Hollingsworth v Thompson

[2010] NSWSC 1033

CITATION:	Hollingsworth v Thompson [2010] NSWSC 1033
HEARING DATE(S):	6 and 9 September 2010
JUDGMENT DATE :	24 September 2010
JURISDICTION:	Equity Division
JUDGMENT OF:	Hamilton AJ
DECISION:	Defendant to have 62.5% of the value of the Bondi Junction property.
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE [105] - De facto relationships - Legislation - New South Wales - Property (Relationships) Act 1984 - Adjustment of property interests - Discretion - Principles on which exercised
LEGISLATION CITED:	Property (Relationships) Act 1984
CATEGORY:	Principal judgment
CASES CITED:	Bilous v Mudalian (2006) 65 NSWLR 615 Chanter v Catts (2005) 64 NSWLR 360 Davey v Lee (1990) 13 Fam LR 688 Evans v Marmont (1997) 42 NSWLR 70 Howlett v Neilson (2006) 33 Fam LR 402 Jones v Grech (2001) 27 Fam LR 711 Kardos v. Sarbutt) (2006) 24 Fam LR 550 Parker v Parker (1993) 16 Fam LR 863
PARTIES:	Allan Francis Hollingsworth (Plaintiff) Peta Maree Thompson (First Defendant) L & L Luxor Pty Limited (Second Deendant)
FILE NUMBER(S):	SC 277274 of 2008
COUNSEL:	D Dura (Plaintiff) CM Simpson SC (First Defendant) No appearance (Second Defendant)
SOLICITORS:	Doyle Edwards Anderson Lawyers (Plaintiff) Christopher Hughes & Associates (First Defendant) No appearance (Second Deendant)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON AJ

FRIDAY 24 SEPTEMBER 2010

2008/277274 ALLAN FRANCIS HOLLINGSWORTH V PETA MAREE THOMPSON & L & L LUXOR PTY LIMITED

JUDGMENT

1 The plaintiff, Allan Francis Hollingsworth, and the first defendant, Peta Maree Thompson, each move the Court for an adjustment of their joint and separate property in proceedings commenced under the Property (Relationships) Act 1984 (“the PRA”). I shall refer to the first defendant in this judgment as “the defendant”.

2 The second defendant, L & L Luxor Pty Limited (ACN 075 937 503) (“the company”), is a company that was formed by the parties during their relationship and through which they traded and jointly earned income. At the present time the plaintiff is the sole director and each party holds one share in the company. The company is not represented in the proceedings.

The discretion and the approach to it.

3 So far as the exercise of the relevant discretion under the PRA is concerned, the criteria to be applied are stipulated by s 20(1) as follows:

“20 Application for adjustment
(1) On an application by a party to a domestic relationship for an order under this Part to adjust interests with respect to the property of the parties to the relationship or either of them, a court may make such order adjusting the interests of the parties in the property as to it seems just and equitable having regard to:
(a) the financial and non-financial contributions made directly or indirectly by or on behalf of the parties to the relationship to the acquisition, conservation or improvement of any of the property of the parties or either of them or to the financial resources of the parties or either of them, and
(b) the contributions, including any contributions made in the capacity of homemaker or parent, made by either of the parties to the relationship to the welfare of the other party to the relationship or to the welfare of the family constituted by the parties and one or more of the following, namely:
(i) a child of the parties,
(ii) a child accepted by the parties or either of them into the household of the parties, whether or not the child is a child of either of the parties.”

4 In Bilous v Mudalian (2006) 65 NSWLR 615 at [24] citing with approval Hodgson JA in Howlett v Neilson (2006) 33 Fam LR 402 at [25] it was said that the exercise of the discretion involves three principal steps:

“The first is the identification and valuation of the property of the parties. The purpose of this exercise is to determine the “divisible pool of property”. The second is the evaluation and balancing of the respective contributions of the parties of the types referred to in s 20. The third is the determination of the order required sufficiently to recognise and compensate the applicant's contribution.”

FACTUAL BACKGROUND

5 The plaintiff was born on 25 March 1945 and is currently 65 years of age.

6 The defendant was born on 14 August 1962 and is 48 years of age.

7 The plaintiff and the defendant were in a de-facto relationship for approximately 22 years.

8 According to the plaintiff, the parties met in 1980 and commenced cohabitation in 1985. The defendant states that the parties met in or around 1981 and commenced living together in late 1986. The parties separated on or around 11 October 2007.

9 The plaintiff has four children from a previous marriage but they did not live with the plaintiff and the defendant during their cohabitation. Those children are all over 18 years of age.

10 There is one child of the parties’ relationship, Lara Louise Thompson Hollingsworth, born on 7 February 1988. Lara is 22 years of age and lives in Melbourne at Whitley College, Parkville where she is studying.

11 Prior to meeting the defendant, the plaintiff was a police officer with the Victorian Police Force for a period of 17 years. He was discharged from the Police Force in 1980 on medical grounds.

12 The defendant was a hairdresser when she met the plaintiff and continued to work as a hairdresser until around 1992.

ASSETS AND LIABILITIES AT THE COMMENCEMENT OF COHABITATION

13 At the commencement of cohabitation in 1985 or 1986, the plaintiff had the following assets and liabilities:

a. A 50% share in a property situated at 4 Dunluce Place Wodonga (“the Wodonga property”). The plaintiff still co-owns that property with his former wife, Glenys Hollingsworth, who still lives there.

b. A Nissan motor vehicle with a value of $14,000.00;

c. A pension from the Victorian Police Force of $400.00 per week which was indexed in accordance with CPI increases and paid to the plaintiff on a fortnightly basis following his discharge from the Police Force on medical grounds.

d. There was a mortgage on the Wodonga property the amount of which is not revealed in the evidence. There is no evidence of the plaintiff having other liabilities.

14 The defendant had approximately $16,000.00 in cash and investments. It was one of these investments that she subsequently realised and contributed to the purchase of the Bondi Junction property. There is no evidence of the defendant having liabilities.

RELEVANT FACTS BEFORE AND DURING COHABITATION

15 The following facts are undisputed or easily found on the evidence.

16 In the 1970s the plaintiff opened AF & G Hollingsworth Account No. 49440 comprising an S1 and S2 account with the Police Credit Co-Operative (referred to as “Police Credit Account 49440”). The plaintiff says that until 2007 no income earned by the defendant and the plaintiff from the company or their business was paid to the account.

17 In 1975/1976 the plaintiff opened A & G Hollingsworth Account No. 49441 with the Police Credit Co-Operative (referred to as “Police Credit Account 49441”). The plaintiff says no joint income was paid to this account.

18 On 9 August 1984 the plaintiff and his wife separated. The plaintiff thereafter applied his pension towards the mortgage over the former matrimonial home and in support of the children of the marriage. The plaintiff and his wife were divorced in 1985.

19 After the parties commenced to live together the plaintiff applied “nearly all” his police pension to support his former wife and children.

20 In 1986 the parties moved to Sydney. The plaintiff worked in several roles as a caretaker or manager of various buildings from which he earned income. As a result of the plaintiff taking on such roles, the parties were able to take advantage of significant benefits such as rent-free accommodation in the various buildings which the plaintiff managed. It should be added that in relation to both Blues Point Tower and the Meriton properties the defendant also had contractual roles with the property owners, so that this advantage should be attributed in part to her.

21 Except for a period after Lara’s birth the defendant continued to work as a hairdresser. She also earned income from performing domestic duties. She also rendered some assistance with the plaintiff’s caretaking duties.

22 In 1992 the parties moved from Manly to Blues Point Tower, McMahons Point. The plaintiff took employment as Building Manager at that property. It would appear that both parties were employed as caretakers there.

23 In 1994 the parties moved from Blues Point Tower to Eastgate Gardens Apartments, Bondi Junction. The settlement of $25,000.00 that he received when his position with Eastgate Gardens was terminated the plaintiff used to take the defendant and their daughter to America for a holiday and the rest of the money was applied to day to day living expenses.

24 In April 1995 the defendant and the plaintiff were engaged by Meriton Apartments Pty Ltd (“Meriton”) to take on a caretaking and maintenance role at a block of apartments at 2A Hollywood Avenue, Bondi Junction. At the same time they took on a similar role in relation to a block of apartments at 18-34 Waverley Street Bondi, which was under the same Strata Plan number as the block of apartments at 2A Hollywood Avenue. The apartments at 18-34 Waverly Street (the Oscar Apartments) were still under construction. The plaintiff’s role was caretaking, which included the cleaning work. He also did various maintenance jobs for which he was paid additional amounts. The defendant’s role was predominantly sales and rentals of the apartments, at first for Meriton and subsequently for private owners. The plaintiff and the defendant operated a rent roll. It is likely that the plaintiff and the defendant assisted each other in their principal roles from time to time.

25 In October 1996 the parties acquired the company to operate their business, with the parties being the sole directors and shareholders.

26 From 1997 the parties paid company receipts into an ANZ account styled P M Hollingsworth trading as L & L Luxor account 411768 and a joint ANZ account 401911.

27 On 16 July 1997 the parties purchased 54/2A Hollywood Avenue, Bondi Junction for $390,000 with the assistance of a mortgage advance of $310,000. The plaintiff says he advanced $60,000 from Police Credit Account 49440 and the Defendant advanced $30,000 towards the purchase. The defendant says that she contributed $29,773.65 from Australian Fixed Trust Bonds held by her at the commencement of cohabitation together with accumulated investment income on them. The plaintiff says it was agreed that $30,000 would be repaid to him from caretaking payments paid to the parties’ accounts and that this in fact occurred.

28 An ANZ interest saver account was opened to which commissions and business earnings were subsequently deposited. The plaintiff says the mortgage repayments were made from the joint account and subsequently from the interest saver account.

29 On 10 July 1998 the plaintiff purchased 43/482 Pacific Highway, Artarmon (“the Artarmon property”) for $250,000 by payment of a deposit of $25,000 and stamp duty of $7,254 from Police Credit Account 49440 and with the assistance of a mortgage advance of $160,000. The plaintiff says all payments were made by direct payment from Police Credit Account 49440. The plaintiff says he made three initial payments of $1,043.77 and a single payment in November 1998 of $11,043.77. The property was not leased and was at times occupied by the plaintiff’s daughter, Melanie, and other members of his family and also by himself for a period post separation.

30 In 1998 the plaintiff received $50,000 ($40,000 clear of legal fees) from settlement of a claim by him against Star City Casino and paid the balance after purchase of a television set to the Police Credit Account 49440.

31 In 2000 the plaintiff received a lump sum payment of $525,832.41 from the Victorian Police Force in respect of his pension and rolled that into the Emergency Services and State Super (ESSS) Fund. The plaintiff’s position was formally terminated and his pension ceased. In 2001 the plaintiff directed ESSS to pay $160,000 to Police Credit Account 49440. Of that, he applied $60,000 in reduction of the mortgage on the Artarmon property. He later withdrew $100,000 from the ESSS Fund to discharge the mortgage on the Artarmon property, but prior to doing so, he deposited this money into the mortgage offset account with the ANZ Bank for the Bondi Junction Property to reduce interest repayments on that loan.

32 In July 2001 the plaintiff paid $100,000 (of $160,000) from Police Credit Account 49440 to the ANZ interest saver account to reduce interest payments on the mortgage pending his using the monies to discharge the Artarmon mortgage and on 9 November 2001 he discharged the Artarmon mortgage with a payment of $73,432.10 drawn from the ANZ interest saver account.

33 In 2004 the relationship between the plaintiff and the defendant began to deteriorate.

34 On 29 August 2005 the plaintiff’s mother died and the plaintiff became entitled to a 25% interest in 9 Holly Court, Warrnambool pursuant to an agreement between him and his siblings.

35 At Easter 2007 the defendant’s mother died. The defendant received between September 2007 and March 2009 $146,109.74 together with her mother’s motor vehicle and jewellery. The defendant relevantly applied $28,027.07 to Warren Wells Solicitors in respect of legal fees relating to, inter alia, a default notice issued by the Owner’s Corporation and subsequently $26,000 in discharge of a CBA overdraft taken out by her to meet expenses associated with the conduct of the strata management business.

36 The deterioration of the parties’ relationship that commenced in 2004 continued and became prolonged and bitter. It was so bitter that there were AVO proceedings between them commenced by the defendant. Although these proceedings were ultimately dismissed, the plaintiff was arrested on a number of occasions, apparently for alleged breaches of interim orders. He has always denied any justification for the proceedings and any wrongdoing on this part. The conflicts between the parties existed at a domestic level but clearly spilt over into the execution of their duties in relation to the Meriton properties. I find it certainly impossible and probably not productive to resolve the question of whether one party or the other was more to blame for the state of conflict. There can be no doubt that it impinged on the carrying out of their business duties and that it was as a result of this conflict that a default notice was on 21 December 2007 issued by the Owners Corporation. On 28 February 2008 a termination notice was served by the Owners Corporation and the building services agreement was terminated on 7 March 2008.

37 In May 2008 the defendant moved out of the Bondi Junction property and on 6 June 2008 the plaintiff resumed occupation.

38 On 17 September 2009 proceedings were instituted against the parties by the body corporate of the Bondi Junctions units seeking recovery of unpaid levies of $7,796.92.

THE PLAINTIFF’S FINANCIAL CONTRIBUTIONS TO THE RELATIONSHIP

39 As appears above the plaintiff has given considerable evidence as to his earnings and as to sums brought by him into the relationship, for instance, sums in settlement of employment disputes. There seems to be a suggestion that these were greater than the defendant’s earnings during the relationship. This may well be so, but it is impossible to quantify either the plaintiff’s earnings or the defendant’s earnings and it must be remembered that the defendant continued to earn income virtually throughout the relationship and that her earnings were clearly considerable once she had started to participate in caretaking roles.

40 If one examines the basis of the plaintiff’s claim as set out below (see [60]) it would seem that he does not in reality rely to any great extent or perhaps at all on these matters but rather on his financial contribution to the acquisition of the Bondi Junction property and his non financial contributions to the relationship, which he asserts were equal to those of the defendant.

41 I do not find that any imbalance in the parties’ earnings should be given any weight in determining the matters in issue between the parties. No do I give any weight to the various other financial matters alleged by the parties (including the value of differential occupation of the Bondi Junction property).

42 The plaintiff does rely on his contributions to the acquisition of the Bondi Junction property. His case on these is set out in [27] above.

THE DEFENDANT’S FINANCIAL CONTRIBUTIONS TO THE RELATIONSHIP

43 The defendant’s contentions as to her contributions to income have already been noted and discussed above.

44 As appears below the defendant’s case on contributions to the Bondi Junction property are that the plaintiff’s contributions were in an amount or amounts not as great as claimed by him. Furthermore, she asserts that whatever amounts were contributed from bank accounts owned by him, the funds in those accounts that were used for this purpose must have included jointly owned funds deposited into his accounts from joint earnings of the parties in their business enterprise. On this basis she asserts that she contributed more than 50% of the funds used in the acquisition of the Bondi Junction property, but does not quantify that additional contribution.

THE PLAINTIFF’S NON FINANCIAL CONTRIBUTIONS TO THE RELATIONSHIP

45 The plaintiff contends that he made the following non financial contributions towards the relationship with the defendant:

a. carried out improvements around the Bondi Junction property;

b. attended to grocery shopping a role which he shared with the defendant;

c. attended to and ensured outstanding bills and accounts were paid;

d. ironed and washed clothes a role which he shared with the defendant;

e. cleaned the Bondi Junction property including vacuuming, cleaning bathrooms and cleaning generally a role which he shared with the defendant;

f. drove the defendant wherever she wanted to go.

46 The nature and extent of the plaintiff’s non financial contributions towards the relationship are disputed by the defendant.

47 The plaintiff contends that the parties contributed in the following manner towards their joint responsibilities for the care of Lara:

a. the plaintiff would drive Lara to and from school, take Lara to extracurricular activities, help Lara with her homework, buy things that Lara needed from time to time, accompany Lara to medical appointments and attend to her general day to day care;

b. the defendant contributed by preparing the school lunches, dressing Lara, buying clothing for Lara and other items she required from time to time, attending to Lara’s general day to day care and helping Lara with her homework.

48 The nature and extent of the plaintiff’s contribution towards the parties’ joint responsibilities to Lara are disputed by the defendant.

THE DEFENDANT’S NON FINANCIAL CONTRIBUTIONS TOWARDS THE RELATIONSHIP

49 The defendant’s affidavit evidence concerning this was as follows:

“95. Until Lara moved out of the family home to attend university, in Melbourne, I was always primarily responsible for her care.
96. When she was a baby and toddler, I was almost solely responsible for attending to her in the night, feeding, bathing and caring for her when she was ill.
97. The plaintiff became more involved with Lara as she got older. He was involved in driving her to activities, driving Lara and I to her sports and generally spending time with her. However, he was still not significantly involved with attending to her needs such as preparing her for school, preparing meals and taking her to the doctor for example.

98. In her later teenage years, Lara appeared to develop some emotional issues. She commenced attending a psychologist in about 2006. On one occasion in 2006 she attended Accident and Emergency at St Vincent’s Hospital, Sydney in a highly distressed state.
99. I spent a lot of one on one time with Lara trying to counsel and talk to her during 2006 and 2007.
100. Throughout the course of my relationship with the plaintiff, I undertook the vast majority of our household chores. For example, I undertook most of the cleaning, the washing and ironing, cooked most of the meals and was generally responsible for tidying our house.”

THE LAW

50 The Court of Appeal ruled in Evans v Marmont (1997) 42 NSWLR 70 that the contributions stipulated in subparagraphs (a) and (b) of s 20(1) of the PRA are the only criteria to which regard may be had in exercising the discretion, although they must be viewed in the context of the whole relationship and all the circumstances. There has been considerable judicial controversy as to whether the contributions to which regard can be had must have been made during the period of cohabitation, or whether contributions before or after that period can be taken into account. The preponderant view appears to be that, at least in some circumstances, it is possible to take into account contributions both before and after the period of cohabitation: see Jones v Grech (2001) 27 Fam LR 711 per Davies and Ipp AJJA, Powell JA dissenting. In the last mentioned case the nature of the inquiry under s 20 was stated as follows by Davies AJA at [29]:

“29 In general, an inquiry under s 20 requires examination, first, of the identity and value of the respective assets of the parties, secondly, of the contributions of the type contemplated by paras (a) and (b) made by each partner, and, lastly, whether, in all the circumstances of the case, the contributions have already been sufficiently recognised and compensated for and, if not, whether it is just and equitable to make an order so that the contributions of one or other of the parties are sufficiently recognised and compensated for. See Powell J in Lipman v Lipman (1989) 13 Fam LR 1 at 18.”

51 As to the date at which the property should be valued, it is said that it is generally appropriate to value the property for the purposes of s 20 applications at the time of the hearing. However, it has also been said that it is appropriate to take into account the value at an earlier time, such as the termination of the relationship, in appropriate circumstances. In Parker v Parker (1993) 16 Fam LR 863 Young J (as his Honour then was) said at 874:

“Mr Brereton submits that the relevant date is the date of separation though he concedes that no greater award can be made to the plaintiff than the amount of the defendant’s assets as at the date of trial. This matter was considered by Master Macready in Taggart v Gaston (unreported, 7 December 1991). In that case the learned Master reviewed most of the applicable authorities and came to the conclusion that as a matter of principle this court under the De Facto Relationships Act should follow the approach taken by the Family Court in Re Wardman and Hudson (1978) 33 FLR 196, 200. The Full Family Court there said that unless there are other factors the appropriate time to value the assets is at the date of the hearing. The date of separation may be chosen if the facts warrant it, such as (a) where a party had won the lottery between separation and hearing: Mackie v Mackie [1981] FLC 91-069, where the parties had agreed to adjust their rights as at the date of separation: Faraone v Shabalah (1988) 12 Fam LR 577; [1988] FLC 91-956, or where there had been a deliberate wasting of assets after separation: Jones v Jones (unreported, Master Macready, 7 August 1992).”

52 In my view this is a case where it is appropriate to assess the value of the assets as at the date of hearing.

53 The approach to be adopted under s 20 is a holistic one. In Davey v Lee (1990) 13 Fam LR 688, McLelland J said at 689:

“… the court is not required under s 20 to undertake a reductionist process analogous to the taking of partnership accounts (notoriously one of the most time-consuming and expensive litigious exercises) by examining every alleged “contribution” of the kinds described in the section with a view to putting a monetary value on it in order to reach an accounting balance one way or the other, which is to be then eliminated by the requisite financial adjustment. Rather the court is required to make a holistic value judgment in the exercise of a discretionary power of a very general kind. It is to be noted that in exercising that power the court is required “so far as is practicable” to “make such orders as will finally determine the financial relationships between the de facto partners …”

54 In a determination of what is just and equitable a global view is taken and, contrary to an earlier but erroneous view that contributions had to be identified as referable to particular property, the Court is not restricted to considering only property to which an identifiable contribution can be identified. The position was stated as follows in Chanter v Catts (2005) 64 NSWLR 360 per Bryson JA dissenting but in the majority on this issue:

“88. It is quite usual for the Court of Appeal to take a global view in which contributions made directly or indirectly to acquisition, conservation or improvement of some identifiable property or financial resource is regarded when deciding to make an adjusting order which is to be satisfied out of some different property or financial resource; this global view rather than detailed adjustment item by item is often favoured by practicality, and by the court's duty under s 19 to determine finally financial relationships and to avoid further proceedings. The global view taken by the majority in Gazzard v Winders is the usual course. In my opinion the global view is justified by s 20, the terms of which contain nothing, in my opinion, to indicate that the burden of adjustment may fall only on property or on a resource to which contribution was made.

89 Nothing in the terms of s 20 or of the Act generally means that it is necessary, if an item of property or a financial resource is to be the subject of an order adjusting interests, that a contribution either of the kind described in s 20(1)(a) or of the kind described in s 20(1)(b) should be traced to that particular item of property or resource. Section 20(1) speaks in terms of contribution to acquisition, conservation or improvement of property in par (a), but the contributions referred to in par (b) are not by the terms of s 20(1) related to identifiable items of property and in their nature they could not usually be traced into or otherwise related to identifiable items of property. The words of s 20(1) which precede par (a) and par (b) contain no expression which requires an order adjusting interests in property to reflect or give effect to contributions to the particular piece of property interests in which are adjusted; what is required is that the court have regard to the contributions; there may be a connection, but there is no necessary connection, and there may not necessarily be a discernible connection among a contribution, a piece of property and an adjusting order.”

55 In Evans v Marmont supra at 75 citing Hodgson J (as his Honour then was) with approval it was said that in the exercise of the discretion the “needs and means of the parties will have general relevance, as subsidiary factors, to the question of what is just and equitable having regard to the plaintiff’s contributions ….”

56 In relation to property held by a party at the commencement of a relationship Ipp JA in Bilous v Mudaliar supra disapproved the judgment of Brereton J in Kardos v. Sarbutt) (2006) 24 Fam LR 550 and said:

“62. By the approach adopted in Howlett v Neilson Brereton J appears to have meant the apportionment of the increase in value of the assets initially contributed. His Honour appears to have stated a rule to the effect that, for the purposes of determining what order should be made under s 20(1) of the Property (Relationships) Act , any increase in value in assets initially contributed should be regarded, in all circumstances, as entirely a contribution by the party who contributed those assets. If that is what his Honour intended, I do not agree.

63. Determinations as to what orders should be made under s 20 are to be made solely on the grounds of the justice and equity of the case. The justice and equity of the case may derive from the fact that the party who owns the family home or other property was able to retain that property, while the market value increased, because of joint efforts of wage earning, homemaking and parenting, and mutual support. In some instances the non-financial contributions of one party may result in property of the kind in question not having to be sold. In other instances, the non-financial contributions of one partner may allow the other to advance his or her career and earn a high income that enables the property in question to be maintained and retained. Thus, an increment in capital value may well result, indirectly, from joint efforts of wage earning, homemaking and parenting, and mutual support.”

CURRENT JOINT ASSET AND LIABILITY POSITION OF THE PARTIES

57 It is agreed between the parties that the current joint assets and liability position of the parties can be summarised as follows.

PROPERTY

Plaintiff	Defendant	Total
1	54/2A The Oscar on Hollywood, Bondi Junction.	$450,000	$450,000	$900,000
2	Furniture and contents The Oscar.	$2,000	$0	$2,000
3	43/482 Pacific Highway, Artarmon.	$490,000	$0	$490,000
4	L & L Luxor Pty. Limited (anticipated balance held for distribution to the parties after agreed payments)	$23,217	$23,216	$46,433
5	118 Computer Science Corporation shares.	$6,824	$0	$6,824
6	¼ share 9 Holly Court, Warrnambool.	$50,000	$0	$50,000
7	½ share in Wodonga property	$150,000	$0	$150,000
8	Balance of Police Credit Account 49440 S1.	$1,455	$0	$1,455
9	Balance of Police Credit Account 49441 120	$NK	$0	$NK
10	Police Credit Account 49440 S2.	$4,711	$0	$4,711
11	1/10th share in horse (stabled in Warrnambool)	$5,000	$0	$5,000
12	ESS Superannuation (at 30.06.07 est. $600,683.35)	$229,976	$0	$229,976
13	Police Credit Super Future RSA (at 30.06.07 est. $98,374.50)	$60,308	$0	$60,308
14	ANZ Home Loan Interest Saver A/c No. 594582342	$19,822	$19,822	$39,644
15	Reimbursements from L & L Luxor Pty. Limited.	$0	$0	$0
TOTAL PROPERTY	$1,493,313	$493,038	$1,986,351

Plaintiff	Defendant	Total
16	Police Credit Super Future RSA	$0	$38,000	$38,000
17	AMP	$0	$30,302	$30,302
TOTAL SUPERANNUATION	$0	$68,302	$68,302

Plaintiff	Defendant	Total
18	Mortgage to ANZ (The Oscar)	$19,186	$19,186	$38,372
19	Artarmon Unit Levies	$7,797	$0	$7,797
TOTAL LIABILITIES	$26,983	$19,186	$46,169

58 As to Item 15, $178,566.79 is held to be reimbursed to the parties in accordance with orders I have already made by consent providing for determination of the reimbursements. It is agreed that any differential between them will not be such as to affect the determination of this matter.

THE PARTIES’ CLAIMS

59 The parties’ claims were ultimately formulated as follows.

60 The plaintiff’s claim is that the proceeds of the Bondi Junction property be divided equally and that the parties otherwise be declared to be respectively entitled beneficially to the property in their names. This claim is made on the basis that the plaintiff concedes that the defendant made equal financial contribution to the acquisition of the Bondi Junction property and that the non financial contributions of the parties to the relationship are to be taken as being equal.

61 The defendant claims that she should be entitled to 70% of the proceeds of the Bondi Junction property. This claim is made on the basis that she contributed more than 50% to the acquisition of the Bondi Junction property and that she contributed financially to the acquisition of the Artarmon property, although she makes no claim to that property. She contends that her non financial contributions to the relationship were considerably greater than those of the plaintiff.

DISPUTED FACTS

62 The principal areas of dispute between the parties as to central facts in this case are as follows:

a. the defendant asserts but the plaintiff denies that her financial contribution to the acquisition of the Bondi Junction property was more than 50%;

b. the defendant asserts that her non financial contribution to the relationship by way of homemaking and upbringing of the child was more than equal to and considerably outweighed the plaintiff’s contribution, which the plaintiff denies.

63 An aspect of this case that I find curious is the parties' imprecision as to important financial matters, bearing in mind that they are both people of some financial sophistication in light of their personal investments and the nature of the business that they carried on, particularly in the administration of the large Meriton properties. For example, the solicitor’s memorandum of costs and disbursements relating to the acquisition of the Bondi Junction property shows cheques of $41,806.69 provided towards settlement, but no one seems able to identify these cheques or their source.

64 The plaintiff asserts that he contributed $60,000 to the initial acquisition of the Bondi Junction property, whilst the defendant undoubtedly contributed only about $30,000. He says that of the $60,000 he subsequently by agreement recouped some $30,000 from joint funds, so that his contribution should be regarded as being reduced to $45,000 and the plaintiff’s contribution should be regarded as increased to $45,000, rendering their contributions equal.

65 On the evidence in my view only $50,833 rather than $60,000 is clearly identified as having been contributed by the plaintiff to the initial acquisition. As to the recouping by him of $30,000, the only evidence is his word concerning this and there is no evidence as to how and when that occurred. However, what I regard as significant about his evidence is his concession that the defendant contributed 50% to the initial acquisition of the Bondi Junction property. The claim that he has made is made on that basis.

66 The defendant’s claim that she contributed more than 50% to the initial acquisition of the Bondi Junction property and that she contributed to the funds applied by the plaintiff to the acquisition of the Artarmon property depends on the drawing of inferences from the overall deposits of funds belonging to him into the plaintiff’s relevant accounts and the fact that it is said that they are less than the amounts drawn out of those accounts in respect of the acquisition of the properties. The inference contended for is that funds must have been deposited into the accounts from joint earnings. The evidence concerning this is diffuse and uncertain. On the other hand an examination of the statements of the accounts at the relevant times shows that the relevant funds came out of those accounts and that at those times there were sufficient funds in the accounts that came from sources not associated with the defendant, being the plaintiff’s own moneys or moneys deposited into the accounts by his son, Jason.

67 On this evidentiary material I am not prepared to find that the defendant made any contribution to the acquisition of the Bondi Junction property beyond the $30,000 that she undoubtedly put in and the amount which the plaintiff concedes came from joint funds to reimburse him for his expenditure. In these circumstances the finding that I make is that the financial contributions of each of the parties to the initial acquisition of the Bondi Junction property were equal and consequently their overall contributions to the acquisition of the property were equal.

68 So far as the non financial contributions by way of homemaking and child care are concerned, there is not a great deal of evidence on which one can judge whether the contributions were equal as asserted by the plaintiff or whether the defendant’s contributions were greater as asserted by the defendant.

69 The best conclusion I can come to on the material is that the plaintiff may well have made some housekeeping contribution, particularly through cooking. There may have been other contributions. But the view I have formed is that the bulk of the housekeeping was done by the defendant.

70 Equally, as far as the child care is concerned, I must not be taken as concluding that the plaintiff paid no attention to or did not care for Lara. In particular it is quite clear that as Lara got older he drove her about as was needed. I do not doubt that he assisted with her homework and otherwise took an interest in her activities. However, I conclude that the bulk of the day to day care of Lara was, certainly when she was a small child and even in her teenage years, provided by the defendant. One matter that points to this is the plaintiff’s concession that matters relating to Lara’s eating and to her clothing were carried out by the defendant: see [47] b above. There is some further pointer in the short cross examination of Lara that her relations as to day to day matters were with her mother.

71 Furthermore, it seems to me that the probabilities are that the female partner would provide most of the housekeeping and child care time. I find the defendant’s evidence set out in [49] inherently probable and I accept it. I am not impressed by the submission that if the defendant was working long hours during the contract with Meriton this must mean that she could not have put more time than the plaintiff into household matters. Many women in the 21^st century work long hours in responsible jobs but remain the principal housekeepers.

72 For these reasons I conclude that the defendant’s contributions to homemaking and child care were considerably greater than those of the plaintiff, although I can put no precise percentage on this.

CONCLUSION

73 It is my conclusion on the above findings that the parties made equal financial contributions to the acquisition of the Bondi Junction property; that the defendant made no financial contribution to the acquisition of the Artarmon property; and that, although the plaintiff made some contribution to homemaking and child raising, the non financial contributions to the relationship in these regards of the defendant were considerably greater than his. Bearing in mind the lack of financial contributions to property greater than 50% of Bondi Junction; her greater contributions to homemaking and child care; the length of the relationship; and all the circumstances I have concluded that the defendant should receive out of the proceeds of the Bondi Junction property 62.5% rather than 50%. Otherwise the parties should be declared beneficially entitled to all property held by them respectively.

74 Short minutes can be brought in embodying this result. Any question of costs can be argued at that time.

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