Germinario v Pinkerton No. DCCIV-99-28

GERMINARIO v PINKERTON
[2000] SADC 89

Judge Anderson
Civil

In these proceedings, commenced on 11 January 1999 and brought pursuant to the De Facto Relationships Act 1996 (“the Act”), the Plaintiff seeks, firstly, a declaration pursuant to Section 3 of the Act that the relationship between she and the Defendant during the period 11 April 1994 to 19 June 1998 was a de facto relationship. Secondly, she seeks an order for division of property in full and final settlement of their relationship. She seeks that the Defendant pay to her a lump sum of $160,000 and that she retain items of personalty which she currently possesses. This latter prayer was not contested in any way. The claim for a lump sum is the principal issue in these proceedings.
The Defendant’s counter claim was reduced at trial to a claim for rent for a period of 20 weeks at $220 per week. The Defendant’s entitlement in this regard was not seriously contested.
The Plaintiff and the Defendant met in May 1990 at the Adelaide Casino. At that time the Plaintiff was 32 years of age and had been employed in the State Public Service as a junior clerical officer for about 15 years. She was then living at home with her parents. Before 1990 she had twice been engaged to be married. The first, which lasted for about five years, ended when she was 24. Thereafter, she was engaged to another for about 18 months. The Plaintiff continued to live at home through this period, apart from being overseas for six months in 1986, and was living there when she met the Defendant.
At that time the Defendant was 46 years of age and married. The Plaintiff was so aware. From May 1990 their friendship developed through meetings during the working week, telephone calls and when the Defendant drove her to and from work.
In July 1990, on a short trip to Sydney, the parties commenced a sexual relationship which continued until the end of their relationship in June 1998. In Sydney at that time, the Defendant introduced the Plaintiff to his son. The Plaintiff introduced the Defendant to her parents and her family quite early in their relationship. It was not unusual, over time, for the Defendant to regularly attend the Plaintiff’s parents’ home and to attend family social events.
Their relationship remained on the basis of regular meetings during the week until 1994 when they together moved into a unit at Parkside. In the interim they had occasional weekends away. On two occasions, in September 1992 and October 1993, they spent a few days together in a unit owned by the Defendant at Joslin. Each of these interludes ended when the Defendant returned home to his wife. Even though, in relation to each, the Plaintiff said that she thought this was the beginning of the parties setting up home together “forever”, I am unable to accept that at that time hers was a realistic view of what occurred. None of the usual arrangements indicating a more permanent domestic arrangement, as occurred at Parkside in 1994, were in place at Joslin.
I accept the evidence of each party that from 1990 they were emotionally close and mutually dependent and became more so as time passed. As much is plain from the evidence of their behaviour toward each other. I accept also that the Plaintiff made it plain to the Defendant before Parkside that she wanted a permanent, open and therefore public, relationship with him. That the Plaintiff had so informed the Defendant and that he understood her position is evidenced by his letter to her of 10 December 1993 (Exhibit P5) in the following terms:
“ 10/12/93
Dear Julie,
I understand that I must either “marry” you or stay away from you. I love you too much for the latter to be possible!!
Thank you for letting me take you home last night - it gave us a little more time as I was pretty upset when we were in town. I’m sorry this has taken so long to happen and just hope that your feelings have not changed since the days we had together in October.

Bill
x
A small hug would be
nice one day soon!!!
Love Bill
Have a good time tonight.”

This letter supports the Plaintiff’s assertion that the Defendant was aware of her expectation that he would leave his wife, live with her and that they would eventually marry.
There is a conflict in the evidence as to the extent to which marriage was discussed. The Plaintiff said it was discussed from quite early on and that the Defendant took an active part in those discussions. In evidence the Defendant dissembled on this topic, as he did on many others. I reject his evidence on this topic and find that the topic of marriage was mentioned between them regularly from quite early in their relationship and also later, by the Defendant, in the presence of the Plaintiff’s family. At no time, until at least June 1997, did the Plaintiff have any reason to expect other than that she and the Defendant would ultimately marry.
The unit at Parkside was on the rent roll of the Defendant’s employer and so the tenancy agreement was in the Plaintiff’s name. It is common ground that the Defendant paid all outgoings and that the Plaintiff paid for food and like daily and weekly upkeep items and for initial set up requirements. I find that this arrangement between the parties occurred by agreement as a natural convenience as they were both employed and each expected to contribute to this new phase in their lives.
On 19 May 1994 the Defendant left the Parkside unit and returned to live with his wife. He went with her to Sydney for the wedding of his daughter. Even though he was absent from Parkside, the Defendant continued to visit and telephone the Plaintiff and sexual relations continued when he was in Adelaide.
I accept the Plaintiff’s evidence that when she told the Defendant that she also was leaving Parkside to return to her parents’ home, the Defendant implored her not to and said that he would return to her because he wanted to be with her. This he did on 8 July 1994 and the parties cohabited from that day until 19 June 1998.
The Act defines a “de facto relationship” in s3 in these terms:
“de facto relationship means the relationship between a man and a woman, who although not legally married to each other, live together on a genuine domestic basis as husband and wife;”

In my opinion, it was between these dates that there existed the genuine domestic relationship of the type there required. That is not to say that the period from May 1990 until 8 July 1994 is without relevance. Clearly, it was relevant to the basis of the day to day relationship, both domestic and personal, between the parties and has relevance to their expectations, both personal and of each other. From 8 July 1994 there was established the basis upon which their household would run, because of what had gone before. The Defendant paid the outgoings and the Plaintiff generally provided for what I might call their domestic comfort. She also brought the contents of her “glory box” for use in their home at Parkside. This household continued in existence until 19 June 1998.
These proceedings have been commenced within one year of the end of their relationship as is required by s9(3) of the Act and this Court has jurisdiction pursuant to the provision of Sections 4 and 9(2)(a) and (b) of the Act.
Section 10(1) of the Act is in these terms:
“10(1).... On an application for the division of property, the court may make orders it considers necessary to divide the property of either or both the de facto partners between them in a way that is just and equitable.”
Thus, there exists in the Court a discretion as to how it may act in relation to a just and equitable division of property. Here the Plaintiff seeks an order only for a lump sum payment pursuant to s10(2)(c) of the Act.
Section 11 of the Act sets out those matters which are for the consideration of the Court in the exercise of that discretion, in these terms:
“11(1).... In deciding whether to make an order for the division of property under this Part, and if so the terms of the order, the Court-
(a).... must consider the financial and non‑financial contributions made directly or indirectly by or on behalf of the de facto partners to-
(i)..... the acquisition, conservation or improvement of property of either or both partners; or
(ii).... the financial resources of either or both partners; and
(b).... must consider the contributions (including homemaking or parenting contributions) made by either of the de facto partners to the other partner or to children of the partners or either of them; and
(c).... must have regard to the terms of any relevant cohabitation agreement; and
(d).... may have regard to other relevant matters.
....”
Section 12 of the Act requires that, to the extent possible, matters relating to property, between the parties, be finally resolved so as to avoid further proceedings.
Section 3 defines “property” as follows:
“property of a person includes-
(a).... a prospective entitlement or benefit under a superannuation or retirement benefit scheme;
(b).... property held under a discretionary trust that could, under the terms of the trust, be vested in the person or applied for the person’s benefit;
(c).... property over which the person has a direct or indirect power of disposition and which may be used or applied for the person’s benefit;
(d).... any other valuable benefit.”
In July 1994 the parties continued to be in employment. The Plaintiff had made no significant career progress in her years in the Public Service. In October 1994 she was offered a voluntary separation package. Such an offer had been made to her on at least one other occasion in 1993. She then rejected it. Before that time her permanent position had been made redundant and she had been redeployed to several positions, none of which were to her liking. By October 1994 she was generally unhappy and discussed this further offer with the Defendant.
Her evidence is that when she discussed the offer with the Defendant he encouraged her to take it and to have some time off work with money in the bank, knowing that she could likely get part time work when and if she wanted it in the future. She said that the Defendant said he would care for her if she accepted the offer.
Again, on this topic the Defendant dissembled. He was non committal in his evidence, seeking to give the impression that at the time he had really left the decision to the Plaintiff - that he did not mind one way or the other. He rejected the suggestion that he had encouraged the Plaintiff to accept or said that he would care for her.
The Plaintiff had only ever worked in the Public Service. She understood the importance of the security of tenure of that employment. Even though she was unhappy at work I do not accept that she would have given up that security were she not encouraged in the view that she now had security of a different, but adequate, type from her relationship with the Defendant. I find that in changing her position in relation to her secure employment she accepted and believed that she could rely upon her relationship with the Defendant into the future and that the Defendant encouraged her in that regard.
The Plaintiff accepted the offer and on 23 December 1994 she was paid out the sum of $41,898.43 and ceased work. This money was paid into her Everyday Account at her bank. On 8 July 1994 this account was in credit in the sum of $26,983.57. On 23 December 1994 it was in credit in the sum of $68,084.90. In June 1998 it was in credit in the sum of $42,826.06. The Plaintiff also had another passbook savings account in mid 1994 which was then in credit to the extent of about $30,000. In mid 1998 it was in credit to the sum of about $37,000. This account was not used at all during the period of cohabitation. There is no evidence that it accumulated other than by earned interest and so it has not been adversely affected by any variation of the Plaintiff’s spending and saving habits between 1994 and 1998. Apart from personal effects and other items of a “glory box” nature which were in use at Parkside, the Plaintiff had no other assets in July 1994.
The assets which the Defendant held at that time are not relevant because both he and the Plaintiff recognised that he had yet to obtain a property settlement with his wife. These proceedings were not to commence for some years.
In April 1995 the Defendant arranged for the trustee of the William Pinkerton Family Trust, Notreknip Pty Ltd, to purchase a home unit at Glenside in which the parties then commenced to reside on the same basis as they had at Parkside. The settled cost of the unit was about $150,000. The funds for the purchase came from the sale of other property owned by the family trust. The property was unencumbered at all relevant times. The Plaintiff was impressed that the Defendant had, in effect, purchased this home for them to live in together. Nothing turns on whether she then knew who the purchaser was and certainly no inference adverse to the Defendant arises from whether the Plaintiff knew or not, notwithstanding that she had offered to contribute to the purchase price.
Even though the Plaintiff had ceased to earn in December 1994, she continued to spend on the basis of the existing arrangement between the parties. When the move to Glenside occurred, she continued to undertake the homemaking as before. There was now more to clean and a small garden needed some care. I have difficulty accepting the Plaintiff’s estimates of time spent on these tasks having seen a plan and photographs of the unit and its environs. If she spent as long as she said, then perhaps it was due to an over devotion to cleaning rather than being directly proportional to the task at hand. I accept that the Defendant did some work inside and outside the unit as required.
Her spending included, in addition to usual supermarket type expenditure, items for their mutual comfort at home and some clothes for the Defendant. I accept that from time to time he made some small purchases and offered her money, but generally, expenditure of this type came from the funds in her Everyday Account.
The Plaintiff was of some assistance to the Defendant in his office on a few occasions and she supported him on social and business occasions, both inside and outside the home. Except that the relationship took her into a social world with which she was previously unfamiliar, I am not of the view that any of this activity was outside what was seen by each of them to be normal support for each other within their relationship.
The relationship continued on this basis until June 1997 when the Defendant produced to the Plaintiff a cohabitation agreement drawn pursuant to the Act, which had come into effect in 1996.
The Plaintiff refused to sign the agreement. She said that she had not been consulted in advance and was distressed by its production. I accept her evidence in preference to the Defendant’s evidence as to the circumstances surrounding the presentation to the Plaintiff of this document (Exhibit P9). Thereafter, the parties continued their relationship.
Their relationship deteriorated at least from May 1998. The Plaintiff learned of the Defendant’s relationship with another woman and she and the Defendant separated on 19 June 1998 when he took his possessions and said he was going to live with that person. This about coincided with the finalisation of the Defendant’s property dispute with his wife in the Family Court. A deed settling their arrangements was executed on 11 June 1998.
Thereafter, the Plaintiff remained in the unit. She rejected a quite generous offer from the Defendant for her to purchase it. She vacated it on 31 March 1999. Rent is sought for a period from October 1998 and no issue exists as to the rate.
Throughout their relationship, the Plaintiff had no direct interest in the Defendant’s business. She knew he was involved in real estate and occasionally she helped out with typing in his office. He knew of her financial position as he had arranged for her taxation affairs to be taken over by his accountant and he was aware of the severance payment in December 1994. The Plaintiff made no direct financial contribution to the Defendant’s assets
The Defendant made no direct or indirect contribution to the Plaintiff’s asset base in the period of their cohabitation. The Plaintiff made contributions to the conservation and improvement of the Glenside unit by attending to its domestic type maintenance. By the nature of their domestic arrangements, I find that the Plaintiff made a slightly greater such contribution than the Defendant, acknowledging, as I have, that he did some work at the unit.
The Plaintiff did not in any real way contribute to the strength of the assets of the various companies which are involved in the Defendant’s business. There is no evidence to indicate that the value of these companies’ assets has varied over the relevant period for any reason other than as a consequence of usual business activity.
The figures from the Plaintiff’s Everyday Account show that it was about $25,000 less in June 1998 than in December 1994. These funds were expended in the normal course of the relationship. When she recommenced part time work on a regular basis in April 1996 there was no change to the Plaintiff’s spending pattern. It is obvious, of course, that some of this expenditure was for her benefit and is expenditure of the type which she would have made in any event, irrespective of her domestic circumstances. Thus, to an extent which is not capable of precise calculation, her financial resources in June 1998 were not as they would have been by virtue of that portion of her expenditure which related to the Defendant and the unit and their life together. Using a broad‑brush and having regard to her previous lifestyle when she lived with her parents, and how that changed when she was with the Defendant, I assess that she would have had $15,000 more in that account had she not been in a relationship with him since July 1994.
The evidence also supports the inference that, because of the Plaintiff’s expenditure at home, the Defendant was able to place more money with his personal superannuation fund than otherwise would be so. The Defendant valued his superannuation at about $143,000 when he filed a certain statement in the Family Court dated August 1996. At trial he said it was now valued at about $300,000. Thus, it is apparent that, over the period of cohabitation, the value of the Defendant’s superannuation increased beyond the value of any windfall component of about $50,000 to which reference was made in evidence. Thus, the Plaintiff has thereby indirectly contributed to the acquisition of property by the Defendant. It is not possible to assess this contribution in any precise way from the evidence.
At trial, the Plaintiff’s assets were her bank accounts and a motor vehicle which she bought after June 1998.
A relevant consideration pursuant to s11(1)(a)(ii) of the Act is the financial resources of the parties. I have already identified the financial resources of the Plaintiff at the time of cohabitation, when she was paid her severance package and in July 1998 when the relationship ceased.
I turn to the evidence of the Defendant’s assets as they are measured by his shareholdings or related interest in Morad Investments Pty Ltd (“Morad”), Ernest Saunders & Company Pty Ltd (“ESCO”), K & D Holdings, Ernest Saunders (Real Estate) Pty Ltd (“ESRE”) and Notreknip Pty Ltd as trustee of the W S Pinkerton Family Trust (“WSPFT”).
This evidence was given by the chartered accountants, Mr Morris for the Plaintiff and Mr Kennedy for the Defendant. I accept that they are experts in this field. The principles upon which such shareholdings may be valued are identified in their reports and are not contested. At issue is which valuation method is to be used.
At the conclusion of his evidence, Mr Morris accepted that the valuation made by Mr Kennedy, who alone had access to current figures of ESRE, which is wholly owned by two companies, one of which is Notreknip Pty Ltd, was correct. That interest of Notreknip is valued at $29,133 and is an interest held on behalf of the WSPFT. When taken with the agreed value of the Glenside unit, which is held by the trustee and to which the Defendant is beneficially entitled, and is therefore his property within the terms of the definition in the Act, I find the value of the WSPFT to be $59,817.

The Defendant’s financial resources are otherwise mostly contained in his shareholding in two private companies. In Morad he holds 18.1% of the issued shares. There are four other shareholders. The largest holding is 28.6% of the issued shares. Agreement between no less that four shareholders is necessary to achieve 75% of the shareholding. This percentage is necessary to resolve to put a company into liquidation. The principal activities of this company are investment in real estate and the lending of monies on the security of mortgages.
ESCO has six individual shareholders. The Defendant holds 22.1% of the issued shares. The largest shareholding is 26.6% of the issued shares. No less than four shareholders are required to achieve 75% of shareholding. The principal activities of this company are similar to those of Morad.
The shareholdings are common and there is an additional shareholder, Mr Mudge, in ESCO. The evidence shows that Mr Mudge and Mrs Mudge live in the United Kingdom. The Defendant said that he has met Mrs Mudge once and Mr Mudge not at all.
The Defendant is the principal operating officer of ESRE which secures income as commission from each of these companies and from K & D Holdings Pty Ltd (which company is wholly owned by ESCO).
The Defendant is one of two directors of each company. The other is another employee of ESRE and shareholder in Morad and ESCO.
The value of the Defendant’s minority holdings in Morad and ESCO was much contested. Each company has, for many years, paid what I might describe as a broadly consistent dividend well within its financial resources.
Each expert accepted that, as the Defendant’s holdings in Morad and ESCO were minority, it would be usual to value his shareholding on the basis of the capitalisation of future maintainable dividends. On this basis there is difference in their calculations due only to Mr Kennedy having access to the 1999 figures.
Mr Kennedy did not go further than this calculation because of the position in which the Defendant found himself as a minority shareholder. He proceeded on the basis that there was no reasonable expectation of the Defendant unlocking the real value of the share capital of either company in the short term. He said that because of the nature of the holdings it was unrealistic, in a commercial sense, to go further in terms of valuation.
Mr Morris was not so constrained. He expressed the opinion that the real value of the Defendant’s shareholding should be reached by calculating the net asset backing of his shareholdings. Having done so he then fixed upon an arbitrary deduction of 25% to reflect the reality of the Defendant’s position as a minority shareholder as perceived by a willing but not anxious purchaser of such a minority holding from a willing but not anxious vendor.
Mr Heywood-Smith of counsel for the Plaintiff submitted that the reality was that the Defendant had it in his hands to open up the real value of these respective shareholdings and, therefore, the significantly larger value placed upon the Defendant’s holdings by Mr Morris was the correct method by which to determine this aspect of the Defendant’s financial resources.
True it is that the Defendant has the day to day management of each company. He is a director of each and so is in a position to influence the fixing of dividends as he is the ongoing conduct of the businesses.
This active management, together with the advanced age of his co‑director and their combined shareholdings (which in each instances does not aggregate 50% of the issued shares), was the basis for Mr Morris, and so Mr Heywood‑Smith, to proceed to conclude that the Defendant could, in some way, extend sufficient influence upon a sufficient shareholding so as to enable, in relation to Morad and ESCO, the realising of assets and a distribution of the real value of those assets to shareholders.
In the case of Morad, such a course would value the Defendant’s interest, after making a necessary adjustment to reflect his obligation to his former wife, at about $405,000. A similar approach to the valuation of the Defendant’s interest in ESCO values the Defendant’s interest at about $623,000.
It is this approach to the valuation of the Defendant’s minority interest in these companies which is the basis upon which the Plaintiff asserts that the total value of the Defendant’s estate is in the region of $1.6m. This results from the addition to these sums of the present value of the Defendant’s other assets, the value of which is not substantially disputed for present purposes.
Of course, whether or not the Defendant is likely to be able to exercise the degree of influence upon his fellow director and shareholders so as to achieve the scenario which underpins the Plaintiff’s valuation is a question of fact to be determined upon the evidence. Mr Morris recognised this to be so in his report.
In my opinion, there is no evidence which justifies a finding that it is more likely than not that the Defendant will be able to achieve the value of his shareholdings as it is calculated by the Plaintiff.
Notwithstanding that all shares are held by somewhat related parties, there is no evidence that they are in any way close or that this proposed course is a topic which has been of interest to any of them in the past, or has even been raised between them. Indeed, the evidence discloses that the smallest shareholder in ESCO is not known to the Defendant, other than by name and that the second smallest is aged about 90 years, lives in the United Kingdom and has met the Defendant only once in the many years during which he has had the daily running of the business. That shareholder is the largest shareholder of Morad and alone is able to defeat a special resolution as she holds 28.6% of the shares. The evidence does not show other than a casual relationship with the remaining shareholders, except for his co‑director, where the evidence is that they see each other regularly during the working week. Similarly, there is no evidence that share value release of the type contended for by the Plaintiff has ever been discussed between the directors.
This is not a case like Sapir v Sapir (No 2) (1989-1990) 13 Fam LR 362 where, even though a minority share interest was involved, there was a direct path to the realisation of value as such holding was only subservient to parents and not to persons who are, in reality, strangers.
The value of the Defendant’s shareholdings must be made upon a “realistic” basis: Ramsay v Ramsay (1997) FLC 92-742 (and the cases referred to therein).
Such an approach in this case, where there is no possibility of releasing value in the absence of almost unanimous shareholder approval and where there is no evidence of such a topic ever having been raised means, in my view, that it is more realistic to value the future maintainable dividends than to adopt any other method of valuation.
It is accepted that the calculations made by Mr Kennedy and which incorporate the 1999 tax figures are more current. There is some difference between the accountants as to the capitalisation rate. There is no issue upon the evidence that the present dividends for each company are not maintainable.
This stream of income is to be capitalised at an appropriate rate of return in order to calculate present value. Because of the nature of the holding an investor would, in my opinion, seek a return on funds invested of not less than 10%. I therefore prefer the approach of Mr Kennedy as to the method of valuation and his calculation of the value of the Defendant’s shareholding in all the related corporate entities. It follows that I find that the value of the Defendant’s interest in all of the corporate entities, including his family trust, is $330,286.
The value of the Defendant’s assets at trial is:
Real Estate  $ 130,000.00
                  Cash  $    2,000.00
                  Life assurance  $ 24,000.00
                  Shares (public companies)  $ 24,000.00
                  Shares (private companies)  $ 330,000.00
                  Superannuation ($300,000-$143,000)                   $ 157,000.00
                  Motor vehicle  $ 15,000.00
                  Personal property  $    4,000.00
$ 686,000.00
These matters relating to the property, financial resources and contributions of the parties relevant to s11(1)(a) and (b) of the Act. Section 11(1)(c) is not relevant in this action. Section 11(1)(d) extends the matters which may be considered.
I do not agree with the submission of Mr Howard of counsel for the Defendant that sub‑section (d) is to be read “ejusdem generis” with what has gone before in the section. In my view, there is no “genus” of the type to be found in s75(2) of the Family Law Act 1975 where sub‑section (o) thereof has been limited to the consideration “of facts or circumstances of a broadly financial nature”: In the marriage of Soblusky (1976-77) 2 FLR 81 @ 112.
Such a conclusion does not mean that the conduct of a party must necessarily become a relevant matter. There is nothing in the Act, or in what preceded it in Parliament, which in any way indicates an intention to turn back the matrimonial causes clock to embrace such a result. However, here it is not the Plaintiff’s case that fault is relevant, but rather that what is relevant is the expectation which the Plaintiff had of the Defendant and her reliance upon that.
As I have said, there is no doubt that the Defendant knew before he returned to Parkside in July 1994 that the Plaintiff expected that they would share an open and public relationship. I have found that the topic of marriage had been discussed prior to this time and was discussed during the relationship on many occasions.
Thus, the Plaintiff had an expectation upon which she relied that she and the Defendant would marry. She recognised that it would not occur until the Defendant was free from his existing marriage. That she did not raise the topic of the timing of the divorce proceedings is nothing to the point. I accept that, at least until the draft cohabitation agreement was produced in June 1997, she had no reason for doubt as to the basis of the relationship and what the future held.
Not only did the Defendant allow the Plaintiff to rely on the future of their relationship in this way, he also did so by encouraging the Plaintiff to accept the offered severance package in December 1994. That she did so is a relevant matter for, as it turns out, she has acted to her disadvantage, even though she now has, effectively, full time employment and, importantly, has contemporary employment experience. Her situation presently is far less serious than had she remained unemployed since December 1994. Thus, the extent to which she has been disadvantaged has been lessened because of her continuing presence in the work force.
A further relevant matter contended for by the Plaintiff was the length of the relationship from 1990 and how it had an emotional basis which strengthened as it progressed. I agree.
It is also relevant that this relationship, from which the Plaintiff expected marriage, occurred from when she was 32 years of age and that cohabitation occurred from when she was 36 years of age. The Plaintiff has, because of what she expected from the Defendant, been unable to direct her life in such a direction with any other person over this time. It is realistic to acknowledge that because of her expectation of the Defendant, she has lost this opportunity. Perhaps such a loss is of lesser significance than if it had occurred from when she was from 25 to 35 years of age, but it remains of significance.
Section 10 of the Act requires that the discretion therein contained to make orders considered necessary be exercised in a just and equitable way.
The Plaintiff is undoubtedly financially less well off than if she had not commenced living with the Defendant at Parkside. Assessed broadly, she has spent more than she otherwise would have and has saved less. She is without tenured employment. In her favour also are the other relevant factors to which I have referred.
What is a relevant consideration to an order based upon the expression “just and equitable” has recently been the topic of curial debate. This debate commenced in New South Wales, but is not helpful to South Australia because the New South Wales’ legislation does not have any equivalent to s11(1)(d) of the Act. It has now been held in New South Wales in Evans v Marmont (1997) 21 Fam LR 760, that reliance and expectation interests are not matters relevant to the making of an order pursuant to s20 of the De Facto Relationships Act 1984 (NSW). That section provides:
“20(1)...... On an application by a de facto partner for an order under this Part to adjust interests with respect to the property of the de facto partners or either of them, a court may make such order adjusting the interests of the partners in the property as to it seems just and equitable having regard to:
(a).... the financial and non-financial contributions made directly or indirectly by or on behalf of the de facto partners to the acquisition, conservation or improvement of any of the property of the partners or either of them or to the financial resources of the partners or either of them, and
(b).... the contributions, including any contributions made in the capacity of homemaker or parent, made by either of the de facto partners to the welfare of the other de facto partner or the welfare of the family constituted by the partners and one or more of the following, namely:
(i)..... a child of the partners,
(ii)a child accepted by the partners or either of them into the household of the partners, whether or not the child is a child of either of the partners.”
No doubt, were sub‑section (d) not included in s11 of the Act, then the interpretation of ss(a)(i) and (ii) may well be circumscribed as in Evans even though it was held there that other matters, as are relied on here, may be relevant when regard is had to the question: what is just and equitable having regard to the Plaintiff’s contribution (in a financial sense)? Recent amendments in New South Wales do not seem to have changed this narrow approach.
The Domestic Relationships Act 1994 (ACT) is much broader than its New South Wales counterpart. Section 15 is in these terms:
“The power to make or to refuse to make an order is discretionary. The matters relevant to the exercise of the discretion are set out in ss15(1)(a) to 15(1)(e) in the following terms:
(a)     the nature and duration of the relationship;
(b).... the financial or non‑financial contributions made directly or indirectly by or on behalf of either or both of the parties to the acquisition, conservation or improvement of any of the property or financial resources of either or both of them;
(c)     the contributions (including any in the capacity of home‑maker or partner) made by either of the parties to the welfare of the other or any child of the parties;
(d).... the matters referred to in subsection 19(2), as far as they are relevant; and
(e)     such other matters, if any, as the court considers relevant.
The matters referred to in 19(2) of the Act which are relevant under s15(1)(d) are:
(a)     the income, property and financial resources of each party;
(b).... the physical and mental capacity of each party for appropriate gainful employment;
(c)     the financial needs and obligations of each party;
(d)     the responsibilities of either party to support any other persons;
        ...
(f)..... any payments made to the applicant, pursuant to an order of a court or otherwise, in respect of the maintenance of a child or children.”
Thus, the ACT legislation is more akin to the Act in South Australia. In Ferris v Winslade (1997) 22 Fam LR 725 Cooper J regarded the expectations of the parties when they made their contribution as relevant. However, he took the view that the contents of s19(2) were essentially of a fiscal nature and so were in some way akin to s79(2)(o) of the Family Law Act. In so doing he referred to “the real impact in money terms of those matters on each of the parties ...” (para 34) as the issue critical to a proper consideration of the exercise of the discretion contained in s15.
That the ACT legislation places so much weight upon financial matters is apparent from the Parliamentary papers referred to by Cooper J. It is apparent that he took the view that the provisions of s15(1)(d) required an approach similar to that taken pursuant to the Family Law Act. He said:
“[35] The exercise of the power under s15 “ultimately requires the court to select a round figure or percentage as being the just and equitable translation into money terms of the wide and general considerations which [s15(1)(d)] requires the court to take into account”: In the Marriage of Collins (1990) 14 Fam LR 563 at 565-72; FLC 92-149 at 78,043-9.”
There is no suggestion in the South Australian legislation that the relevant considerations should be so limited by reference to financial considerations. There is no doubt that contributions of the type referred to in sub‑section (a) and (b) of s11(1) are both financial and non‑financial.
I am unable to see in the Act any basis for denying that a party may make use of matters of reliance and expectation where they have left their circumstances at large by not entering into a cohabitation agreement. It is extremely difficult to envisage a form of words more broad than those in sub‑section (d).
Thus, whilst it may be correct to describe the nature of an exercise of the just and equitable discretion as “holistic” (Ferris para 33) there is no basis in South Australia to exclude from such a consideration those matters upon which a party can show that he or she relied vis-a-vis his or her partner or that he or she may have had an expectation from what was said or from the manner in which the relationship was carried forward.
Were this matter to turn on a financial consideration of what is just and equitable solely, then the Plaintiff would not receive any recognition for what she has lost in consequence of being in the relationship, other than some relatively modest financial adjustment.
Her reliance upon the Defendant to be with her into the future, her expectation that he would care for her and eventually marry her are matters relevant to what justice and equity require in this matter. In a similar way, the length of the relationship is also relevant. Knowing, and having known for some years what the Plaintiff expected of him, the Defendant entered into the de facto relationship. As he knew of the Plaintiff’s feelings over this time, it is not fair to sever this period from the period of cohabitation for present purposes. Similarly, it would not be just and equitable to ignore that the Plaintiff altered her position with her long term employer by giving up her security in the expectation of long term security, including marriage, with the Defendant and that he so knew. It is also relevant that this period was important in the Plaintiff’s life in terms of the forming of a long term relationship.
A consideration of the respective financial resources of the parties, as I have found them to be, shows a significant bias to the Defendant. An order for the division of property which is just and equitable does not facilitate of an arbitrary approach. Rather, all of these matters, required and discretionary, are to be considered in arriving at an adjustment which, whilst perhaps “holistic” within these parameters, is, in essence, just and fair.
Whilst there is an initial financial entitlement as I have described in favour of the Plaintiff, the other relevant matters are indicative of a further, quite substantial adjustment in her favour, having regard to the parties’ respective resources. Of necessity, this requires a broad axe approach having proper regard to all relevant and required matters.
In fixing a lump sum as required in s10(2)(c) of the Act, I have allowed for the Defendant’s entitlement to rent for the Plaintiff’s occupation of the Glenside unit. I decline to offset it against the Defendant’s use of the Plaintiff’s interest for the period June 1998 to trial.

On the claim, I order that the Defendant pay to the Plaintiff a lump sum fixed at $75,000. There will be no order on the counterclaim.
I shall hear counsel as to any further necessary orders.

[2000] SADC 89

13 July 2000