of the renovation to 47 Amber Road. He described those renovations in detail. The defendant agreed that after she returned at the end of 2002 with her daughter the plaintiff did help with a bit of the painting and helped put the friezes around the wall, doing a fairly reasonable job. He said however that that is all she did in relation to the renovations to 47 Amber Road.[192]
[192] T652–653.
The defendant did concede that the plaintiff had contributed some lead-lighting to the house. He said that was a hobby of hers and he had paid for her to go to a leadlight school to learn how to leadlight and had paid for all her materials during study and for the four panels that ended up in the house.
Overall, the defendant estimated the plaintiff spent perhaps 50 hours renovating his Amber Road premises and contributed six leadlight panels, a total of maybe 20 hours work.[193]
[193] T654–655.
The defendant said that if the plaintiff had done any tutoring in 2003 he knew nothing about that, nor did he receive any money from her. He did recall her doing some accountancy work for a ceiling fixer and plasterer in the latter part of 2003. That person would pay her by cheque and she would give them to him for deposit into the business, there being two cheques for $70 each which he banked. He said that was the only money she gave him in relation to her earnings.[194]
[194] T655–656.
The defendant was asked about the document he had signed dated 19 November 2001 indicating that the plaintiff had been responsible for the day to day running of one of his businesses for some years and that she was wholly responsible for managing his business for a period of 12 months, and referred to her in other complimentary ways. That document appears at p276 of P2. The defendant gave evidence that in fact the plaintiff typed that document and asked him to sign it as a reference for her to put before the Board of Examiners to become admitted to practice as a barrister and solicitor in South Australia.[195]
[195] T656–657.
The defendant described the driving trip he took with the plaintiff and her daughter in early 2004. He said the plaintiff wanted to visit Mareeba out of Cairns to visit her mother and sister and he agreed, despite how far it was. They therefore embarked upon the trip in his Holden Caprice and he described the course of the trip, which took at least 10 to 12 days. It included four wheel drive travel through the Daintree to Cooktown and a number of other activities including a catamaran day trip. The defendant said he paid for all accommodation, petrol, spending money and entertainment. He said the trip cost him $7,000.
The defendant said that a short time after returning from that trip the plaintiff and her daughter simply disappeared following a visit by Centrelink officers to his house. The defendant said that this was about a week after they returned from Queensland.[196]
[196] T658–663.
The defendant described what happened. He said he was working out the back in his workshop when male and female Centrelink officers approached wearing identification and asking where the plaintiff was. He asked them what it was about but they wouldn’t tell him. They just wanted to see the plaintiff. He responded that the plaintiff wasn’t there, after looking for her and not finding her. They left.
The defendant said the Centrelink officers returned the next day and approached him a second time in his workshop, this time requesting to look through the house and view the plaintiff’s accommodation. They looked around the house but on this occasion could not locate the plaintiff in the house. After the officers left the plaintiff returned to the house and he asked her ‘what the hell is going on’ and she responded ‘I’m in a lot of trouble, (my daughter) has caused a lot of trouble’, but she would not elaborate. The defendant said the plaintiff appeared scared as if she was in trouble. At that the plaintiff simply left. The defendant said he thought she had just gone down to the shops or something like that but she did not come back, taking her daughter with her. He said they simply drove away from the house in their car taking nothing with them and only returned a week later for the plaintiff to say that she was leaving and she left again taking nothing with her.
The defendant said he felt taken aback, that ‘just out of the blue she was just boom, gone, with no explanation, nothing’. The defendant said that was the last time he saw the plaintiff.[197]
[197] T665–666.
The defendant said the plaintiff left numerous documents there and while he was tidying up he located the document headed ‘Irene Women’s Shelter’.
At that stage defence counsel called upon the plaintiff to produce the original and the plaintiff’s counsel agreed they had the original of that document. It was ultimately provided and tendered as D4.
The defendant noted that a handwritten name and phone number on the document appeared to match the name of the person alleged in the document to have had a restraining order taken out against him by the plaintiff. The defendant said he made inquiries and indeed rang and spoke to that man who gave the noted name.
The defendant then gave evidence of the further family and financial arrangements that have occurred since that time, which indeed had the ring of truth. The defendant said he ceased his involvement in the Adelaide Produce Market in 2005, selling his shares at that time. Unfortunately, the defendant’s father passed away and the defendant inherited a substantial amount of money in the last few years.
Finally the defendant gave evidence about the domestic, financial and other arrangements between himself and the plaintiff. He conceded that the plaintiff did most of the domestic duties although he did cook barbecues and do some cleaning and a bit of shopping. He repeated that he would regularly give her $300 to $400 when she asked for it. He up kept the garden which was extensive. The defendant said he would give the plaintiff money for things such as hairdressing and her nails and her clothes when she asked for it over time.[198]
[198] T676–677.
The defendant concluded by saying that he still lived at 47 Amber Road Highbury and although while he did restoration and maintenance work he did not work for an income but rather lived off his investments, drawing money when needed. He indicated that when the plaintiff departed she had done a number of things such as change passwords and redirect mail that had caused significant difficulty for his business and required considerable expense to remedy.[199]
[199] T680–681.
The defendant was cross examined extensively by the plaintiff’s counsel. The defendant was taken over his evidence in some detail. It was clear that the defendant had a poor memory in relation to a number of items and admitted that his recall for dates and times was in many cases wanting. That said, the defendant was a straightforward witness who appeared to be doing his best to answer the questions frankly. He was asked in some detail about the plaintiff’s contributions to the house and to his business. He agreed that overall the plaintiff spent maybe 60 hours on painting and associated work with perhaps 25 to 30 further hours on related matters.
In relation to the overall renovation work to properties including lead lighting, he said she would have done a total of maybe a couple of hundred hours over the four year period. The defendant said a lot of the plaintiff’s time was spent studying.
In cross examination the defendant said that he found out about the plaintiff’s prostitution at a party where one of the people had had a few drinks and asked him if he knew that the plaintiff was a lady of the night. The defendant said that he queried her about it a couple of days later and then she confided in him a little of what she had done. He said that she did tell him that she had been in trouble with the law but that she had been convicted or arrested only as she was doing a study for Flinders University and that she wasn’t really a prostitute.
The defendant was taken through a number of criminal convictions that he had and I have had full regard to that. The defendant was examined in detail about his financial transactions. It may be that in relation to some of the matters his taxation obligations were not fully complied with, although in general the defendant conceded that he could not recall the detail of his taxation treatment of the matters put to him.
The defendant in cross examination agreed he had paid $108,261 legal and accounting fees in relation to this matter prior to 2011, and that since that time he had paid maybe $100,000 further in legal fees. The defendant also gave evidence that his $680,000 total inheritance is included in his schedule of current net assets that was tendered, and to which I will shortly refer. I have regard to all the cross examination of the defendant on financial matters.
The defendant was taken through the alleged assaults in minute detail and was broadly consistent with his evidence in chief.
Preliminary assessment of the defendant as a witness
In the final analysis the defendant came across as an honest witness doing his best to recall the events, although with a poor memory as to the detail of dates and times.
Police evidence
Two police officers were called by the defendant to give evidence. They were the officers who attended the plaintiff on 15 December 2001.
Brigitte Michelle Brooker was called and her witness statement dated 5 April 2002 was also tendered pursuant to the relevant provisions in the Evidence Act 1929. Although she now had no independent recollection of the events, she confirmed that the statement would have been accurate when she recorded it. In that statement she recounts how at 6.54 pm on 15 December 2001 she was tasked to a domestic violence incident at 270 Hancock Road Redwood Park. On arrival they spoke to the plaintiff’s daughter who then contacted her mother. The officer indicated that while the police waited for the plaintiff to attend the address she observed the plaintiff driving past the address two to three times but not stopping. The plaintiff then attended at the address. The plaintiff alleged that the defendant had assaulted her and appeared emotional, crying intermittently and scared and saying that she felt dizzy. Officer Brooker said that she could not see any visible injuries on the plaintiff.
A second police officer Shannon Vansoest also gave evidence. He also had no independent recollection of the events but confirmed that his statement given on 28 March 2002 would have been correct. He confirmed attending on 15 December and speaking to the plaintiff’s daughter, the result of which was that the plaintiff’s daughter contacted the plaintiff and asked her to attend and five minutes later the plaintiff drove up and arrived. Officer Vansoest could not see any visible injuries.
I have regard to the officers’ evidence in full without repeating it herein.
What is clear from the police evidence combined with the hospital records is that whilst some injury was detected on close inspection by hospital staff later that evening, none were visible upon the police examination of the plaintiff by the side of the road. Accordingly whilst there were some injuries they were not sufficient to have caused any reddening or outward manifestation until a little later in the evening when detected on close examination by medical practitioners.
In my view these observations are potentially inconsistent with the severity of the attack alleged by the plaintiff, which was that the defendant struck her head against the brick wall an unspecified number of times and struck her backhandedly across the face a number of times.
The police evidence contradicted the plaintiff’s evidence that she parked by the side of the road and waited until the police arrived.
I have regard to without repeating the other documentary evidence tendered in the case.
Assessment of the witnesses
In reaching conclusions about the witnesses I have had regard to all the evidence in the case, and to the comprehensive and helpful submissions of counsel, which for brevity I do not set out.
In the final analysis, the plaintiff was a very poor witness whose evidence entirely lacked credibility and reliability, and whose evidence should not be accepted on any issue on the balance of probabilities unless fully corroborated by independent and reliable evidence. Unfortunately, the court concludes that her evidence was not truthful, and was unreliable, as to so many issues, that it is not possible to accept her veracity or reliability generally on any issue unless fully corroborated.
It is also not possible therefore to accept on the balance of probabilities that what the plaintiff told police or any reporting medical officer was true or accurate, and their reports can only therefore be relied upon as to their objective observations of the plaintiff rather than any report or diagnosis that relies in any respect on the plaintiff truthfully or accurately reporting a history or symptoms.
The defendant was a fairly good witness, although his recall as to time, dates and some detail was plainly lacking. In the final analysis his evidence as to all the crucial areas of dispute with the plaintiff had a ring of truth that the plaintiff’s evidence plainly lacked, particularly when it was subjected to cross examination. I have had regard to the detailed cross examination of the defendant and to the matters raised and argued by the plaintiff’s counsel, however at the end of the day the court concludes that the defendant was an honest witness and that his account of relevant events is by and large reliable.
The defendant was a significantly more credible witness than the plaintiff, and accordingly, the court accepts the version of events given by the defendant, and does not accept the plaintiff’s version wherever they conflict.
The court also accepts the defendant’s evidence as to his assets and liabilities as he recounted them to the court and as provided to the expert he instructed to prepare material as to his financial situation at various times.
Financial position of the parties – the plaintiff
In light of the court’s finding as to the plaintiff’s credibility, it is not possible to be fully satisfied as to the plaintiff’s financial position at any time, as, regrettably, the court cannot accept on the balance of probabilities any of her evidence unless independently corroborated.
The plaintiff did purchase a rental investment property in 2006 for $60,000, which she sold in 2002 for $142,000, for a gross profit of some $82,000.
For three of those six years, 1998-2001, she was living with the defendant in a relationship.
After transactional costs, she then spent all of that profit on herself and her daughter during a period in 2002 when she was not in a relationship with the defendant. She repaid a $15,000 car loan to Mr McFarlane, paid her daughter’s private school fees in the sum of $27,945, and then spent the substantial remaining balance of $40,074 over the next 6 months on herself and her daughter. Only when all those funds were fully expended on herself and her daughter did she recommence living with the defendant in a relationship.

None of those funds were contributed to the defendant or expended either in the course of or in support of the relationship
Three of the six years over which the plaintiff earned that return were while the plaintiff was living with the defendant in a relationship.
There is no independent evidence as to the plaintiff’s other assets and liabilities either at the commencement or cessation of the relationship, or now, although the plaintiff did tender some bank statements which indicate insofar as those documents are concerned that the plaintiff had no other financial assets of note at the relevant times.
Financial position of the parties – the defendant
Expert reports were prepared by both parties concerning the defendant’s financial position.
An initial report dated 7 June 2011 was prepared on behalf of the plaintiff by a chartered accountant Mr Barrie Lloyd.
Mr Lloyd set out the various business entities associated with the defendant, making a range of observations about them. Mr Lloyd collated the book value of the assets he assessed at $712,403, but observed that there were a number of unanswered questions that may affect his assessment and that business activity in the hands of other family members may also need to be brought to account.[200]
[200] Tab 5 of P3.
A report dated 20 December 2011 was prepared on behalf of the defendant by a chartered accountant Mr Philip Camens.
Mr Camens accepted the criticisms and observations that Mr Lloyd had made concerning the defendant’s financial records, however said that in his view they were essentially academic.[201]
[201] Mr Camens’ report dated 20 December 2011 at [5.9], p41 of P3.
Mr Camens reported that there was on his assessment of the financial records some confusion as to the net asset position of the defendant as at 2008, however he was able to estimate his position as at 2001, and also as at 2011 the time of his report. I have regard to the totality of Mr Camens’ report.
Mr Camens concluded that in his opinion the net asset position of the defendant as at 30 June 2001 was $835,002.
Mr Camens concluded that in his opinion the net asset position of the defendant as at 30 June 2011 was $1,055,996.
Mr Lloyd provided a further report dated 29 August 2012, commenting on Mr Camens’ report. Mr Lloyd reported that the estimated summary of the defendant’s assets by Mr Camens was, in Mr Lloyd’s opinion, fair and reasonable.[202]
[202] Mr Lloyd’s report dated 29 August 2012 at [3], p119 of P3.
I have had regard to the totality of those reports. I find both witnesses were qualified to express the opinions they did, and in broad terms I accept their views, and find that the asset position of the defendant at the relevant times was as stated by Mr Camens and essentially supported by Mr Lloyd.
The defendant tendered a schedule of his current assets and liabilities as at 2015, the date of trial, and gave evidence that it reflected his present financial position.[203]
[203] D11.
Whilst I have closely considered the plaintiff’s counsel’s submissions about that document, I accept the evidence in that document as supplemented by the defendant’s evidence.
For brevity I do not set out the entire schedule, however I record that as at the date of trial the defendant’s net asset position was $1,282,778, however that included the inheritance he has received from the estate of his father between August 2012 and March 2014, totalling $680,883, hence the net asset position absent the inheritance would have been $601,895.
I note that a proportion of the liabilities incorporated into the schedule were however tax liabilities identified by Mr Camens in respect of past tax years that have not yet been paid, and the plaintiff’s counsel argued may never be. Those tax liabilities total approximately $214,292, and primarily date back to 2005. If they have not been paid in the last 10 years, there must be some possibility that they will never be paid, so if one takes out that identified tax liability, ie if you add that $214,292 back to the net asset position absent the inheritance of $601,855, the net position would be $816,147.
I also note that the defendant in evidence said that since 2011 he had paid some $100,000 in legal fees which may go some way to explain the reduction in assets since 2011. I also note that a large proportion of the assets as at 2015 are held in a share portfolio, which one might expect would be subject to market forces. The defendant also gave evidence in cross examination as to a range of expenditure since 2011, which the court accepts.
Having regard to the defendant’s evidence as to his business activity throughout the relationship, and accepting that his heart operation impeded his management of the businesses during the relevant period, and that conditions in the market garden industry were worsening due to the range of factors articulated by the defendant, I find it unlikely that the defendant’s asset position improved during the course of the relationship between 1998 and 2004.
Findings
I have regard to all counsel’s arguments and assistance without repeating them, including their helpful and comprehensive written and oral final addresses.
On the balance of probabilities I find the version of events as recounted by the defendant proven in its entirety. I do not repeat it.
I find that the plaintiff and the defendant lived together as a couple on a genuine domestic basis from November 1998 to December 2001, then resumed from November 2002 until February 2004.
During the course of the relationship, the plaintiff’s and defendant’s assets were as above described.
During the co-habitation the plaintiff did assist with some renovations to the defendant’s two properties at Amber Road and his caravan, however that assistance was moderate and the defendant did the majority of the work.
The plaintiff did the majority of the domestic duties.
When the defendant fell ill in early 2000 the plaintiff did step in for two to three months to manage the defendant’s businesses, putting in perhaps 20-30 hours a week for two to three months. After that time she provided occasional assistance in relation to accounting and debt collection.
One of the plaintiff’s primary sources of income during the years of co-habitation was Centrelink moneys she claimed to which she was not entitled, and she is not entitled I find as a matter of law and of public policy to reimbursement from the defendant of any money she unlawfully obtained and expended in the course of the relationship. Even if she was, that would not alter my final conclusion below.
In the ways articulated however, the plaintiff did contribute in a moderate way to the conservation of the defendant’s assets, and made some non-monetary contribution as well.
I have regard to the fact that the four years of co-habitation equates to perhaps 10% of the working life over which the defendant’s assets at that time were acquired. During that four years however, the defendant made a substantial contribution to the maintenance of his assets, which I find was significantly greater than the plaintiff’s, who also allocated significant time to her own legal studies, raising her daughter and managing her own rental investment property prior to its sale in 2002.
Over the course of the relationship the defendant’s assets did not increase, but likely decreased due to the factors mentioned by him in evidence.
I have regard to all the evidence in the case, including the parties’ present circumstances.
Taking a broad axe approach, in light of the totality of the evidence, and the defendant’s assets, I would assess the plaintiff’s contribution in monetary terms as perhaps $25,000 to $30,000.
During the course of the relationship the defendant however substantially contributed to the conservation of the plaintiff’s main asset, and made a range of other contributions to her.
The plaintiff’s investment property increased in value by $82,000 in the six years from 1996 to 2002, so on a pro-rata basis, possibly by about $40,000 in the course of the relationship.
The defendant contributed to the plaintiff’s ability to maintain that asset and benefit from its appreciation by allowing her to live with him rent free, and almost entirely supporting both her and her daughter. This also supported the plaintiff in her legal studies as it allowed her to be supported and study without working, and apply the full rent to the mortgage and her own personal expenses.
Apart from these general contributions, the defendant also gave the plaintiff cash whenever she asked for it, contributed numerous holidays and trips to the plaintiff and her daughter, contributed significant sums to the plaintiff’s daughter’s school fees, funded over $11,000 of dental work for the plaintiff and a number of other sums taken by the plaintiff from the defendant’s credit card without his consent.
In all I find that the plaintiff’s contributions to the defendant have been significantly exceeded by the defendant’s contributions to the plaintiff and accordingly that the plaintiff’s contributions have been fully recognised and compensated for by the defendant.
Assault
I have had regard to the totality of the evidence, including the medical evidence.
In relation to the medical evidence whilst I find that any physical symptoms actually observed by medical staff on the plaintiff were there, as the court does not accept on the balance of probabilities that the histories or complaints made by the plaintiff are established, the court does not accept the diagnoses of the doctors as to injury or ongoing complaints, as they all at least to a significant degree rely on the plaintiff’s statements to those doctors.
I find that the physical altercations between the plaintiff and the defendant occurred as described by the defendant.
In relation to the event described as happening in November 2001, the court finds that as described by the defendant the plaintiff initiated the physical contact as a result of the argument they had, assaulting the defendant, and that the defendant acted in reasonable self-defence. Accordingly that claim is not made out.
In relation to the assault of 15 December 2001, that assault is made out by the defendant’s plea of guilty, however the court finds events occurred as the defendant described them. The court finds that when after an argument the plaintiff jumped on the defendant’s back he shook her off, then grabbed her and pushed her over. I find that while she was upset and suffered temporary pain, the assault was minor and did not result in any ongoing injury, pain, discomfort or psychological condition.
I assess damages for that assault at $500.
In relation to the assault of 8 June 2002, that assault is also made out by the defendant’s plea of guilty. I find that after an argument the plaintiff kicked the defendant so he turned around and grabbed her by the dressing gown, sat her down on the toilet seat and slapped her once across the cheek. That was a more serious assault, involving grabbing her and deliberately slapping her to the face. I find that while she was upset and suffered temporary pain, the assault was minor and did not result in any ongoing injury, pain, discomfort or psychological condition.
I assess damages for that assault at $750.
In the totality of the circumstances I find there is no economic loss, and no basis whatsoever for an order of aggravated or exemplary damages.
Orders
The plaintiff’s claim under the Domestic Partners Property Act 1996 is not established.
The plaintiff’s claim for assault in relation to November 2001 is not established.
The plaintiff’s claim for assault on 15 December 2001 is established and damages of $500 are awarded.
The plaintiff’s claim for assault on 8 June 2001 is established and damages of $750 are awarded.