Gleeson v Hammerton - [2004] SADC 133

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
GLEESON v HAMMERTON
Judgment of His Honour Judge Kitchen
30 September 2004
FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS
Application for division of property - 12 year relationship - after 4 years plaintiff resigned from her employment in marketing - child of relationship - plaintiff in fulltime role as homemaker and parent - disparate financial contributions by plaintiff and defendant (a medical practitioner) - plaintiff effectively not able to resume or re-enter upon career as marketer - child requiring on-going support of plaintiff - age of plaintiff, absence from workforce and hand disability affect her opportunity to successfully compete for available employment - order that defendant pay lump sum of $200,000 to plaintiff.
De Facto Relationships Act 1996; Limitations of Actions Act 1936; Family Law Act 1975; De Factro Relationships Act 1984 (NSW), referred to.
Briginshaw v Briginshaw (1938) 60 CLR 337, applied.
Arnold v Dalton (2002) 224 LSJS 235, discussed.
Harris v McIntosh (2001) 3 NZLR 721; Pomeroy v Thwaites Witham Pty Ltd (2001) 79 SASR 489; Love v Chidley (2002) 219 LSJS 287; In the Marriage of Horsley (1991) 103 FLR 186; Evans v Marmont (1997) 21 FLR 760; In the Marriage of Kennon (1997) 22 FLR 1, considered.

GLEESON v HAMMERTON
[2004] SADC 133

In these proceedings the plaintiff, by her Statement of Claim filed on 16November 2001, sought an order pursuant to Section 10(1) of the De Facto Relationships Act 1996 (the Act) for a division of property. The plaintiff also sought, pursuant to Section 9(3) of the Act, an extension of the time within which to make the application for that order and, further, sought an extension of time pursuant to Section 48 of the Limitations of Actions Act 1936 within which to claim damages from the defendant for an alleged assault upon her by the defendant.
As to her application for division of property the plaintiff claimed that “In the absence of full particulars as to the value of the assets of the relationship the plaintiff nominates that the defendant do pay to her the sum of $500,000.”
The defendant filed a defence and counterclaim on 21 January 2002. By his defence, the defendant put in issue some of the plaintiff’s allegations made in the Statement of Claim but, in particular, he opposed the plaintiff’s application for an extension of time pursuant to Section 9(3) of the Act, and opposed the application by the plaintiff for an extension of time concerning the alleged assault by the defendant upon the plaintiff.
By his counterclaim the defendant sought an order:
·that a house property at Hill Street, North Adelaide purchased by the parties in their joint names in February 1991 “be sold and the nett proceeds of sale be divided between the parties in proportion to their relative contributions”
·that the plaintiff forthwith deliver up to the defendant all personal belongings of the defendant retained by the plaintiff and further that the parties divide equally (by value) the joint contents (sic) of the parties.
When the action was called on for trial, the defendant consented to an order, pursuant to Section 9(3) of the Act, that the time within which the plaintiff commence proceedings for a division of property pursuant to the Act be extended into 16 November 2001, and an order was made accordingly. The court was also informed that the Hill Street property had been sold on 16 August 2002 and the net proceeds of sale amounting to $528,382, (after, inter alia, the discharge of mortgages registered on the title to the property) had been paid as to one half thereof to the plaintiff and the balance into an interest bearing account in the defendant’s name to await the determination of these proceedings.
Section 10 of the Act provides that “the court may make orders it considers necessary to divide the property of either or both of the de facto partners between them in a way that is fair and equitable” taking into account the matters which the court is required to consider by Section 11 of the Act. Section 11 and Section 12 of the Act provide:
“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.
(2)   If a relevant cohabitation agreement –
(a)    is a certificated agreement; and
(b)provides for the exclusion of the court’s power to set aside or vary the agreement,
an order for the division of property under this Part must be consistent with the terms of the agreement.
12.    In proceedings under this Part, the court must (as far as practicable) finally resolve questions about the division of property between the de facto partners and avoid further proceedings between them.”
There is no relevant cohabitation agreement in this case.
The plaintiff was born on 16 June 1957 in Adelaide. After completing her schooling at 16 years of age, the plaintiff enrolled at a business college and then entered the workforce as a secretary employed in a succession of temporary, but full-time, positions, until at age 21 years she obtained employment with a supermarket chain where her duties were merchandising, store lay-outs and assisting with the opening of new stores. In addition to that latter position the plaintiff, beginning in 1977, worked part-time for a radio “breakfast” programme as an on-air hostess.
The plaintiff married an assistant winemaker in 1978. During the marriage, which ended four years later, the plaintiff continued to work for the supermarket chain and, as I understand her evidence, her part-time work with the radio breakfast programme also continued. After her marriage ended the plaintiff obtained full-time work as a receptionist/secretary with an auction house where she remained for three or four years before taking a full-time position as personal secretary to the principal of a building company, which she combined with part-time employment at night doing research work for a radio station; in about 1985 that part-time work was replaced by other part-time work selling “air-time” advertising space, for an Adelaide television station, which progressed to the plaintiff presenting her client’s commercials on television which then led to her taking a part-time position as an on-air presenter in a segment of a programme broadcast at night by the television station. In the plaintiff’s part-time work she developed a working relationship with a company, Communications and Entertainment Limited (CEL), promoting its videos and other material for newly released films, which resulted in her accepting in 1985 a full-time position with CEL at a salary of about $27,000 per annum, in addition to which CEL provided a company car to her whereupon the plaintiff sold for about $5,500 a car she owned. In 1985, the plaintiff injured her neck in a motor vehicle accident. She recovered $30,000 by way of compensation in late 1986 which she invested in the Co-operative Building Society where she had deposited the proceeds of the sale of her car.
In about January 1986 the plaintiff first met the defendant as his patient – the defendant was (and still is) in practice as an ophthalmologist. The defendant was married but had separated from his then wife. In May 1986, the defendant went to live with the plaintiff at a unit she was renting in Glenelg and they cohabitated there, and later in North Adelaide, as husband and wife until June 1998 when they separated. There is a child of the relationship, Thomas, who was born on 21 April 1991.
At the commencement of her relationship with the defendant in May 1986 the plaintiff’s assets comprised furniture and house-hold effects in the unit she rented, the proceeds of the sale of her car and the later realised sum of $30,000 she received as compensation for her personal injuries in the motor vehicle accident.
The defendant was born in England on 26 December 1954. He migrated to Adelaide with his parents when he was in third year at primary school. In 1978 he graduated MBBS from the University of Adelaide. After about two years of pre-vocational training as an intern and a resident at the Royal Adelaide Hospital and the Children’s Hospital he embarked upon training in ophthalmology which he completed in 1983. The defendant had married in 1980 and his then wife accompanied him to England in 1983 where he pursued post-graduate training until the end of 1984. Returning to Adelaide he worked as a locum tenens in the ophthalmology practice to which he was subsequently admitted as a partner in 1985 at a cost to him of $45,000 (paid as to $15,000 by way of an initial payment and the balance by equal monthly payments over three years, interest free) thereafter combining that with public hospital work, in his specialty, at the Women’s and Children’s Hospital.
The defendant separated from his then wife at about the time he and the plaintiff first met in January 1986. He agreed that he went to live with the plaintiff in her rented Glenelg unit in May 1986 and thereafter they lived together, there and elsewhere, as husband and wife until about June 1998.
The defendant’s assets at the commencement of cohabitation with the plaintiff comprised a motor car, his interest in the assets of the ophthalmology practice, about $30,000 in cash and an interest with his then wife in a house which was subsequently sold, the defendant’s share of the proceeds from the sale of which amounted to $45,000.
I pause here to record that I am satisfied the plaintiff and the defendant were in a de facto relationship from about May 1986 to in June 1998, that is that although not legally married they lived together in that period on a genuine domestic basis as husband and wife. I am also satisfied that both of them were resident in South Australia when their respective applications pursuant to the Act were made, that they were resident here for the whole of the period of the relationship and further there is a child of the relationship.
After the defendant went to live with the plaintiff in her Glenelg unit the defendant contributed nothing toward the rent or the other costs associated with the unit until late in 1987 when it was agreed that the defendant would pay the rent and the plaintiff would pay the other outgoings.
In about January 1987 the defendant asked the plaintiff to marry him. She agreed. The plaintiff’s marriage had been dissolved but she wished to obtain an annulment; she investigated what would be necessary to seek an annulment from the Vatican but this revealed proceedings would be, as the plaintiff judged, intrusive upon her personal life, may take four or five years to obtain even if the application were successful and so she determined not to pursue that course of action. Some discussion occurred between the parties concerning plans to marry but nothing concrete transpired. In the years subsequent to 1987, other plans of greater or less specificity were made from time to time to marry but no marriage occurred. In these reasons I will refer to only some of the several occasions some plans were made for the parties to marry.
The defendant’s evidence is that he found difficulty in making arrangements for the kind of wedding, and the trappings of it, that he perceived the plaintiff wanted. Mr Thomas Gleeson (the plaintiff’s father) said that on two occasions, the last at about the time the parties separated, the defendant told him he did not know why he and the plaintiff had not married. In my view it is apparent that for most of the period the parties cohabited, the plaintiff wished, and expressed her desire, to marry but the defendant did not bring that about.
In 1987 the plaintiff was promoted by CEL to the position of manager for CEL in South Australia and the Northern Territory; that resulted in an increase in her salary to $38,000 per annum, with bonuses in addition, and the continuing provision of a company car. The same level of salary and other benefits continued until the plaintiff resigned from CEL in late 1990 a few months prior to the birth of her and the defendant’s child.
In the latter part of 1988 the parties moved from Glenelg to live in rented accommodation in Gover Street, North Adelaide. The arrangement between them was that the defendant paid the rent and the plaintiff paid for all other expenses – the electricity and gas accounts and also for food.
During 1988 the plaintiff in the course of her work with CEL prepared and appeared in video recordings promoting soon-to-be-released films which would later be available for purchase in a video-recording form. Exhibit P48 is an example of the plaintiff’s work which was broadcast on television.
In late 1989 the plaintiff was offered a position with CEL to work in the Sydney office of that company. It would have entailed going to live in Sydney – the plaintiff and the defendant discussed the offer. The plaintiff was excited about it - it was, she said in evidence, “An offer too good to be true, it was a dream really to get that level”. The defendant told her he would not be able to move to live and work in Sydney, because it would in effect mean he would have to start all over again, that his and the plaintiff’s relationship was more important and he wanted her to stay in Adelaide. The plaintiff declined the offer made by CEL.
The plaintiff hoped to remain in employment with CEL for seven years, to in 1992, when she would have been entitled to long service leave and that she and the defendant “would look at getting married then” (T44).
This matter of the offer made by CEL to the plaintiff occurred after the incident in 1989 in which the plaintiff alleges the defendant assaulted her and in respect of which she claimed an extension of time to bring her proceedings against the defendant for damages. I will return to that issue later in these reasons.
The partnership of which the defendant was a member had rooms in North Terrace which it occupied as the tenant of the partnership’s practice trust known as Medserve. Medserve held the rooms upon the terms of a lease which included a number of rights of renewal, aggregating 20 years if exercised by Medserve. The premises were located in a building which became part of a project for the re-development of the Myer Department store. Negotiations between the proponents of the project and Medserve resulted in Medserve, in about December 1988 agreeing to surrender the lease in consideration of the fitting out of new premises and the payment to Medserve of a substantial sum of money to which the defendant and his four partners would be entitled. The share of each of the other partners was not subject to capital gains tax, but that of the defendant, in an amount of $270,000, was. The defendant left his share in the hands of Medserve until the appointment of a new trustee, Mijon, which the defendant effectively controlled and he resorted to those funds for the purpose of purchasing, in February 1991 in the joint names of the parties the Hill Street house for the price of $450,000 which was paid as to $300,000 by the defendant, from the moneys held by Mijon in trust for him and $30,000 he contributed from his other funds, and the balance of $150,000 was borrowed from Westpac Bank upon the security of a mortgage over the title to the Hill Street house. The parties went into occupation of the house in March 1991.
The plaintiff had become pregnant to the defendant in 1990. They discussed the matter and it was agreed that the plaintiff would cease work to care for the child full-time, at least until the child was of school age when the plaintiff would “look at getting some employment” (T47), although the parties had also spoken of having further children.
The plaintiff resigned from her employment on 30 December 1990. As I have said the child, Thomas, was born on 21 April 1991.
The plaintiff’s employment had provided her with the use of a company car. The defendant informed the plaintiff he could not afford to purchase a car outright for her. The plaintiff drew $28,745 from her own funds, and the defendant provided $8,400 with the aggregate of which the plaintiff purchased a second-hand Jaguar car for $37,393 in about October 1990. The plaintiff’s evidence is that having made that purchase, her assets were approximately $10,000 remaining in her Building Society account and the furniture and household effects in the Gover Street house. She said she used the $10,000 to continue to pay the outgoings pursuant to the arrangement between her and the defendant concerning the Gover Street house, to purchase a cot and other items in anticipation of the birth of their child, new furniture for the Hill Street house and for the cost of tradesmen in respect of work carried out upon that house, until her money “ran out”. Thereafter the defendant provided all the moneys for the parties living and other expenses by, inter alia, monthly payments into the plaintiff’s bank account upon which the plaintiff drew for household, and her personal, expenditure. The monthly payments into the plaintiff’s bank account were made up of moneys, approximately $2,000 per month, from the defendant’s partnership income and the payment of $405, rising to $435 per month in September 1992, by the practice service trust made to the spouse, or partner, of each of the members of the partnership. The payments of $435 per month continued until November 2000. The plaintiff agreed that in the period from about March 1991 until the parties separated in 1998 there were never any difficulties about the defendant providing moneys for her personal expenditure or for household expenditure.
In the year 1988 the plaintiff accompanied the defendant on a six week holiday to Europe the majority of the cost of which was paid by the defendant. There were to be other journeys abroad by the parties, during the period they cohabited, often combining a holiday with the defendant’s attendance at a conference; the cost of those was also met by the defendant.
The events I have related to this point are substantially uncontroversial. There is much common ground concerning the events in the remainder of the period the parties cohabited and their relationship from time to time; where there is a dispute on substantial matters I shall endeavour to record my findings as I proceed.
I begin by observing that both the plaintiff and the defendant were defensive in their answers concerning some topics but my assessment is that neither of them, as to any matter, deliberately falsified their evidence. In my judgment each of them genuinely believed the recollection he or she advanced of what occurred or the motive, attitude or perception present in their respective minds at the relevant times.
Both parties described that upon taking possession of the Hill Street house in March 1991 they, and the plaintiff’s father, painted rooms and carried out other, what I understand to have been, minor works and cosmetic improvements to the house and garden to make it, as the defendant termed it, “liveable”. In 1993 more extensive renovations or additions were embarked upon, including the construction of a pool, laying paving, landscaping and the enclosure of a verandah. The defendant said he did not keep records of the expenditure on those works, but he estimates the cost was approximately $90,000 paid for by using a re-draw facility in relation to the loan from Westpac Bank and some of the defendant’s earnings. Those works were completed in July 1993. The plaintiff said, and it is not disputed, that she was much involved, with the defendant, in engaging tradesmen and she was at the house to assist the tradesmen with instructions when needed.

In the latter part of 1993 the parties and their son journeyed overseas for several weeks to Italy, the UK, North America and Hawaii combining a holiday with the defendant’s attendance at conferences in some of those places. Before embarking on the trip the parties had discussed getting married during the period they planned to be in the UK; the plaintiff made inquiries concerning the arrangements that could be made to marry. On arriving in the UK the parties announced to the relatives of each of them, who lived there, that they intended to marry. The plaintiff’s evidence is that the parties had decided to purchase wedding rings during a stop-over in Rome en route to the UK, but the plaintiff contracted a virus on arriving in Rome and when she had recovered sufficiently to get about “(the defendant) actually didn’t treat me very well at all once I was sick and when I mentioned about shopping at a jewellery store, he just kept walking ahead and totalled ignored me” (T73). The defendant’s evidence is that he had no memory of an arrangement to buy rings in Rome and he described an incident while they were in Rome when the plaintiff became very angry because arrangements for a proposed train journey to Innsbruck were poorly handled by a concierge; the defendant said that it was the angry outburst to which he was subjected by the plaintiff “that made me retract into my shell” (T435).
The proposed marriage in the UK did not occur. The plaintiff said that in the UK, when she asked the defendant about contacting a marriage celebrant, “he just brushed me off, he became very moody, treated me extremely badly the whole time we were there” (T74) and told her the marriage could not take place, gave her no reason for that decision but said it would be best if they were to marry when they returned to Australia. The plaintiff said she felt “very let down”. The defendant’s evidence is that there was a requirement the parties be present in the UK for ten days before the marriage could take place and “(It) would have meant we were leaving the morning after the tenth day and given that it was all going to be a rush we agreed that we wouldn’t get married there … I think we mutually agreed”.
On returning to Australia the parties set about planning to carry out work on the Hill Street house, to correct extensive salt damp, by removing large quantities of sandstone to be replaced by newly-quarried matching sandstone, renovate bathrooms, convert rooms to different uses and other substantial works. The advice given to the parties was that the works would take six weeks during which they would have to quit the house. In the event, the works occupied a great deal longer; after living with the plaintiff’s parents for about one month, they left after an incident when the defendant reprimanded Thomas which caused some unpleasantness with the plaintiff’s parents, and the parties went to live in a “granny” flat attached to the house of one of the parties’ neighbours. They were out of possession of the Hill Street house for several months in 1994 while the work upon it proceeded. Both parties were unhappy with the quality of some of the work carried out; there was correspondence with the architect in 1994 (Exhibit P16) which in subsequent years led to the parties obtaining legal advice and making complaints to the Architects Board, in the progressing of which (I accept) the plaintiff played a significant role.
The defendant’s evidence is that the works carried out to the house in 1994 cost, with associated expenses including legal costs, “easily $200,000”. He said that in June 1994 he arranged for his bank, Westpac, to provide to him an overdraft, his recollection being that the overdraft “would be used to pay business expenses so that cash flow could be freed up for work on the house and living expenses”.
The plaintiff’s evidence is that she does not recall anything being discussed concerning the financing of the renovation work “All I knew was that (the defendant) had told me that Westpac were extending the loan, as in I thought, years” (T80). Referred to Exhibit P18, a mortgage executed by the parties in June 1994, the plaintiff agreed that on the occasion she signed it she had, at the defendant’s suggestion, spoken to the solicitor who witnessed her signature.
Exhibit D93 includes a letter dated 23 May 1994, from Westpac to the parties making an offer, to be accepted by 25 June 1994, of a housing loan of $355,000 “Purpose: Refinance existing housing loan and finance additional home improvements”. I note from the same exhibit that at February 1994, the parties’ existing housing loan with Westpac had a debit balance of $222,212.
In April 1994 following discussions between the parties about questions by friends concerning the parties getting married and also the plaintiff’s desire to have another child, the plaintiff, at the suggestion of the defendant, consulted a gynaecologist. In the opinion of the medical practitioner (Dr Seman) the plaintiff was experiencing depression “(which) had its onset post-natally”; he recommended some physical investigations into the possible consequences of the plaintiff having given birth to Thomas by a caesarean procedure, and that she undergo psycho-supportive therapy and relationship counselling, in the latter of which the defendant should participate. These opinions were conveyed to the defendant in a letter Dr Seman wrote to him. The plaintiff said that the defendant read the letter, put it aside and did not discuss it with her and it was later in the day that she had an opportunity to read it. No counselling was undertaken as a consequence of the letter, but the plaintiff said the parties did have counselling with a Ms Prior “many times during the course of our relationship”, at the defendant’s suggestion, before they were to journey to Florence in October 1995.
In June 1995, the plaintiff said, at the time of the plaintiff’s birthday the parties announced their engagement to be married – the defendant had given to the plaintiff a ring a few days before in circumstances she described to have been “(He) threw it at me in the front room and said ‘this should shut you up for a while’”.
As to this alleged incident, the defendant’s evidence is that he had obtained an uncut diamond a few months before January 1995; he intended to have it set into an engagement ring, January 1995 being an anniversary of the month the plaintiff and the defendant had met – he pretended to not remember to mark the occasion deciding he would give the uncut stone to the plaintiff later in the day, with a card, and ascertain from her how she would like the stone to be set. He said the plaintiff became annoyed that he had, apparently, not remembered the anniversary and when he gave the diamond to her “she wasn’t very happy”. The defendant said that later in the year he retrieved the diamond, which the plaintiff had kept, arranged for it to be set in a ring, gave it to her on the occasion of her birthday and asked her to marry him.
This matter of the diamond, and the engagement ring, is not of central importance in itself but, as an example, it illustrates the different recollections of the parties about a number of incidents in their lives together which were canvassed in the evidence. As with much of the evidence, in my assessment neither of the parties deliberately fabricated a falsehood; in my view each of them in the main was genuinely and honestly relating their respective memories of events.
The plaintiff described that in late 1994 the parties were experiencing problems with the workers carrying out the renovations to the Hill Street house, “I was running back and forth collecting different things from Bunnings, for example, door handles that weren’t fitted properly, had to go back and buy more, it was the mess of living between two houses, back and forth and back and forth all the time and not being settled, I was just totally, totally exhausted, and I went to pick Thomas up and I collapsed” at the kindergarten (T80/81); the plaintiff was hospitalised for four days.
In July 1995 the defendant wrote to the Australian Consular Office in Rome concerning the procedures and requirements for the parties to obtain permission to be married in Florence at the time of their proposed visit to Italy in October 1995. The defendant’s letter (Exhibit P20) is dated 10 July 1994; he said the year was an error. The other documents forming part of the exhibit indicate the year as 1995. Various documents were procured to enable the marriage in Italy to occur.
The parties did journey to Italy in October 1995, a principal purpose of which was for the defendant to attend a medical conference in Europe. The plaintiff said that two weeks before the parties, with Thomas, were to journey to Europe in October 1995, she and the defendant spoke with the defendant’s accountant who told them “We both shouldn’t really go overseas because (the defendant’s) financial situation wasn’t looking good, which was the first thing I knew of the financial situation … The defendant said it was important we both went to support him in his work”. When they both left the accountant’s office, the defendant told her “I’m sorry we can’t get married now”. The plaintiff’s evidence continued:
(T.90)
Q. Did he say why you couldn’t get married at that time.
ANo, because I explained that we could not go so long, just go there, get married, go to the cranio-facial conference and come straight home.
QWhat did he say.
AHe just said ‘We can’t do it now’. I tried to get more information, and it was clear that that was my answer.
QHow did you feel about it at the time.
ADevastated.”
The plaintiff and Thomas did accompany the defendant to Europe. She said that they spent the same length of time out of the country as they had originally planned, they went to the same hotel in Florence (Villa San Michele), the defendant up-graded flight bookings to business class and bought himself a Versace suit at a cost of $2,000.
The defendant, in his evidence, confirmed the advice he and the plaintiff had been given by the accountant “to reduce spending and to be back – not have too much time away from the practice. That was largely it. Shorten the holiday a little bit so that I could be back at work fairly smartly” (T392). The defendant said that the trip was shortened, the up-grade to business class was a special arrangement which became available and the reservation at the Villa San Michele was cancelled, but when he arrived in Florence he was able to re-instate a reservation for one night. The cancellation of the hotel reservation is recorded, in Exhibit P20, to have been on 3 October 1995. The defendant agreed that the plaintiff was particularly upset that the marriage did not take place.
The plaintiff said that at the end of 1995 she asked the defendant about “the finances and that, that I was part of the relationship and that I needed to be part of it so I understood how things worked”; she said the defendant became very angry, Thomas became upset, she left the house with Thomas and both of them spent the night elsewhere. The plaintiff said this was the second occasion she had left the house during a “similar situation”, her previous absence having been for four days in about 1994.
The defendant agreed that he wrote a letter to the plaintiff headed “New Year’s Eve 1996”; he said he could not recall whether, as the plaintiff deposed, it was written on 31 December 1995. The letter (Exhibit P21A) opens: “You have every right to feel the way you do. My behaviour has been totally unacceptable and I have let you down in the worst possible way.” The defendant was taxed in cross-examination about the Florence “incident” and the letter Exhibit P21A.
(T 441-442)
"QDid you consider that you’d behaved badly in respect of the Florence incident.
AI don’t think I behaved badly, no.
QHad you behaved badly at all to Ms Gleeson.
AI think that I tended to take it upon myself to blame myself for a lot of the difficulties we had and, again, it’s really indicative of the difficulties in communication that we had. I think that Libby needed a lot of reinforcement, positive support, and so I certainly tried to take my share of responsibility, probably bolstering her and taking a bit of the responsibility off her shoulders.
QDo you have the letter Exhibit P21A.
AYes.
QMs Gleeson has given evidence that, although it says ‘New Year’s Eve 1996’, it’s 31 December 1995.
AYes; I can’t recall.
QYou see in the second sentence you say that ‘My behaviour has been totally unacceptable’.
AYes.
QWhat behaviour were you referring to there.
AWell, I think that the whole – as I’ve just said, my whole tone was to try to indicate that I’m accepting responsibility for all my behaviour that didn’t allow us to have a happy life ahead of us.”
In December 1995 the Jaguar car which the plaintiff had purchased in 1990 was sold for about $17,000 and replaced by a more recent model Jaguar. The plaintiff said she agreed to the payment of the $17,000 to the defendant so that, she understood, he might pay out a Toyota motor vehicle owned by him; she also agreed that the replacement Jaguar be registered in the defendant’s name for, as he explained to her, “tax purposes”. The defendant’s recollection is that the price of the replacement Jaguar was reduced by the proceeds of the sale of the first Jaguar, and he leased the newer vehicle in his own name; he agreed that he told the plaintiff, and her father, the vehicle would be the plaintiff’s car.
The plaintiff said that following the receipt of the letter P21A, in which the defendant wrote, inter alia, “please allow me to marry you”, she agreed she would take him back “if he would get help”; the defendant, with the plaintiff, sought psychological counselling beginning in February 1996 – the plaintiff attended on only one occasion, the defendant on five or six occasions in the period extending to February 1997.
In July 1996 the plaintiff wrote to the defendant the letter Exhibit P55. The letter is in terms that the defendant had caused the plaintiff hurt and distress in the relationship by his failure to marry the plaintiff and not understanding the importance of that to her, to the point that by the date of the letter the plaintiff was deciding whether or not the relationship should continue. There are other topics canvassed in the letter, with which it is unnecessary for me to deal; suffice to observe that the defendant, in his evidence, agreed that in 1996 the plaintiff “Was clearly troubled by the relationship”.
The defendant said that in late 1996 or early 1997 Westpac Bank communicated with him concerning the total of the borrowings obtained from the bank. He consulted his accountant and instructed him to negotiate with the bank. In connection with that matter, the house at Hill Street was valued; the defendant’s memory is that the house was valued at $590,000.
On 19 February 1997 Westpac wrote to the defendant offering a business development loan in the sum of $167,000 upon the terms and conditions set out in that letter and its attachments. It is Exhibit P23. Two of the conditions were:
· that the facility would be used wholly or predominantly for business or investment purposes by clearing in full the overdraft facility in the defendant’s name, the debit balance of which was then $84,000, cancellation of the limit of $30,000 in respect of that account, and restructuring an existing equity access facility of $82,000 in the names of the defendant and the plaintiff
· that the loan would be secured by the mortgage previously given by the parties to the bank over the Hill Street property.
The defendant’s evidence is that the account in his own name with the debit balance of $84,000 “was just continued drawings on that overdraft that I originally understood could be increased by $30,000 per year”, and the equity access facility “was just another form of lending, in terms of, again, funding lifestyle and renovations.” The defendant said he did not discuss Westpac’s letter with the plaintiff, but at some point he informed her “we” would need to re-finance, and that the bank had proposed an arrangement a requirement of which was that the plaintiff would have to take advice about it.
On 3 April 1997 Westpac addressed a letter to the plaintiff (the letter is part of Exhibit P23) as mortgagor under the mortgage dated 5 June 1994 “given in respect of money owed to the bank by the Customer – Michael Edward Hammerton”, seeking her agreement “to a variation of the arrangements which will be subject to your mortgage”, by signing the acknowledgment at the foot of the page. The letter contained a “warning”, in bold type, that the plaintiff should see her lawyer or financial adviser before signing it.
The plaintiff’s evidence is that the defendant asked her to sign the Westpac letter, she asked him what it was for and he told her “it was just for tax purposes and it would be for his business, and it was just changing things around in his practice, and to obtain the loan, he needed me to sign it, so it would be mortgaged on the house” (T108). The plaintiff stated she was very concerned, she had not been involved “in any of the meetings”, did not know “how much it was” and told the defendant she was not very happy about signing the document, to which the defendant, she said, became very angry saying “he would not do anything to me or Thomas, he would make sure we were always secure, and that it was just for tax purposes”. The plaintiff said she pointed out to the defendant that the letter stated she should obtain legal advice, and the defendant suggested she should consult the solicitor for his medical partnership, which she did, and then informed the defendant she had been advised not to sign the letter. The plaintiff said the defendant “got very angry … and told me to go back and get it signed”. In her evidence the plaintiff said she “felt under extreme stress and, just to feel safe and okay, I signed it so there would be no upset again for us”.
In his evidence the defendant said he assessed that if the proposed rearrangement with Westpac did not proceed, the house would have to be sold and after payment of the amounts he, or the parties jointly, owed to the bank there would be a surplus of only $90,000. In cross-examination the defendant said he suggested to the plaintiff she should sign the letter “because we didn’t have any other alternative but to refinance, given that we were now at the maximum of our borrowing, and the value of the house had dropped considerably and if that were not to happen then we would need to look to selling the house” (T475). He described (T476) “I was doing my utmost to stay afloat for us both. It was a point in time when I was totally run out. I was drowning. I had my nose and mouth above the water”. He agreed he was somewhat annoyed with the plaintiff concerning her seeking advice in relation to her signing the Westpac letter, but he suggested the plaintiff consult the Partnership’s solicitor. He denied he abused the plaintiff when she told him the advice to her was not to sign the letter, but said he could not recall the precise words used.
The defendant’s evidence is that the aggregate cost of the renovations to the Hill Street house in 1993 and 1994 was “some $290,000”. He said he had searched for, but not located, records or documents relating to the cost of the renovations, explaining that when he left the house on separating from the plaintiff in June 1998 he took hardly any records, and filing cabinets he later retrieved contained largely medical files, papers and journals. The defendant denied he had “inflated” the cost of the renovations to counter the plaintiff’s case that she should not be liable for one half of the business development loan, which the plaintiff alleges was used for the defendant’s business debts, including payments of tax.

Exhibit P84 is a letter dated 8 July 1994 from the architect the parties had engaged in respect of the 1994 renovations; it is addressed to both parties. The letter lists “schedules of costs for authorised work currently proceeding. These costs only form the basis for the attached consultancy fee invoice”. It allocates a sum against the stated items, concluding “current total cost $102,893”.
In her evidence the plaintiff pointed to some of the items in the architect’s letter and said the work had not been carried out. The defendant said he thought all the listed work was carried out, but also there were additional works including roofing, air conditioning, brush fencing, interior decoration (painting and curtaining) and the installation of gas fires, as well as legal costs in later pursuing a dispute with the architect.
The defendant’s evidence is that on the occasion in December 1997 when the partnership practice re-located to premises in Palmer Place, the partnership’s contribution to the cost of, as I understand, fitting out the new premises was about $85,000 which was financed “through the lease process”, and he did not resort to or utilise any part of the “business development loan” in that connection.
There is nothing in the whole of the evidence, in my opinion, to undermine or contradict the defendant’s evidence concerning the approximate cost of the renovations carried out to Hill Street, and the associated expenses, or the means by which they were financed and I see no reason to not accept his evidence.
The defendant said that in February 1998 the plaintiff “indicated” to him that she was proposing to leave the house:
(T407)
"A … I protested to start with, but given that, at that point, I thought the best thing to do, in terms of relieving the tension that was existing between Libby and me, and affecting Thomas, that I would leave the house, leaving Thomas particularly undisturbed from his usual routine and his familiar surroundings.”
The defendant took some of his clothes and went to his mother’s house in Gawler where he lived during the week, commuting to his practice rooms, and spending some weekends at the Hill Street house. After about six weeks the defendant returned to live at Hill Street; he said he was looking to reconcile with the plaintiff, but soon after the plaintiff and Thomas had visited Dr Bertram the defendant was asked to leave the house and he did.
Dr Bertram is a psychiatrist to whom Thomas was referred in 1998, by the school he was attending, for what Dr Bertram described to be treatment for Thomas’ anxiety disorder. Dr Bertram first saw Thomas in May 1998. Three reports (Exhibits P62, P63 and P64) by Dr Bertram were tendered in the plaintiff’s case, and he gave evidence.
Dr Bertram identified the tensions between the parties in their relationship, during a significant period prior to May 1998, as being the cause of the anxiety from which Dr Bertram diagnosed Thomas to be suffering; indeed Dr Bertram, as recorded in his first report, assessed Thomas to have features of post traumatic stress disorder. Thomas’ condition has fluctuated during the time he has been consulting Dr Bertram, his ailment being worse when the parties were endeavouring to resolve their dispute, in the Family Court, concerning the defendant’s access to Thomas. There have been other stressors related to facets of the parties relationship since they separated which to a lesser extent have exacerbated Thomas’ condition.
Not only has Dr Bertram frequently seen Thomas for psychiatric treatment or counselling (in the period to April 2001 it was approximately fortnightly) the defendant also consulted Dr Bertram approximately weekly between May 1998 and May 2000, the defendant’s objective, as Dr Bertram described it, being to seek assistance to resolve communication and socialising difficulties and to reduce instability and tensions between the family members. The defendant wrote to the plaintiff in July 1998 about his sessions with Dr Bertram, noting his regard for Dr Bertram’s skills; Exhibit P56.
I consider it is unnecessary to elaborate further on the matters which Dr Bertram identified to have been significant in Thomas’ history in relation to his condition from time to time, and in particular the child’s attitude to contact with the defendant. Dr Bertram assesses ( and I accept his evidence) that Thomas is an intelligent child who has matured to be capable of forming and expressing his own views about his present relationship with the defendant, whatever may have been the influence of the plaintiff in that connection in the past.
The plaintiff has custody of Thomas and the responsibility of his day to day care, which has been the case since the parties separated in June 1998.
Dr Bertram’s opinion is that until Thomas is “aged 15, 16 years” (in cross-examination he said “to age 15 roughly”) he should be given pre and post school supervision:
“(He) suffers a lot of anxiety … and he certainly wouldn’t be able to be at
home by himself as a result of his condition …” (T240).
In cross-examination Dr Bertram said he did not know for how long Thomas’ attachment to the plaintiff, and his anxiety disorder, would cause ongoing difficulties for Thomas to be left alone at home:
(T254-255)
“A … One also has to take into account the mother’s anxiety about him being at home alone as well. In other words, a child that has anxiety about being left alone always has an anxious mother who is anxious about them being home alone, and that is something which would need to be addressed over time. Of course, the older the child gets, the easier that becomes, because it starts to look socially inappropriate, for example, if a mother is anxious about their 20-year-old staying at home.”
The defendant does not dispute, or challenge, the desirability of supervision for Thomas, before and after school, by the plaintiff until he is 15 or so and that that will adversely affect whatever opportunities the plaintiff may have otherwise had for paid employment.
The plaintiff said that when the parties separated in June 1998 it was arranged that the defendant would pay $1,000 per week into the plaintiff’s cheque account; the plaintiff continued to receive, additionally, the $435 per month from the practice service trust. The plaintiff’s evidence is that his method of making the payments of $1,000 per week continued until there was a change; – she said that after about six weeks “I started to receive, spasmodically, cash” (T114) in an envelope placed in her letterbox. She denied that method of payment was at her request. The plaintiff said that some weeks the defendant did not pay any money, or paid less than $1,000, and the omitted or reduced amounts were never made up. The plaintiff pointed to Exhibit P25 as a letter from the defendant the effect of which is that he was having a break in the week of 23 August (1998) and would not be able to give the plaintiff any money in respect of that week; in the same exhibit there is a letter dated 14 April 2000 which includes a passage to similar effect in relation to the period of one week after Easter 2000. The plaintiff related an occasion when the defendant purchased tickets to take Thomas to Alice Springs for two weeks as part of a group including the defendant’s sister and brother-in-law. Thomas, the plaintiff said, was very anxious and determined he did not want to go, the plaintiff telephoned the defendant and informed him Thomas “Couldn’t go, and (the defendant) told me to take Thomas to the doctor and tell him he had diarrhoea, so he could claim the fare back, but I refused to lie to the doctor, so in return we suffered from no money while he was away” – she said no payment was made by the defendant for four weeks, and so she borrowed money from her parents.
Exhibit P26 is a note dated 11 January 1999 written by the defendant to the plaintiff:
“I have approved the payment of your fares to Queensland. I would ask that you get the local doctor from North (??) Adelaide to complete the insurance form so I can claim Thomas’ fare for Ayers Rock. I suggest you ask her to put down Diarrhoea and Vomiting or similar. You see it needs to be filled out by his usual GP. Can I have it back before you go away.”
I will return in a moment to the issue of the approximately weekly payments made by the defendant.
In cross-examination concerning Exhibit P26 there was this exchange with the defendant :
"QYou were simply advised that he wouldn’t be coming.
AYes.
QConsequent upon that, you wrote the letter which is P26.
AYes.
QYou were proposing that Ms Gleeson be a party to a falsehood.
AI was hoping that, by cooperating, I would be able to claim my air fare back and that they weren’t likely to accept any other reasons other than something simple, like an acute illness.
QBut you accept that you were proposing that Ms Gleeson put forward a falsehood to the insurer.
ANo; to the doctor, really.
QFor your benefit.
AYes.
QIsn’t it the case that, when it comes to your benefit, the truth is a dispensable commodity.
AAbsolutely not.”
I am not prepared to place on this admission a weight which should lead to the defendant’s evidence, on all matters affecting his interests, being viewed with scepticism or searchingly examined to detect possible exaggeration, understatement or, most particularly, of significance upon the issue of an alleged concealment by the defendant of assets. The defendant did not dissemble when his request to the plaintiff was characterised as a falsehood. What he proposed to the plaintiff did him no credit, but I do not consider it is illustrative of the defendant being a person whose evidence can be accepted only with caution.
The defendant’s evidence is that after the restructuring in 1997 of the loans by Westpac there was no overdraft facility with the bank. He described that in mid 1997 he assumed the responsibility, which previously in the relationship had mainly been shouldered by the plaintiff, of running the day to day finances, “and the process of giving $1,000 a week cash had actually commenced sometime in ’97 to avoid any problems having cash on hand or getting it out of the bank”(T411). The defendant identified bank account statements, commencing 30 June 1998, part of Exhibit D71, on which he had highlighted “cash cheques” most, but not all of which, are for $1,000 as being those “where my secretary would draw a cash cheque and provide the cash to me, or, indeed, on occasion, herself”. He said the cash was placed in an envelope and taken by him (or on three or four occasions by his secretary) to Hill Street where it was left in the letterbox. The defendant’s evidence is that in the period from in July 1998 to in May 2000 he paid, as he calculated, $93,285 to the plaintiff by this means.
In cross-examination there was this exchange:
"QThere is one question I want to ask you before I forget it. Looking at Exhibit D71, you will recall being shown this document just this morning.
AYes.
QAs I understand it – you correct me if I am wrong – the first entry indicates your maintenance in the period before you commenced to pay child support, and evidences, generally speaking, you say, $1,000 a week.
AThat money was provided in accordance with what we were doing before separation. I was providing $1,000 cash a week prior to separation. I left the process in place after leaving.
QAs I understand your evidence, initially, you would give Ms Gleeson a cheque for $1,000; is that right.
AI don’t recall using cheques originally, although it would have been a sensible thing to do. I think changing to cash was at Libby’s request.
QDid you instruct your counsel about that; that it was at Libby’s request that it changed to cash.
AI don’t recall.”
The plaintiff rejected the suggestion that during the latter part of 1997, and before the separation in 1998, the defendant was paying cash to her; she said that the defendant “still put money straight into my cheque account from his secretary right up until even after separation. After separation, he chose to get a cheque, get his secretary to cash it and give me the cash when he felt like giving it to me”(T280).
I note from the bank statements (part of Exhibit D71), the defendant has highlighted a cheque for $1,000 drawn on 2 July 1998 as one of those used to pay the plaintiff, although the cheque is not described as a “cash cheque”; that lends some support to the plaintiff’s evidence that some of the payments to her after separation were by cheque, not cash. However there are at least two other cheques highlighted by the defendant (under the dates 3 August 1998 and 23 February 2000 respectively) which are not annotated “cash cheques”; in my view that affects the reliability of what the defendant has highlighted in the bank statements.
The plaintiff agreed there were occasions, before the parties separated, when she was not able to draw upon a cheque deposited by the defendant to the credit of her account, except after waiting five days for it to be cleared “and so there were times when I couldn’t get any money whatsoever”(T280).
I accept the plaintiff’s evidence that she did not request payments to her to be by cash. Why it was the defendant delivered cash to the plaintiff is not clear but in my view the submission that the defendant’s statement “I think changing to cash was at Libby’s request” is to be viewed as wholly unbelievable and therefore adversely affecting his credibility, is far too strong a criticism of the defendant.
The plaintiff agreed that following separation in June 1998 until in the year 2000 the defendant, as well as paying $1,000 a week to her, was also paying other accounts, that there had been no reduction in her standard of living and she was living in a substantial house “with virtually everything paid for”.
The plaintiff said that when, after they separated, she received cash from the defendant she would put it into either her Visa account, or her cheque account with Bank SA; “It was just a habit of mine. I always went straight to the bank and put it in straight away, because I would always pay everything on my Visa card”. The plaintiff identified Exhibit P91A as a table the last three columns of which was compiled from the plaintiff’s financial statements to show the cash she received from the defendant, the date it was received and to the credit of which of her two accounts it was paid. The plaintiff’s evidence is that in the period from July 1998 to 20 June 2000 she received from the defendant a total of $35,694.15, and not the $93,285 the defendant claimed to have paid. The plaintiff said there were financial statements for four months in the case of her cheque account, and one month in the case of her Visa account, which she had not been able to find. In respect of those months, the defendant (vide Exhibit D71) asserts he paid $11,740.
The plaintiff said she first consulted a solicitor in October 1998; she agreed that on 2 August 2000 a solicitor wrote on her behalf to the defendant. The letter is Exhibit P28. In the letter it is stated “(the plaintiff’s) only source of income is the child support payments you have been paying to her, which you have unilaterally reduced from $1,000 to $800 per week”. The plaintiff agreed the letter makes no complaint of a lack of regularity in the “child support payments” the defendant had been paying.
There is a very substantial difference (of the order of $46,000) between the amount the defendant said he paid to the plaintiff in the period July 1998 to May 2000 and the amount the plaintiff said she received.
The plaintiff agreed that it was her practice to keep money in her purse to meet expenses on occasions her Visa card was not accepted; she said “I had that money from my father” and agreed that was her explanation “for there being no sign of any cash withdrawals from these accounts” (T667), these accounts, as I infer, being her cheque account and her Visa account.
Mr Thomas Gleeson, the plaintiff’s father, gave evidence. He said that commencing in September 2001 he began to record moneys he paid to, or on behalf of, the plaintiff; the record is Exhibit P29. The sum of the record is $35,134 to, as I read the exhibit, March 2003. Mr Gleeson was asked in examination whether he had advanced money to the plaintiff prior to the first date (3 September 2001) of his record Exhibit P29; he said “I just paid a few – you know, buy food and that sort of thing prior to that, yes” (T350). The plaintiff’s acceptance of her position that between June 1998 and June 2000 there was no reduction in her (as I infer earlier) standard of living, and Mr Gleeson’s evidence of what he had advanced to the plaintiff before September 2001, together with there being no complaint made by solicitors on the plaintiff’s behalf to the defendant in Exhibit P28, or earlier, concerning past payments of $1,000 per week is inconsistent with the plaintiff’s assertion that she received approximately $46,000 less than the defendant said he paid. I am not prepared to find there was a discrepancy of such a large order.
On 27 June 2000 (Exhibit P27) the defendant wrote to the plaintiff that the payments of $1,000 per week would be reduced to $800 “the other $200 can be your contribution to the mortgage”, stating that he was no longer willing to pay the plaintiff’s utility accounts, the departmental store accounts or car expenses and that he proposed to obtain legal advice. The defendant said:
“A I think at that stage I was increasingly frustrated by not having any reply from Libby, including all of these issues, seeing Thomas. I had written on numerous occasions and not got any reply.
QOn what topics.
AThe predominant one was re-establishing contact with Tom, also on the sale of the house. They were the most two. The others were an attempt to obtain some of my personal possessions from the house, and having done that, and paying what I considered a lot of money to Libby, and still paying the house mortgages and expenses, I though it was reasonable to cut that back.”
The plaintiff consulted a solicitor who wrote (Exhibit P28) to the defendant foreshadowing proceedings in the Family Court seeking an order for child support unless the defendant re-instated the previous financial arrangement, and also giving him notice that the plaintiff would make an application under the Act. In the result the defendant ceased (on legal advice) paying $800 a week to the plaintiff in September 2000 and the practice trust payment of $435 a month to the plaintiff also ceased, but in November 2000, the defendant began paying $350 a week.
In December 2000 the defendant applied to the Family Court seeking contact with Thomas, proceedings which continued until they were withdrawn by the defendant in June 2002.
The plaintiff said that in November 2000 she applied for a sole parent’s benefit, but her application was refused because the information Centrelink had was that she was receiving $33,000 a year from a trust. That issue was resolved in July 2001 and the plaintiff began to receive the benefit but until that time, and subsequently the plaintiff said, her father paid various expenses for her, or Thomas, which appear in Exhibit P29 the total of which the plaintiff repaid, principally from the proceeds of the sale of a unit at Maylands purchased by her after the sale of Hill Street.
In March 2001 the plaintiff was involved in a motor vehicle accident; her Jaguar motor car was damaged and she delivered it to a crash repairer. The car was in the defendant’s name. When the repairs had been carried out, the defendant took possession of the car and retained it until about May 2002 when the parties reached an arrangement that the Hill Street house be sold.

Concerning taking possession of the Jaguar car from the repairer the defendant said: (T427)
“It seemed that I was unable to communicate about issues with Libby, about the house and the contents, without having a bargaining tool, and so I used it really to, perhaps, promote a better – hopefully – communication to deal with the sale of the house and the contents.”
The plaintiff said that during the period that she was without the Jaguar car she borrowed one of her father’s cars, paying for the insurance and maintenance of it. She described that when it was returned to her the Jaguar car was not in a roadworthy state, “the differential had gone”, having regard to the cost of repairing which the plaintiff sold the car for $13,000 and purchased another vehicle for $15,500, the difference in price being bridged by her father trading in his Ford vehicle. The defendant in his evidence gave an explanation for the condition of the Jaguar; he said that while the car was in his possession he drove it once or twice a month, that prior to returning the car to the plaintiff he spent $600 to $700 for repairs but the mechanic, after completing those repairs, mentioned an unusual noise in the vehicle.
Settlement upon the sale of the Hill Street house was on 16 August 2002. The sale price was $952,500. The mortgage to Westpac Banking Corporation was discharged by payment of $400,493.97 and, after other payments and adjustments associated with the sale, the net proceeds of sale were $528,382 (Exhibit P38); $265,110 of that net amount (see Exhibit P69 Annexure 3) was paid to the plaintiff, with the balance being credited to an account in the defendant’s name to await the determination of these proceedings.
To ready the house for sale $3,968 was spent, for cleaning and other services or items, which, as I understand the evidence, was paid as to $1,400 by the defendant and as to the balance by the plaintiff, or on her behalf by her father.
In August 2002 the plaintiff purchased a unit at Maylands for the total price of $423,923, including various fees and adjustments; the plaintiff paid $225,313 and borrowed the balance ($198,609) from Westpac upon the security of a mortgage over the property (Exhibit P39). The plaintiff’s evidence is that the mortgage repayments were $260 per week “which was cheaper than renting a three bedroom home” (T140); she said a house of three bedrooms was necessary so that Thomas’ percussion instruments could be accommodated.
The plaintiff sold the Maylands unit in April 2003 for $450,000; after discharging the mortgage to Westpac, and payment of various fees and adjustments, the net proceeds of sale were approximately $241,000 from which the plaintiff paid $31,000 to her father to repay debts she had incurred to him. The plaintiff said she had to sell the Maylands unit “for these proceedings”. In April 2003 the plaintiff rented a three bedroom house, the rent for which is $400 per week.
The plaintiff called Mr Trevor Clark, an accountant, who from records and other material provided to him, by, or on behalf of, the plaintiff, prepared a report (Exhibit P69) which he deposed shows the receipts and expenditure, by the plaintiff in the period from August 2002 (when the Hill Street house was sold) to approximately the date of trial, to derive a figure of $80,276.55 as the sum of the plaintiff’s assets; the report includes expenditure of:
$80,000 legal and accounting
           $58,482 paid to the plaintiff’s father
           $14,377 car purchases
           $41,401 living expenses
           $193,960
In a supplementary report dated 5 November 2003 (Exhibit P66) Mr Clark revised his assessment of the plaintiff’s assets to be $101,558.12, less liabilities of $1,281.57 producing $100,276.55. The item “car purchases” was explained by the plaintiff to be the cost of the car the plaintiff most recently acquired, after an allowance for the trade-in value of the car she previously owned. The report (Exhibit P69), as I understand, does not include the value of furniture and effects; the allocation of furniture between the parties had been the subject of continuing dispute between them, but counsel informed the court that had been resolved including furniture which had been in storage for many months.(Ex D98)
The substance of Mr Clark’s report (Exhibit P69) is not substantially challenged by the defendant. However the defendant does submit that the plaintiff has been extravagant and self indulgent in the purchase of motor cars, furniture, clothing and entertainment since she obtained a proportion of the proceeds from the sale of Hill Street. Having regard to the defendant’s admission that from the time Hill Street was sold he “probably tried to spoil myself a little bit”, the defendant’s submission is much weakened. As to some of the things which each of them purchased those they have been brought to account in identifying their respective assets. In relation to the plaintiff’s other purchases; between June 2002 and September 2003 she purchased clothing, at a cost of $12,867, and food and entertainment at a cost of $12,878, a total of some $26,700. That is a substantial sum but there is insufficient evidence from which it could be found to have been extravagant and self indulgent.
It is convenient at this point to deal with the evidence concerning the defendant’s assets at trial. This was the subject of considerable evidence by Mr Clark, by Mr Craig Farrow, an accountant (called by the defendant), and questioning of the defendant.
Mr Clark prepared a report dated 29 October 2003 (Exhibit P47) the purpose of which was “to attempt to create a schedule of assets and liabilities based on materials and information provided” to Mr Clark by the defendant’s solicitors, Westpac or the defendant’s accountant.
Mr Clark determined the defendant’s estimated assets to be $809,298.34, a summary of the components of which is set out in Annexure C to the report; that annexure has a heading “Liabilities” with items for income tax, a loan in respect of a Lexus motor vehicle and provision for bad debts, against each of which is a notation “NK” (Not Known). Mr Clark prepared a further report dated 5 November 2003 (Exhibit P66) after he received additional materials, by reference to which he excluded $100,000 from the defendant’s asset (the exclusion concerned a “Billflex” account) reducing the estimated assets to $709.298.34. In his evidence, Mr Clark further reduced by $60,396 his assessment of the defendant’s net asset position (on the information made available to him) to arrive at a figure of $648,902.34.
Annexure E to Exhibit P47 graphically depicts Mr Clark’s understanding of the relationship between the partnership, of which the defendant is a member, and the “service trusts” I briefly mentioned earlier in these reasons; the partnership paid service fees to Medserve Pty Limited, the net profit from which was distributed to Medserve Trust No.2; fifty percent of that profit was allocated to M Hammerton Trust which (Mr Clark explained in his evidence) in turn distributed it, in part, to Michael E Hammerton Pty Limited and (in all but the last two years 2001 and 2002)) in part to the plaintiff; there was also a distribution to Thomas but that was only a few hundred dollars each year ($370 rising to $640). For the purpose of his assessment of the defendant’s “income” in each of the financial years ended 30 June 1992 to 30 June 2002 Mr Clarke aggregated the defendant’s share of profit from his partnership, the distribution to Michael E Hammerton Pty Limited and the distribution to the plaintiff; doing this, Mr Clarke said, would show “the total household income”.
Mr Clark’s report (Exhibit P47) includes various annexures, one of which, Annexure H sets out the defendant’s taxable income derived from both the partnership and Michael E Hammerton Pty Limited in each of the financial years 1992 to 2002 inclusive from which Mr Clark deducted what he assessed to be the defendant’s yearly expenditure ($117,168.42 per year) to arrive at a yearly “surplus”, (prior to payment of income tax), aggregating $1,252,218.38; adding to that, Mr Clark said, a “surplus” before tax in the 2003 financial year, produced $1,599,413. Mr Clark estimated the tax the defendant paid (or is liable to pay) on that figure at approximately $1 million.
In his report (Exhibit P47), Mr Clark expressed his opinion to be:
“5.1I am unable to reconcile the level of assets held by Dr Hammerton (Annexure C) to the level of income received over time.
In my opinion the level of assets should be considerably higher given the history of income (Annexure D).
5.2Given the sale of the property at Hill Street and the payout of respective loans which previously accounted for $39,540 and $20,160 in repayments I am surprised that the level of assets accumulated since the sale of Hill Street has not been higher.”
The substance of Mr Clark’s evidence, by way of an opinion upon the materials he had reviewed, is that the defendant received in the period 1992-2002 as income approximately $600,000 in excess of what Mr Clark identified to be expenditure by the defendant in each of those years to pay tax and meet living expenses. Mr Clark said he assessed the defendant’s living expenses by reference to a list (Annexure H (ii) to Exhibit P47), prepared as I understand in April 2002 and provided to him by the defendant’s solicitors, the items on which totalled $194,498.20 as the defendant’s “estimated yearly expenses”, in respect of which Mr Clark “added back” expenses “ which are tax deductible in the taxation returns of (the defendant) …”.
(T.321-322)
"Abut I’ve also added back expenses which would have been more relevant in the later years - in 2001, 2000 and 2002 – rather than in 1992. So, I’ve tried to look at a reasonable level of living expenses.
QThose are the items child support, school fees –
AASC school fee investment and legal fees of $15,000. I’ve added those back as an estimate of what I consider to be more later expenses, or expenses in the latter years, rather than those that would have been relevant in 1992, again, an arbitrary assessments, but all I was attempting to do was to see what a reasonable level of expenses would have been during an 11-year period.”
By this method, Mr Clark selected $117,168.42 as the defendant’s living expenses for each of the eleven years 1992 to 2002.
The defendant agreed that in about 1993, when the proposed marriage of the parties in London did not proceed, he considered his relationship with the plaintiff was “shaky”, he said “it was shaky throughout”, but he “absolutely denied” that at about that time he set about reducing his assets.
Exhibit D95 was identified by Mr Farrow to be a note written by the defendant; Mr Farrow said it had been found by him in files held by his partnership as the defendant’s accountant. The document is not dated, but Mr Farrow by reference to its content, particularly the reference to expenditure on an Alfa motor car, said that the year referred to in the heading “last year we spent” was 1992; he did not accept the suggestion the year was 1993/1994. I accept his evidence that from his knowledge as one of those concerned in 1992 with the preparation of the defendant’s taxation returns, the defendant had an Alfa motor car in 1992 but not in 1993/1994.
The document Exhibit D95 states the defendant’s income from all sources in (as I find) 1993 to be $186,000 the income tax on which is stated to be $85,000 from which I infer that the first figure is the defendant’s taxable income; the document states “$100,000 to live on” and proceeds to list headings of expenditure, with amounts against each heading. The expenditure is totalled to $115,613.
The document then lists expenditure for “this year” totalling $151,000 (including $85,000 for income tax) but no amount is set out against the items “Cash, Credit Cards”. Even if, as Mr Clark observed, the items “Deductibles (sic) $15,000 est.” should be viewed as an amount already accounted for (at least in part) in arriving at the taxable income of $186,000, and payment of tax is excluded, the expenditure is some $51,000 before any amount is ascribed to the “Cash, Credit Card” item which in the previous year totalled approximately $60,000.
Exhibit D93 contains a number of documents (or copies of them) emanating from Westpac. They were received into evidence without objection. From among those documents it is apparent that the debit balance of the housing loan with Westpac had increased to $222,212 by 22 February 1994; by August 1995 it was $356,000 and by August 1996 it was $373,000. That increase was part of what the bank described as the debt load “increasing each year”, debt which had moved from $422,000 to $604,000 in the period June 1995 to August 1996, exceeding by $40,000 the total facilities the bank had made available
In a letter dated 22 November 1996 to the defendant’s accountant, Westpac described the features of the “income maximiser loan” of $539,000 which could be made available by the bank as a means to consolidate the housing loan (then standing at $370,000), the equity access loan and the current overdraft loan (together standing at about $169,000) with the advantage that monthly payments would be about $500 less than the defendant was paying. The letter observes that before approving such an arrangement the bank would need to be satisfied the defendant could service the loan and pay income tax without seeking additional borrowings from the bank; it noted that if funding was required in the future for any purpose “an alternative financier must be sought”. The letter was written by the manager of the bank’s Retail Asset Management Department which both Mr Clark and Mr Farrow described to be the department concerned with “problem” accounts; Mr Clark agreed that that department was the bank’s debt collecting section.
Mr Clark’s opinion (in Exhibit P47) is that the defendant, for the income years 1992 to 1996 inclusive, had a surplus, before payment of tax, aggregating $247,000. In my view it is inconsistent with the defendant having such a surplus that he would have allowed, or suffered to occur, the position between him and Westpac reflected in the documents I have referred to. It is more probable than not as I find that at least prior to the parties separating in June 1998 little or no control was exercised by either of them in their joint, or individual, expenditure as a household.
Mr Clark said that he would have preferred to have, and he asked for, primary banking records for the period 1992 to 2002, inclusive, concerning the defendant’s three accounts, that is the home loan, the overdraft account and the equity access loan account, but he was informed that such records between 1992 and 1998 no longer existed.
The records of the Westpac bank relating to the defendant’s accounts were subpoenaed; as I understand, no records for the period 1992-1998 were produced.
As I said earlier in these reasons, the defendant’s evidence is that following separation in June 1998, he continued to pay $1,000 per week in cash to the plaintiff until 28 June 2000 when it was reduced to $800.
In February 2000 the defendant met Dr Helen Marmanidis, and “not very long after” meeting they commenced, and have continued, living together; they were married in May 2002.
Exhibit D91 includes tables compiled by Mr Farrow, from an examination of records, showing the date and amount of the defendant’s drawings from his partnership and from Medserve for the period 10 July 1998 to 28 June 2000, identifying when the amounts drawn were deposited into one of three accounts (including the Westpac home loan account) and, when not deposited to any of those accounts, allocating the drawn amount to the column headed “Other”; as to that latter column, Mr Farrow wrote in the letter accompanying the tables “We note that substantially the moneys in the “Other” column are weekly amounts of $1,000 for which we are instructed are payments to Gleeson (2000 $50,500).” – “Gleeson” refers to the plaintiff.
The total of the “Other” column is $125,500, which is approximately $32,000 more than the defendant asserts he paid as the accumulation of the “cash cheques” he highlighted in the partnership’s bank statements (Exhibit D71); in my view no reliance can be placed on the “Other” column of Exhibit D91 except that there were amounts drawn by the defendant which were not deposited to the credit of the accounts identified in D91, and as to the destination of many of which amounts the defendant was unable to say. The defendant was taxed in cross-examination concerning the amounts allocated to the “Other” column in D91 (T633 ff); his answers to questions as to the application of some of the amounts included “I really find it very difficult to remember from the top of my head that far back what those drawings would have been used for” (T638); to the suggestion he held cash and gave it to the plaintiff when it suited him, he responded “Not at all. I did the best I could at the time. I didn’t have much money at all for myself and some of those other moneys in between may not have been banked by (the plaintiff)” (T639); and to the suggestion that the plaintiff received from him in cash (in 1998 to 2000) only the amounts identified in Exhibit P91A the defendant said “I think that’s just based on the assumption she banked everything she received” (T645).
In relation to each of the financial years 1996/1997 and 1997/1998 Mr Farrow’s firm prepared for the defendant a “Cash flow budget”. It anticipated that the defendant’s total “fee income” would be $331,300 and $310,000 in each respective year; that compares with the taxable income of $211,531 and $286,413 in those respective years set out in Annexure D of Exhibit P47 (Mr Clark’s report). The expenses (including estimated income) summarised in the cash flow budgets when deducted from the fee income in the relevant years, produced a shortfall of $27,400 and surplus of $14,800 at June 1997 and June 1998 respectively as against the surplus (before tax) of $94,362 and $170,244 calculated by Mr Clark in respect of the same years.
In his report Exhibit D91 Mr Farrow, set out his comment upon Mr Clark’s report (Exhibit P47) on the issue of what Mr Clark identified to be surplus moneys for which he could not account on the information made available to him concerning the defendant’s taxable income in the period 1992 to 2002, and expenses. Mr Farrow’s report concludes “We believe, based on the points detailed above and supported by the appended documentation, that sufficient argument exists to rebut the proposition of surplus moneys and their use.”
In his report D91 Mr Farrow in the first three of five numbered paragraphs, canvassed:
1.the possibility that payments had been made by the defendant to the credit of the home loan account in the four (or five) months for which there were no extant statements;
2.that Mr Clark’s “average” living expenses of $117,168 had not included school fund contributions, school fee costs in relation to Thomas, allowed an inappropriately small amount for holiday costs, and omitted income tax and payments of child support;
3.that no allowance had been made for the cost of renovations to Hill Street or motor vehicle finance payments.
Paragraph 4 of the report reads:
“4.    We understand that Clark has re-calculated his surplus in the vicinity of $1,600,000.
If we make the following adjustments:
Taxation, say   ($1,000,000)
School fees, say  ($50,000)
ASG contributions, say   ($50,000)
Overseas Trips, say   ($40,000)
Renovation Costs, say   ($300,000)
Jaguar Costs, say   ($88,000)
Child Support etc costs, say  ($160,000)
Total decrement   ($1,688,000)
Adjusted Deficit   ($88,000)
This calculation is made without any reference to actual variance in annual costs to those estimated/assumed in Clark’s report.”

By the date of separation, the plaintiff was 41 years old. Whatever her prospects might have been at that age to re‑enter upon her former career they have no doubt been further diminished to the date of trial by the passage of time, as her unsuccessful attempts to find work in the industry show, her evidence of which I accept.
With respect, I agree with the conclusion of Smith DCJ in Love v Chidley (2002) 219 LSJS 287 and for the reasons he gave, that forgoing a career and its prospects by one of the de facto partners in order to contribute in the role of homemaker, and (if there is a child) parent, falls within Section 11(1) (d) of the Act.
I interpose here an observation by Bleby J in Arnold v Dalton (supra). His Honour (at para 50) concluded:
“For the purposes of the Act, the former de facto partners remain de facto partners until the time that an order is made. So construed, s11(1)(b) would include reference to contributions made after cohabitation has ceased. I therefore conclude that s11(1)(b) requires an assessment of the financial and other contributions of the partners to the maintenance of each other and of their children up to the time that the order is made. However, it cannot look beyond that date.”
In Arnold’s case, there were two children of the parties; the children were aged approximately four and a half and three years at the time of separation and after separation they both remained in the care of their mother. It does not appear from the judgment that there was any issue that the mother had given up a career to embark on providing a homemaking and parenting role in the de facto relationship, so it was not necessary for the court to consider whether or not the inability of a de facto partner to resume or re‑enter a former career because of age, passage of time or some other factor, could constitute a relevant matter within s11(1)(d). Therefore, in my opinion, Arnold’s case does not decide expressly or implicitly that the approach and conclusion in Love’s case on the question was in error.
Additionally to the obstacles in the way of the plaintiff re-entering her former career by reason of her long absence from it, her age and the disadvantage that she does not have an appropriate degree, the plaintiff also has an impairment in her right hand which, in some respects, affects her ability to be in employment involving the use of her hand. In his evidence, Mr Hayes said he believed the plaintiff could work as a typist, but she would have to re-adjust the spatial position of her little finger. On the topic of whether the impairment in the finger would affect the capacity or ability of the plaintiff to lift things using the right hand, Mr Hayes said there is a possibility there has been scarring in the soft tissues at the fracture site, and there may be some early degenerative change. However, his opinion on that matter was couched in terms which relied on the plaintiff’s report of persistent complaints over the years, and when he last saw the plaintiff on 19 September 2000, there was, in his view, a degree of somatic pain present, which he would expect to improve after resolution of court proceedings and matters associated with the separation, although (he qualified) “when you’ve had a circumstance that has persisted for so long, it is very hard for it to be abated completely” (T300).
I accept Mr Hayes’ opinions, from which I infer that the probability is the plaintiff will not be unduly restricted by her hand in carrying out employment involving typing duties, but her ability to lift with her hand is diminished to some uncertain degree. However, these restrictions are relatively little compared to what I find to be her inability to resume or re‑enter upon her former career for the reasons I have earlier described.
In the result the plaintiff’s means, which include her ability to earn income, are impaired by her having effectively forgone the opportunity of a well paid career; it cannot be put any higher than an opportunity, but it is a matter which should be brought to account in considering what is a just and equitable division of property between the parties having regard to the means of both of them.
As I have said, the defendant accepts that the plaintiff, for about three years from the date of trial, will have the sole care of Thomas; in my view that will be in circumstances which will effectively preclude the plaintiff from full-time work or any significant part-time work. It is not that anything in the character of so called spousal maintenance can be a factor in the discretion to be exercised by the court - such a consideration is not within the contemplation of the Act any more than is the maintenance of children (Arnold v Dalton (supra) at paragraph 34) - but a de facto’s employment, or prospect of employment, at the time of the making of the order is a relevant matter where some incident or consequence of the de facto relationship bears upon the means or assets of a party.
The plaintiff’s present source of income or financial support is approximately $635 per week made up of a Supporting Parent’s Pension and Family Assistance payments, aggregating $283, and Child Support payments of $352 paid by the defendant.
The defendant is a successful medical specialist. His taxable income in the year to 30 June 1998 (the month in which the parties separated) was $258,672; in the year to 30 June 2003 it was $347,195.
For two years after the parties separated, the defendant paid mortgage repayments, rates and taxes and utility accounts in relation to the Hill Street property (as he had done throughout cohabitation), diverse credit-card and store accounts incurred by the plaintiff and additionally made payments directly to her; as to the latter and for the reasons I have already stated I cannot determine the precise sum of those payments but it was substantial. The defendant also paid school fees for Thomas. After about September 2000, and until about the date of trial, the defendant paid child support totalling some $34,700, made the repayments on the mortgage, and met the rates and taxes, in relation to Hill Street until it was sold: he paid school fees for Thomas (between separation and trial they amounted to the greater part of $33,000) and continued contributions to an education fund (Australian Scholarship Group) for Thomas, the value of which is shown as $43,610 in the table of the defendant’s assets set out above; drawing on that fund will contribute to the cost of school fees for Thomas which are currently $9,843 per annum. I am informed that the parties, by agreement, have directed that the entitlements from time to time, pursuant to the terms of the fund, be paid to the school at which Thomas is a pupil at the relevant time.
The defendant has been required, by a re‑assessment on 4 June 2003 (Exhibit P45), to increase by $10,951 per annum, with effect from 4 February 2003, the child support payments being made by the defendant in respect of Thomas, bringing to about $2,500 per month the defendant’s payments on that account. The defendant has applied to vary that assessment, but his application had not been determined at the time of this hearing.
Between 1 July 1998 and 16 August 2002 the Hill Street property had a gross rental value of $117,450 - $750 per week in the latter part of that period. That is the valuation Exhibit D86, which was not challenged. The defendant contends that one half of that amount is to be identified as a yet further contribution by the defendant to the plaintiff, and as I infer, Thomas.
I find that it was not until some time in 2000 that the defendant began to agitate for the sale of Hill Street. I note that he met Dr Marmanidis in February 2000. Before that time it appears the defendant still harboured the possibility of there being a reconciliation with the plaintiff; he had left the house in 1998 with the view it was better for Thomas to remain in familiar surrounding and, I find, he remained of that view until in the year 2000, although with perhaps decreasing equanimity as relations between him and the plaintiff did not improve.
At best, some recognition might be given to the plaintiff’s substantially cost free occupation of Hill Street for the period of up to two years to the time of the agreement by the parties, in April 2002, that the property be sold.
The plaintiff submitted that there should be no adjustment to account for the plaintiff’s continuing occupation of Hill Street after separation; it was submitted it was the defendant who left the house, that he went to live in rent-free accommodation and, after separation, he did not apply for an order for vacant possession, partition or sale of the house.
It is the case, I find, that the defendant did not incur an obligation to pay rent at any of the premises in which he resided after separation and so there is less reason for making any allowance on a basis which is referenced to the notional rent the Hill Street property might have brought. The substantial contribution made by the defendant was discharging the mortgage payments, rates and taxes and insurance, in respect of the property, as they fell due. In any event, that the plaintiff was living in Hill Street rent-free was doubtless a factor in quantifying the child support the defendant calculated he would pay, commencing in the latter part of 2000.
In all the circumstances I do not consider this is an appropriate case in which there should be some adjustment to account for notional rent.
The defendant, I accept, is in a marriage with a partner who has assets of her own and an income from her profession so that she is not a financial burden upon the defendant. In my opinion, the identification of that matter as a fact was the only ultimately relevant issue in requiring her to produce documents, although I accept the production of documents by her was a necessary step on the questions Mr Clark had arising out of the “surplus” identified by him and which I dealt with earlier in these reasons.
The defendant’s obligation to pay child support for Thomas will likely continue until Thomas reaches 18 years of age, and financial support may well be required for some years after that were Thomas to continue into tertiary education. Child support, as I understand, is an obligation falling upon both parents, but I do not know to what extent the plaintiff might be required to contribute were she to obtain employment.
Both parties have expended moneys in paying fees for legal, and other services, in connection with these proceedings and proceedings in the Family Court; to the extent of those payments, their respective assets have been reduced. How the expenditure by one of them compares with the expenditure by the other has not been precisely identified in the evidence; it would not be unfair to either party to assume that each of them has spent approximately the same amount, and on that basis little is to be gained by notionally adding back to assets what either of them has paid.
Since about September 2000 when direct payments to her by the defendant ceased, the plaintiff because of her continued role in caring for Thomas has not been able to take up employment, and for the same reason that will continue for some two to three years after the date of hearing. By fulfilling a home-making and parenting role in the relationship to the date of trial (in more recent years as incidents of caring for Thomas) the plaintiff has been out of the workforce and has had no opportunity to derive superannuation benefits; that also will continue for two to three years after the date of trial. Both of these factors are in my view relevant matters within Section 11(1)(d). Further, the plaintiff’s prospects of obtaining employment are reduced by her age, and as I find, resuming or re-entering upon a career in marketing is not an option which is open to her.
The defendant conversely was able to develop his medical career during the relationship and he can look forward to continuing financial return and increased security as a result.
The plaintiff’s financial resources are significantly less than those of the defendant. In my opinion the plaintiff’s contribution to the relationship particularly as parent to Thomas not only freed the defendant to earn income and acquire, conserve and improve assets but also with the passing of each year of the relationship, after the birth of Thomas, the plaintiff was progressively disadvantaged in her prospects of returning to her former career were the relationship to come to an end. In the circumstances of this case that latter matter is a very substantial factor to be weighed in deciding what is just and equitable concerning the division of property.
The plaintiff’s submission is that it would be just and equitable to order that the plaintiff have eighty to ninety percent of the total asset pool, less the value of the property she had at trial. In making that submission, the plaintiff appeals to the approach of the Family Court in exercising its jurisdiction under Section 79(4) of the Family Law Act, referring to a number of cases of which In the Marriage of Horsley (1991) 103 FLR 186 is an example. By Section 79(4) the court is required to take into account not only financial and other non-financial contributions of a party to the property of the spouses, or either of them, as well as a contribution as house-maker or parent, but also the matters referred to in Section 75(2) “so far as they are relevant”. Section 75(2) comprises a number of matters including, inter alia,
(a)the age and health of the parties
(b)capacity for gainful employment
(c)a party’s care or control of a child of the marriage
(e)the responsibility of either party to support any other person
(f)eligibility for a pension, allowance or benefit
(g)a standard of living that in the circumstances is reasonable
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the applicant party
(o)any fact or circumstance which in the opinion of the court the justice of the case requires to be taken into account
The plaintiff contends that in all but name the relationship between the plaintiff and the defendant was a marriage, and the court’s discretion in Section 11(1)(d) to have regard to other relevant matters, is so wide that to aid the court in deciding what is just and equitable, it is appropriate for the court to consider the approach of the Family Court.
In Love v Chidley (supra), Smith DCJ wrote (Para 137):
“Though the differences between the Family Law Act and the SA Act might be regarded as ‘substantial, conspicuous and deliberate’ as was said to be the case in respect of the New South Wales Act (see Evans per Gleeson CJ and McLelland CJ in Equity at page 767 para 35), nevertheless there are similarities in the discretionary considerations specified in the respective enactments (cf Section 79(4)(a) to (c) Family Law Act and Section 11(1)(a) and (b) SA Act and cf Section 75(2)(o) of Family Law Act and Section 11(1)(d) of the SA Act), accordingly the approach of the Family Court to property disputes can be of assistance in identifying the principles which guide the exercise of this Court’s discretion under Sections 10 and 11 of the SA Act;”
Earlier in his reasons, His Honour had considered, inter alia, the De Facto Relationships Act 1984 (NSW) (“the NSW Act”) noting that even though it did not contain an equivalent to Section 11(1)(d) of the Act (the discretion being to adjust property interests as seems just and equitable having regard only to matters the equivalent of Section 11(1)(a) and (b)) the majority in Evans v Marmont (1997) 21 FLR 760, considered that the needs and means and financial circumstances of the parties, the length of the relationship, promises or expectations of marriage and opportunities lost by reason of contributions, may well be included as factors in determining what is “just and equitable”. As His Honour concluded, and with respect I agree, those factors (at least) are to be properly seen as within the expression “other relevant matters” (Section 11(1)(d)) to which the court may have regard.
The defendant submitted that the defendant’s contributions by way of a substantial sum, $300,000, from his own resources as part payment for the purchase of the Hill Street premises, and providing all the household income and the moneys for other expenditure between 1991 and September 2000 thereby affording to the plaintiff an affluent and extravagant lifestyle, was such that having regard also to the plaintiff’s receipt of one-half of the net proceeds of sale of Hill Street, a Jaguar car and approximately five-sixths of the furniture of the parties it would be just and equitable that the plaintiff be paid by the defendant $60,000 (approximately one half of the combined value of the defendant’s superannuation fund and the education fund) plus $15,000 ($5,000 per year for each of the three years after trial to account for the plaintiff’s ongoing responsibilities for Thomas) a total of $75,000.
As to the submission that the defendant provided to the plaintiff a lifestyle categorized, by his counsel, as affluent or extravagant, in my opinion that is not a relevant consideration. In The Marriage of Kennon (1997) 22 FLR 1 (at 29) the majority wrote:
“The standard of living which one party provides to the other is not to be seen as a down-payment on a subsequent property settlement. … The circumstance that the parties during the marriage lived to a very high standard largely due to the wealth of one of them does not mean that at the end of that period that circumstance cancels out or largely diminishes the contributions which were expected of the other party and which that person provided.”
In my view those reasons are equally applicable to a de facto relationship.
In my opinion, that which the defendant submits to be just and equitable fails to give appropriate recognition to the plaintiff’s contributions as homemaker and parent and particularly the opportunity for well remunerated employment lost as a consequence of her performing that role, and as I find her past (and for the next 2-3 years) future unavailability for full-time or significant part-time work even if such work is available to a person of the plaintiff’s age, experience and skills. As I have said, in my view these are substantial factors.
The plaintiff’s submission makes no allowance for the fact that the defendant provided $270,00 towards the purchase of Hill Street from a source to which the plaintiff’s role as homemaker had not contributed in any substantial way.
The asset pool is $683,000. Consistently with Arnold v Dalton (supra) the contributions by the parties, the plaintiff in her role as home maker and parent and the defendant as income earner, were equal and that is the appropriate starting point for the application of SECTION11(1)(b).
The defendant contributed $270,000 to the acquisition of what was the principal asset of the parties, the house at Hill Street. Except for that, in my view the plaintiff’s financial contribution and her contribution as homemaker and parent was equal to the defendant’s financial contribution which produced the assets of both of them; an equal division between them of the assets would have seemed appropriate subject to any adjustment by reason of other relevant matters within Section 11(1)(d).
The $270,000 contributed by the defendant is equal to about 40% of the asset pool, to allow for which the pool might be apportioned 70/30 in the defendant’s favour. However that contribution is to be set against the length of the relationship, the plaintiff’s steadily reducing opportunity, as each year passed, to resume or re-enter upon her former career or to successfully compete for other employment, the plaintiff’s needs and means at the date of the hearing, and the more advantageous position of the defendant, compared with that of the plaintiff, in relation to future financial security as a consequence of him being able to successfully pursue his career during the relationship while the plaintiff provided the majority of the homemaking and parenting tasks. Also for two to three years from the date of hearing the plaintiff will need to be available for Thomas at pre and post-school hours.

The plaintiff and the defendant embarked on a relationship in which, as I find, it was the plaintiff’s expectation that they would marry, an expectation often reinforced by the defendant’s proposal’s of marriage and the steps each of them took, with the knowledge and consent of the other, to try to arrange for a marriage to take place. The plaintiff, at the request of the defendant, declined an offer for advancement in her employment made to her more than two years after the relationship between them began. The plaintiff’s expectations concerning the permanency of the relationship were the basis upon which the plaintiff ordered her life. That is also a relevant matter in my opinion.
I have considered whether some adjustment should be made to bring to account the substantial sum received by the plaintiff when Hill Street was sold. To the extent part of that sum has been expended on fees for legal and other services I have already dealt with it. From Exhibit P69, it would appear the plaintiff lived at an expensive level after the settlement of Hill Street occurred. However there is insufficient evidence to bring me to find she has so wastefully dissipated assets it would be appropriate to reduce what in my judgment would otherwise be a fair and equitable division of property between the parties.
I find it would be just and equitable that the defendant pay to the plaintiff a lump sum of $200,000 and pursuant to Section 10 of the Act I order accordingly.
The plaintiff’s application for an extension of time within which to bring an action for damages is refused. There will be no order on the defendant’s counterclaim.
I will hear the parties on the question of costs.