Jones v Grech - [2001] NSWCA 208

No judgment structure available for this case.

Reported Decision:
(2001) 27 Fam LR 711
(2001) DFC 95-234

New South Wales

Court of Appeal

CITATION: JONES v. GRECH [2001] NSWCA 208

FILE NUMBER(S): CA 40167/2000

HEARING DATE(S): 06/04/2001

JUDGMENT DATE:
10 July 2001

PARTIES :

Linda Jones (Appellant)
Paul Grech (Respondent)

JUDGMENT OF: Powell JA at 1; Davies AJA at 21; Ipp AJA at 42

LOWER COURT JURISDICTION : Supreme Court - Equity Division

LOWER COURT
FILE NUMBER(S) : ED1598/99; ED1954/99

LOWER COURT
JUDICIAL OFFICER : Master McLaughlin

COUNSEL: Ms. D.M. Coulton (Appellant)
T.L.P. Hodgson (Respondent)

SOLICITORS: Vizzone Ruggero & Associates (Mascot) (Appellant)
Altobelli & Associates (Hurstville) (Respondent)

CATCHWORDS: FAMILY LAW - De facto relationships - Property adjustment order - Application for - When permitted - Evidence on - Commencement and determination of relationship - Contributions - Contributions made prior to commencement of relationship D

DECISION: Appeal allowed - for orders (by majority) see paras. 99-102.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40167/2000
ED 1598/99
ED 1954/99

POWELL JA

DAVIES AJA

IPP AJA

10 July 2001

JONES v. GRECH

JUDGMENT

1 POWELL JA: I regret to say that such difficulties as attend the present appeal have been brought about in no small measure by what I can only regard as the supreme disregard by the parties and their legal advisers - both at trial and on the hearing of the appeal - of significant provisions of the De facto Relationships Act 1984 ("the Act") as it was known at the time of the commencement of the proceedings, together with some fundamental principles applicable to this area of the law, which disregard appears to have led to a great deal of confusion of thought - on the part of the parties and their legal advisers - both at trial and on the hearing of the appeal - and on the part of Master McLaughlin - from whose decision this appeal has been brought - at trial and in his Judgment.

2 Although what I have written may be regarded by some as an overly harsh statement, it is to be recorded that the order which, in this appeal, the Appellant seeks to have set aside is one said to have been based upon the provisions of the Act, and that the first step towards establishing that, the Court has jurisdiction to make a property adjustment order involves establishing that at some time after the coming into operation of the Act, a de facto relationship had existed between the parties.

3 Despite the need for there to have been determined with some degree of precision whether there had been a relevant de facto relationship, or a series of relevant de facto relationships, between the parties, that was not done at trial. On the contrary, in the course of his Judgment, the Master was to write (RAB 50-51):

"7. At various times from late 1965 until August 1997 - that is, over a period of more than thirty-two years - the parties lived together or were otherwise in some form of relationship. The precise nature of that relationship (which at times was a de facto relationship of the nature described in section 3(1) of the De Facto Relationships Act, and at times was of a different, and somewhat lesser, status) was the subject of dispute between the parties. Similarly, the parties were in dispute as to the precise periods during which they cohabited.

8. It was not in dispute however, that at least for a period from 1985 to 1991 and for a period from 1993 until their final separation in August or September 1997 the parties lived together in a de facto relationship. It was not disputed that upon that final separation the defendant vacated the Chifley property, which had (subject to the interruption in their de facto relationship from 1991 to 1993) been their family home from the time of its acquisition. Since the final departure of the defendant from the Chifley property the plaintiff has continued to live in that residence.

9. At various times the parties cohabited at the residence of the defendant's mother (with whom the defendant was residing at the time when she and the plaintiff first met), and at other times they resided together in Housing Commission accommodation occupied by the defendant located variously at Liverpool and at Maroubra."

"22. It is not necessary, in my view, that I express concluded findings concerning whether or not a de facto relationship (or a relationship of some lesser nature) existed during each and every part of the period of thirty-five years during which the parties were associated with each other. There is no doubt that the parties not only cohabited but also were in a de facto relationship at the Kingsford property during various periods between 1973 and about 1985 (when, according to the defendant, on account of disputes between herself and the wife of her brother-in-law Frank Grech, the defendant left the Kingsford property). Further, there was no dispute that the parties cohabited in the Chifley property from mid-1985 until 1991, and that they again cohabited there from 1993 until their final separation in August 1997. There was no dispute between them that a de facto relationship obtained between the parties during each such period of cohabitation."

4 With great respect to the Master, these passages reflect a great deal of confusion of thought, into which, so it seems to me, the Master was led by the manner in which the trial before him appears to have been conducted and by the appalling state in which the evidence which was tendered at trial was left. Some simple examples of this can readily be given. In paragraph 9 of this Judgment the Master refers to the parties having "cohabited" at the residence of the Appellant's mother, a statement which appears to relate to a period between 1969 and 1972 and to have been derived from the following passage in an Affidavit sworn by the Respondent in August 1999 (RAB 26):

"4. During this period, I was living at home with my mum. The arrangement was that Paul would come and stay at my mother's home with me in my bedroom and my mother prepared the meals for both Paul and I. Usually, during this period, the plaintiff and I saw each other whereby he stayed overnight two nights per week"

resided together in Housing Commission accommodation occupied by

"10. On or about 1973 to early 1974, I moved into Housing Commission accommodation in Liverpool with both my children. During this period, the plaintiff did not provide for financial support to either myself or his child Paul. I could not live with Francis and his wife. I continued the relationship with Paul, but I lived in housing commission (sic) and he would come up three times a week.

11. For approximately 9 years, I resided in Liverpool with my children Paul and Lisa however, I continued a relationship with the Plaintiff. I received no financial support from Paul during this period. I would have to pay for all the household expenses including feeding him when he came to stay. Paul always did bring me meat. I never had to buy meat. "

5 The Master's statement in paragraph 22 of his Judgment that it was not necessary for him to express concluded findings concerning whether or not a de facto relationship (or a relationship of some lesser nature) existed during each and every part of the period of 35 years during which the parties were associated with each other, in my view reflected a lack of appreciation of what the provisions of the Act required to be established and, in particular, reflected a lack of appreciation of the need to determine whether there had been but one de facto relationship, or there had been a series of de facto relationships, between the parties and when that relationship, or each of that series of relationships, commenced and came to an end.

6 The comments which I have recorded above make it appropriate that I now set out those provisions of the De facto Relationships Act as they were at the time of the commencement of these proceedings. They were as follows:

"3. Definitions

(1) In this Act, except insofar as the context or subject matter otherwise indicates or requires:

………

'appointed day' means the day appointed and notified under s.2(2).

'de facto partner' means:

(a) in relation to a man, a woman who is living or has lived with a man as his wife on a bona fide domestic basis although not married to him, and

(b) in relation to a woman, a man who is living or has lived with the woman as her husband on a bona fide domestic basis although not married to her.

'de facto relationship' means the relationship between the de facto partners, being the relationship of living or having lived together as husband and wife on a bona fide domestic basis although not married to each other.

………

6. Application of Act

This Act (except Part V) does not apply to or in respect of:

(a) a de facto relationship which ceased before the appointed day, or

(b) a person in so far as he or she was a partner in a de facto relationship referred to in paragraph (a).

7. Other rights of de facto partners not affected by this Act.

Nothing in this Act derogates from or affects any right of a de facto partner to apply for any remedy or relief under any other Act or any other law.

………

14. Applications for orders under this Part.

(1) Subject to this Part, a de facto partner may apply to a court for an order under this Part for the adjustment of interests with respect to the property of the de facto partners or either of them or for the granting of maintenance, or both.

(2) An application referred to in subsection (1) may be made whether or not any other application for any remedy or relief is or may be made under this Act or any other Act or any other law.

………

17. Prerequisites for making of order - length of relationship etc.

(1) Except as provided by subsection (2), a court shall not make an order under this Part unless it is satisfied that the parties to the application have lived together in a de facto relationship for a period of not less than 2 years.

(2) A court may make an order under this part where it is satisfied:

………

(b) That the applicant has made substantial contributions of the kind referred to in section 20(1)(a) or (b) for which the applicant would otherwise not be adequately compensated if the order were not made.

………

and that the failure to make the order would result in serious injustice to the applicant.

18. Time limit for making applications.

(1) Except as provided by subsections (2) and (3), where de facto partners have ceased to live together as husband and wife on a bona fide domestic basis, an application to a court for an order under this Part shall be made before the expiration of the period of 2 years after the day on which they ceased, or last ceased, as the case may require to so live together.

(2) A court may, at any time after the expiration of the period referred to in subsection (1), grant leave to a de facto partner to apply to the court for an order under this Part … where the court is satisfied, having regard to such matters as it considers relevant, that greater hardship would be caused to the applicant if that leave were not granted than would be caused to the respondent if that leave were granted.

………

20. Application for adjustment

(1) On an application by a de facto partner for an order under this Part to adjust interests with respect to the property of the de facto partners or either of them, a court may make such order adjusting the interests of the partners in the property as to it seems just and equitable having regard to:

(a) the financial and non-financial contributions made directly or indirectly or on behalf of the de facto partners to the acquisition, conservation or improvement of any of the property of the partners or either of them or to the financial resources of the partners or either of them and

(b) the contributions, including any contributions made in the capacity of homemaker or parent, made by either of the de facto partners to the welfare of the other de facto partner or to the welfare of the family constituted by the partners and one or more of the following, namely:

(i) a child of the partners,

(ii) a child accepted by the partners or either of them into the household of the partners, whether or not the child is a child of either of the partners."

7 Although the Act did not, at the time of its coming into operation, or at the time of the commencement of these proceedings, contain any statement as to the matters to which it might be appropriate for a court concerned to deal with an application made pursuant to the provisions of s.20 of the Act have regard in determining whether or not a relevant de facto relationship had existed between the parties to the application, I had, first, in D v. McA [1986] DFC 95-030; (1986) 11 Fam LR 214 and, later, in Roy v. Sturgeon (1986) 11 NSWLR 454; 11 Fam LR 271 expressed the view, which was later adopted by other judges in the Equity Division dealing with applications under the Act and has since although not in identical words, in substance, been incorporated in s.4(2) of the Property (Relationships) Act 1984 (as it is now known) by amendments made by the Property (Relationships) Legislation Amendment Act 1999 when that latter Act came into operation on 7 June 1999, that, in determining whether, in any particular case, a de facto relationship had existed between the parties to an application under the Act, the court was required to make a value judgment having regard to a variety of factors relating to the particular relationship, those factors including, but not being limited to, the following:

(a) the duration of the relationship;

(b) the nature and extent of common residence;

(c) whether or not a sexual relationship existed;

(d) the degree of financial interdependence, and any arrangements for support, between or by the parties;

(e) the ownership, use and acquisition of property;

(f) the procreation of children;

(g) the care and support of children;

(h) the performance of household duties;

(i) the degree of mutual commitment and mutual support; and

(j) reputation and "public" aspects of the relationship.

8 Having regard, in particular, to the provisions of ss. 6, 18 of the Act as to the cesser of de facto relationship, one should note, here, what was said by Mahoney JA (as he then was) - with whom, on this aspect of the case, both Hope and McHugh JJA agreed - in Hibberson v. George (1988-1989) 12 Fam LR 725, 739-740:

"The Act came into effect on 1 July 1985. The learned judge held that it did not apply because, from May 1985, there did not exist the de facto relationship upon the basis of which the Act operated and it had no retrospective effect.

It was submitted to the learned judge, and the submission repeated here, that although the parties had lived apart from each other in separate homes from May 1985 onward, the relevant relationship had not ceased. The de facto relationship defined by s.3 of the Act is a relationship 'of living or having lived together as husband and wife on a bona fide domestic basis'. The submission was, in effect, that a relationship existed between them; that they were apart only until they decided whether the relationship should end or continue; and that the decision to end it did not occur until after 1 July 1985.

The learned judge decided against Ms. Hibberson in this regard. In my opinion, his conclusion was correct. What is involved is 'living … together as husband and wife on a bona fide domestic basis'. It is correct, as Mr. Hamilton QC has submitted, that the relevant relationship may continue notwithstanding that the parties are apart for example on holidays. And he referred to the law which was developed in the context of marriage upon the distinct question, viz, whether physical separation constituted desertion.

There is, of course, more to the relevant relationship than living in the same house. But there is, I think, a significant distinction between the relationship of marriage and the instant relationship. The relationship of marriage, being based in law, continues notwithstanding that all of the things for which it was created have ceased. Parties will live in the relationship of marriage notwithstanding that they are separated, without children, and without the exchange of the incident which the relationship normally involves. The essence of the present relationship lies, not in law, but in a de facto situation. I do not mean by this that cohabitation is essential to its continuance: holidays and the like show this. But where one party determines not to 'live together' with the other and in that sense keeps apart, the relationship ceases, even though it be merely, as it was suggested in the present case, to enable the one party or the other to decide whether it should continue."

9 It is convenient, here, to record that, in an Affidavit sworn by her on 18 August 1999, the Appellant deposed (inter alia) as follows:

"17. I cohabited in our premises together at 40 Eyre Street, Chifley with the Plaintiff and both Lisa and Paul until September, 1997 except for a period in 1991 when I left the premises for approximately one year to have time to think about the relationship. I remember that I left the premises for approximately one year. In the Defence it states two years, but I now recall that it was only one year. During this time we were still seeing each other, sleeping with each other, having sex with each other, the only difference was that I resided in Housing Commission (sic) at Maroubra during this time. It was only that I was having such a difficult time with Paul that I needed a break from living on a day to day basis with him. He had come to take me for granted. He would not help with cleaning, washing, come home at any time he wanted, would accuse me of having affairs with students that boarded at our home, threaten to shoot me, calling me a Lesbian. He was very abusive and I needed a physical break from him. I wanted him to learn that I did not want to be treated the way he did."

10 Given the provisions of ss. 6,18 of the Act and the views expressed by Mahoney JA in Hibberson v. George, it seems to me to be clear from the whole of the evidence that, for the purposes of the Act,there was not one single, albeit discontinuous, de facto relationship between the parties extending from 1965 to 1997, but two, albeit distinct, relevant de facto relationships, the first commencing in late 1984 or early 1985 shortly prior to, or at the time of, the acquisition of the property in Eyre Street, Chifley and ending in 1991, and the second commencing at some time in 1993 and ending in about September 1997.

11 As the former of those two de facto relationships ended in 1991, the provisions of s.18 of the Act would preclude that relationship providing a foundation for an application pursuant to s.20 of the Act unless leave to make such an application were sought and granted to one or other of the partners upon the basis that the Court considered that greater hardship would be caused to the partner so applying for leave if the leave were not granted and would be caused to the other partner if that leave were granted. In the present case, no such application was made and no such leave was granted.

12 In Roy v. Sturgeon supra, when dealing with a submission on behalf of the then plaintiff that she was entitled to have regard had to "contributions" made by her prior to the commencement of the relevant de facto relationship I said NSWLR 464-465; Fam LR 276-277:

"So far as Mr. Young's first submission is concerned, it seems to me that, although the provisions of s.20 do not expressly limit the court to having regard to 'contributions' made only during the course of the 'de facto relationship', nonetheless there are indications in the Act, and, in particular, in s.20 itself, that the range of relevant 'contributions' should be regarded as so limited. Thus, both s.15 and s.17 of the Act expressly direct attention to the period 'the parties to the application have lived together'. Even more to the point is the reference in s.20(1)(b) to a partner's 'contributions' as 'home maker or parent … to the welfare of the other … partner or to the welfare of the family …' a reference which seems to me to contain within its own terms a limitation as to the period during which any contributions might have been made.

Support for such an approach is provided, as well, by the context out of which the report, and, later, the Act, emerged, and as well by the evident policy of the Act that, while the court was to be authorised to provide a remedy in certain perceived areas of injustice, nonetheless the relationship between the de facto partners was not to be elevated to one equivalent in status to that of parties to a marriage. As to the former, it is to be observed that, while it is true that the provisions of the Act are directed towards more than 'getting over

Allen v. Snyder

' [1977] 2 NSWLR 685 nonetheless it is equally true (see report at 98-102, 146-151) to say that the provisions of s.20 of the Act have their origins in the criticisms made by judges of this Division of the Court (see eg,

Murray v. Heggs

(1980) 6 Fam LR 781;

Blanchfield v. Public Trustee

(Wootton J 10 April 1981 unreported));

Muschinski v. Dodds

(Waddell J as he then was, 1 July 1981, unreported) as to the injustices which might arise as the result of applying orthodox principles of law and equity to questions relating to the property of persons who have lived in a 'de facto relationship'.

The fact that it is not the policy of the Act to elevate to the status of a 'de facto partner' to that of a party to a marriage, would in my view, be enough to caution one against too readily embracing the decisions of the Family Court of Australia as to the matters to which that Court might legitimately have regard when dealing with applications under s.79 of the Family Law Act 1975 (Cth). That caution is, however, reinforced by the fact that there are differences between the language of s.20 of the Act on the one hand, and of s.75(2) and s.79(4) of the Family Law Act 1975 (Cth) on the other, which differences are, in my view, significant. Nor need I rely solely on my own view as to the significance of the inclusion, by reference, in s.79(4) of the Family Law Act 1975 (Cth) of the provisions of s.75(2)(k) and s.75(2)(o) of that Act, for, as the extract from the judgment in

In the Marriage of Olliver

which I set out below makes clear, the Full Court of the Family Court of Australia has relied on the latter provisions as a justification for having regard to any pre-marital cohabitation between the parties to an application under s.79 of the Family Law Act 1975 (Cth) - one adds that the similar provisions of s.25(1) of the Matrimonial Causes Act 1973 (UK) seem to be relied upon by the judges of the Family Division of the High Court of Justice in England for the same purpose: see

Kokosinski v. Kokosinski

and

Foley v. Foley

."

13 Although I am aware that two of the Judges of the Equity Division, and at least two of the Judges of the Family Court of Australia when exercising cross-vested jurisdiction, have declined to adopt the views which, in this respect, are expressed in Roy v. Sturgeon I remain of the views there expressed.

14 In its Judgment in In the Marriage of Olliver, the Full Court of the Family Court of Australia said (1978) 30 FLR 93, 138-140; (1978) FLC 90-499, 77,598-77,600:

"By virtue of s.79(4)(d) [(now 79(4)(e))] the matters referred to in s.75(2)(k), namely the duration of the marriage and the extent to which it has effected the earning capacity of the party seeking provision are matters to be taken into account. There is, therefore, no reason for reading in s.79(4)(b) an implied qualification that a contribution as a home maker and parent must be disregarded if it is has been made before the marriage.

Furthermore, under s.75(2)(o) the Court may take into account 'any fact or circumstances which in the opinion of the Court, the justice of the matter requires to be taken into account'. Lengthy cohabitation before the marriage may be such a fact or circumstances which in justice should be taken into account, particularly where, as here, children have been born and raised. Such lengthy cohabitation may have a bearing on a number of other matters specified in s.75(2). These matters include what the wife's reasonable standard of living should be; the lengthy cohabitation may have effected the earning capacity of the wife and it may also lend weight to a wife's claim that she desires to continue her life in a domestic role only."

15 As I have sought to point out, the statutory regime under the Act is different from that pertaining under the Family Law Act 1975 (Cth), a fact which has been referred to by this Court on a number of occasions when dealing with appeals in relation to applications under s.20 of the Act. Thus, in Black v. Black (1991) 15 Fam LR 109, Clarke JA, with whom Kirby P and Handley JA agreed, after referring to the terms of s.20 of the Act, said supra at 113:

"The section is in clear terms and sets out those matters to which the court is bound to have regard. In the use of the expression 'having regard to' and in the specification of the matters to which regard is to be had s.20 of the Act is significantly different from s.79 of the Family Law Act. For this reason it is quite inappropriate uncritically to apply an approach evident from decisions concerning the Family Law Act to applications under s.20."

Wallace v. Stanford

Dwyer v. Kaljo,

"I should say, however, that, with respect, I have difficulty with the conclusion expressed by Handley JA (at 744) that the power under s.20(1) of the De Facto Relationships Act 1984 to make a just order authorises orders to remedy any injustice the applicant would otherwise suffer because of his or her reasonable reliance on the relationship or his or her reasonable expectations from the relationship. These doubts spring from the more limited power described in the section when compared with s.79 of the Family Law Act 1975 (Cth) (see

Black v. Black

(1991) 15 Fam LR 109 at 113) and the choice of language in the section which derives or accords with the United Kingdom Law Commission, Report of Financial Provision in Matrimonial Proceedings (1968-69) par 69 directed to the laws inability to correct the imbalance which may be found to exist in property rights as between husband and wife;

Pettitt v. Pettitt

[1970] AC 777 at 811."

Evans v. Marmont

"… there is no mention in the Act of matters, relevant to means and needs, of the kind referred to in the Family Law Act, s.75(2)(a),(b), (d) and (f). We have earlier expressed our agreement with what Hodgson J said at first instance in

Dwyer v. Kaljo

about such matters and we have pointed out that Mahoney JA also agreed on appeal in that case. What is at present important, however, is that, if the broad submission of senior counsel for the appellant is correct, the Act is silent on a matter which in many cases would be of paramount importance to a general inquiry as to the justice and equity of a proposed order under s.20.

There is nothing in s.70 of the Act, of the kind found in s.75(2)(o) of the Family Law Act, which requires or entitles the Court to take into account, as a factor alongside those referred to in par (a) and par (b) 'any fact or circumstance which, in the opinion of the Court, the justice of the case requires to be taken into account'.

Most importantly, s.20 specifies, in par (a) and par (b), the matters to which the Court is to have regard. … However, par (a) and par (b) prescribe the focal points by reference to which the discretionary judgment as to what seems just and equitable must be made. They are not merely two matters, or groups of matters, which take there place amongst any other relevant consideration. It is by having regard to those matters that the Court may adjust property interests in a just and equitable manner."

16 In the circumstances, I proceed upon the bases, first, that the de facto relationship which founded the Respondent's application was that between 1993 and September 1997; and, second, that the only contributions to which the Court should have regard in determining what, if any, order should have been made pursuant to the provisions of s.20 of the Act were contributions made within that period.

17 The only item of property which appears to have been the subject of any dispute on the hearing before the Master was the property at Eyre Street, Chifley. That property, as I have earlier recorded, was acquired by the parties in 1985, the purchase price being made up of moneys provided by the Respondent from his own savings and moneys borrowed - but whether on the security of a mortgage over the property or not is not clear. The moneys which had been borrowed appear to have been repaid by the Respondent. The extensions to the property appear all to have been carried out by the Respondent prior to 1991, the cost of those extensions having been borne by the Respondent using the proceeds of his share in the property which he and his brother had owned at Kingsford. Despite the fact that the Respondent claimed to have paid the whole of the cost of acquiring the property at Eyre Street, Chifley, and the cost of the extensions to that property, and despite the fact that in an Affidavit which he swore in June 1999 the Respondent claimed that he did not intend to confer any beneficial interest upon the Appellant, the undoubted fact is that, in the proceedings which he was later to commence, he did not - as was open to him to do if that were correct - seek a declaration that the Appellant held her share in the property upon a resulting trust for him (see, for example, Rider v. Kidder (1805) 10 Ves. Jun. 360; 32 ER 884, Soar v. Foster (1858) 4 K & J 152; 70 ER 64; Allen v. Snyder [1977] 2 NSWLR 685; Napier v. Public Trustee (WA) (1980) 55 ALJR 1; 32 ALJR 153) nor - as was also open to him to have done - did he seek an order that the Appellant hold her share in the property, or some part of it, upon a constructive trust for him (see, for example, Muschinski v. Dodds (1985) 160 CLR 583; Baumgartner v. Baumgartner (1987) 164 CLR 137; 76 ALR 75), but he relied solely upon the provisions of s.20 of the Act. In these circumstances, so it seems to me, one must proceed upon the basis that the Respondent intended that the Appellant from the outset have a beneficial interest in the property.

18 Although, because of the state in which the evidence was left by the parties and the basis upon which the parties approached the questions for determination by the Court, the Master made no clear findings as to the respective contributions of the Appellant and the Respondent during the period from 1993 to 1997, there seems to be little reason to depart from the Master's overall conclusion (RAB 63) that the Respondent was the primary bread winner of the family and the Appellant had the primary responsibilities as a home maker and as a parent to the children. This being so, it seems to me that no order for the adjustment of property was called for in the circumstances.

19 This being so, it seems to me that, the Appellant's appeal from the orders made by the Master in the proceedings brought by the Respondent should be upheld; that, except to the extent of the declaration made by the Master paragraph 4 of the orders made by him in those proceedings (RAB 66), those ought to be dismissed; and that the Respondent should pay the Appellant's costs of the appeal and the proceedings below.

20 That leaves for consideration the proceedings brought by the Appellant herself, the orders sought in the Summons in which reflect an ignorance of, in particular, the provisions of s.66G(3)(a) of the Conveyancing Act 1919, and the evidence tendered in support of which (Blue AB 1) is not in accord with the practice which has invariably been followed in the Equity Division of the Court. The appeal in this regard should be upheld, and the matter remitted to the Equity Division of the Court so that evidence of the consent of two trustees and - if they not be registered liquidators or recognised trustees for the purposes of the Bankruptcy Act - as to their fitness to act as such might be filed and the appropriate orders under s.66G of the Conveyancing Act 1919 be made, the Respondent to the pay the Appellant's costs of the appeal and of the hearing below.

21 DAVIES AJA: The appellant, Linda Jones, and the respondent, Paul Grech, were living together in a de facto relationship when they finally separated in August or September 1997. At the time of separation, they were the proprietors as joint tenants of a home at 40 Eyre Street, Chifley, which was later valued at $610,000. By the date of the separation, the home was free of debt. They had few other assets.

22 The parties had had some form of a relationship since 1965. Their son, Paul, was born on 8 October 1972. In a different relationship, the appellant’s daughter, Lisa, had been born on 3 February 1971. Both children, after birth, lived with the appellant and, while the appellant and the respondent lived together, both children were treated as members of the household. The Master held that, over a period of more than thirty-two years, the parties lived together or were otherwise in some form of a relationship. Without resolving disputes in the evidence about earlier periods, the Master held that the parties lived together in a de facto relationship from 1985 to 1991 and again from 1993 to August or September 1997. The Master found that, during substantial parts of the time when they were not living under the same roof, it was the parties’ practice to spend nights together at the residence of one or other of them, usually the residence of the appellant.

23 After the final separation, the appellant sought, by way of summons, an order that the Chifley property be sold and that the proceeds be equally divided. The respondent countered that application with a statement of claim seeking an order under Division 2 of the De Facto Relationships Act, 1984 (“the Act”). The trial was conducted on the basis that the respondent’s application would provide a defence to the appellant’s application. No other defence to the appellant’s application was raised.

24 I agree with Ipp AJA that the application of s 20 of the Act, including the examination of the factors specified in s 20(1)(a) and (b), required the Master to look at events which occurred prior to the commencement of the last period of the de facto relationship. The actions of the parties must be placed into context and given weight and relevance according to the incidents of their relationship over time, including during any prior time when a relationship existed between them. As Gleeson CJ and McLelland CJ in Eq said in Evans v Marmont (1997) 42 NSWLR 70 at 75:-

“It would be unrealistic to attempt to evaluate contributions of the kinds referred to in par (a) and par (b) for the purpose of determining what is just and equitable having regard to those contributions, in isolation from the nature and incidents of the relationship as a whole …”

25 In McDonald v Stelzer [2000] NSWCA 302, Priestley JA held that Bergin J had been entitled to take into account, “matters very closely connected in subject matter, time and relevance to financial and non-financial contributions during the period of the full de facto relationship” provided that her Honour gave “some weight, but not fundamental weight” to such factors. I respectfully agree with his Honour’s remarks.

26 Moreover, the factors specified in s 20 may include actions which have taken place prior to the commencement of the period of relationship which gives rise to the jurisdiction of the court. Thus, one or both of the parties may have contributed to the acquisition, conservation or improvement of the subject property at an earlier time. One or both of the parties may then have contributed in the capacity of homemaker or parent to the welfare of the other de facto partner or to the welfare of the family constituted by the partners and a child of the partners or a child accepted by the partners into the household. These are factors which may require examination. In the present case, the matters to which the Master referred were, although of varying weight, relevant to the task which the Master was required to undertake.

27 The Master accepted the respondent’s evidence as to the circumstances in which the property was put into the joint names of himself and the appellant. That evidence appeared in paragraph 26 of the respondent’s affidavit which read, inter alia:-

“… I put this property in joint names of myself and the Defendant as a result of a conversation I had with the Defendant. She said:-

‘I don’t feel part of this house.’

I said:-

‘I will put your name on the house.’ ”

28 Paragraph 26 of the respondent’s affidavit went on to say:-

“In so doing, I did not intend to convey half of the property to her. I would not in retrospect have taken this course of action if I had appreciated the ramifications of doing this as I considered our relationship was so volatile and unstable.”

Charles Marshall Pty Ltd v Grimsley

Shephard v Cartwright

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.

30 Although s 20(2) provides that a court may make an order under subs (1) whether or not it has declared the title or rights of a de facto partner in respect of a property, the court should start with an understanding of the property interests of the parties for it is those interests which are to be adjusted. In a case such as the present, a simple case where the property in question is the family home and where both parties are on the title as joint tenants, it seems to me that the Court should, unless the issue as to title is raised, proceed upon the footing that the interests in the property to be adjusted are the interests as shown on the title. That starting point should have been adopted in the present case. The appellant had commenced proceedings seeking a sale of the property and an equal division of the proceeds, or equivalent order. No defence was raised that, absent the making of the discretionary order, the appellant was not entitled to a half interest in the property as joint tenant.

31 Thus, under s 20(1) of the Act, the Master was bound, before making an order on the respondent’s application, to satisfy himself that it was just and equitable to adjust the parties’ interests in the property in such a manner as to reduce the appellant’s share. The Master did not specifically hold that the appellant was entitled to a legal and beneficial interest as joint tenant in the property and his reasons for judgment do not express a finding that it was just and equitable to reduce the appellant’s half interest in the property. Nor do his reasons for judgment explain why it was just and equitable to do so.

32 The Act defined a “de facto relationship” as “the relationship between de facto partners, being the relationship of living or having lived together as husband and wife on a bona fide domestic basis although not married to each other”. Such a relationship usually involves a union of interests with the man and the woman contributing in their own ways to the benefit of the union and of the children, if any. It is not uncommon for the male member of such a union to be the primary income earner. It is not uncommon for the woman to be the primary homemaker and the partner who has primary care of the children. And it is not uncommon for the matrimonial home to be acquired in the joint names of both partners, for such an arrangement recognises both permanence, or relative permanence, in the relationship and also the interest which the partners have in the achievement of security and assets.

33 In Mallet v Mallet (1984) 156 CLR 605 at 635-636, Wilson J, after referring to a number of judgments of the Family Court of Australia in which that Court had adopted the notion of “equality is equity” as a convenient starting point to s 79(4)(b) of the Family Law Act, 1975 (Cth), went on to say:-

“In the earliest of these cases,

Rolfe

…, Evatt CJ referred to s 79(4)(b), saying:

‘The purpose of s 79(4)(b), in my opinion, is to ensure just and equitable treatment of a wife who has not earned income during the marriage, but who has contributed as a homemaker and parent to the property. A husband and father is free to earn income, purchase property and pay off the mortgage so long as his wife assumes the responsibility for the home and the children. Because of that responsibility she may earn no income or have only small earnings, but provided she makes her contribution to the home and to the family the Act clearly intends that her contribution should be recognized not in a token way but in a substantial way. While the parties reside together, the one earning and the other fulfilling responsibilities in the home, there is no reason to attach greater value to the contribution of one than to that of the other. This is the way they arrange their affairs and the contribution of each should be given equal value.’

With all respect, I agree with her Honour’s exposition of the purpose of the paragraph subject to one reservation. The Act requires that the contribution of a wife as a homemaker and parent be seen as an indirect contribution to the acquisition, conservation or improvement of the property of the parties regardless of where the legal ownership resides. The contribution must be assessed, not in any merely token way, but in terms of its true worth to the building up of the assets. However, equality will be the measure, other things being equal, only if the quality of the respective contributions of husband and wife, each judged by reference to their own sphere, are equal. The quality of the contribution made by a wife as homemaker or parent may vary enormously, from the inadequate to the adequate to the exceptionally good. She may be an admirable housewife in every way or she may fulfil little more than the minimum requirements. Similarly, the contribution of the breadwinner may vary enormously and deserves to be evaluated in comparison with that of the other party. It follows that it cannot be said of every case where the parties reside together that equal value must be attributed to the contribution of each. That will be appropriate only to the extent that the respective contributions of the parties are each made to an equivalent degree. What the Act requires is that in considering an order that is just and equitable the court shall ‘take into account’ any contribution made by a party in the capacity of homemaker or parent. It is a wide discretion which requires the court to assess the value of that contribution in terms of what is just and equitable in all the circumstances of a particular case. There can be no fixed rule of general application.”

34 The general thrust of his Honour’s exposition found support in the observations of other members of the Court: Mason J at pp 623-625, Deane J at pp 639-641 and Dawson J at pp 645-646. One point that their Honours made in relation to matrimonial relationships was that the relationship ordinarily involves “a practical union of both lives and property” and that the acquisition of assets, such as a matrimonial home, can be seen as representing “the fruits of a totality of efforts of wage earning, homemaking and mutual support” (per Deane J at pp 640-641). At p 625, Mason J pointed out that there may be an equality of contribution if “the efforts of the wife in her role were the equal of the husband in his”. However, the facts of the particular case must always be examined. The passage from the reasons of Wilson J set out above shows how this examination may be made.

35 The same general considerations apply to a de facto relationship, for that is a relationship of living together as husband and wife on a bona fide domestic basis. Such a relationship also ordinarily involves a practical union of lives and property. The two factors specified in s 20(1), financial and non-financial contributions and contributions made in the capacity of homemaker or parent, reflect the considerations to which their Honours gave weight in Mallet v Mallet.

36 I need not set out the facts in any detail. The Master summed up the parties’ contributions in this way:-

“In my conclusion the plaintiff was the primary breadwinner of the family. The defendant had the primary responsibilities as homemaker and as parent to the children. Those responsibilities were by no means insignificant. In consequence of the defendant accepting and carrying out the role of homemaker and parent, and contributing, to the extent that she was able throughout the various periods of her own employment, her earnings towards the upkeep of the household and towards the maintenance of the children, I am satisfied that the plaintiff was enabled to expend the major part of his earnings upon the acquisition and improvement firstly of the Kingsford property and, subsequently, of the Chifley property.”

37 The Master did not express any reason as to why the contributions of the appellant, as primary homemaker and carer of the children, should be given less weight than the contributions of the respondent, as primary income earner. I have already referred to the approval by Wilson J in Mallet v Mallet, at p 636, of the statement by Evatt CJ in In the Marriage of Rolfe that:-

“While the parties reside together, the one earning and the other fulfilling responsibilities in the home, there is no reason to attach greater value to the contribution of one than to that of the other. This is the way they arrange their affairs and the contribution of each should be given equal value.”

Mallet v Mallet

“No doubt such an approach is appropriate in those cases where the financial contribution of the husband does not extend beyond the provision of the family home and the acquisition of savings to provide support for both parties to the marriage in retirement.”

38 In the present case, the respondent’s financial contributions to property did not extend beyond the provision of the family home. This is not a case where the primary income earner had business talents which enabled him to develop valuable business assets. In this case, we are concerned only with the family home and with the circumstance that the appellant was the primary homemaker. The Master made no finding that the quality of the appellant’s homemaking was inadequate. There is nothing in his reasons which indicates that the appellant failed in some way to fulfil her role as homemaker and carer of the children. If anything, the facts found by the Master are to the contrary. The Master found that the appellant cared for the children, whether she was living with the respondent or not. He expressly found, contrary to a submission put on behalf of the respondent, that she expended all of her income in the support of the family.

39 In the absence of any reason (other than the value of the respondent’s financial contributions) being expressed by the Master as to why the appellant’s contributions should be assessed as being of less value than those of the respondent and in the absence of any explanation as to why it was just and equitable that the appellant’s interest in the home should be reduced or, to put it another way, why the respondent’s joint interest in the home did not sufficiently recognise and compensate for his contributions, I am of the view that the Master’s discretion totally miscarried.

40 In the circumstances, it is appropriate that the Court should exercise the discretion for itself. Having regard to the Master’s findings of fact, I am satisfied that the interests of the appellant and the respondent in the Chifley property, that is interests as joint tenants, adequately compensated them for their contributions of financial and otherwise, as specified in s 20(1)(a) and (b). Their contributions were of equal value, the respondent’s contributions being mainly those of principal income earner and those of the appellant being as principal homemaker and carer of the children. In these circumstances, no reason for making or adjusting the interests of the parties has been shown. Nor has it been shown that it is just and equitable to vary the interests which the parties have arranged.

41 I would dismiss the respondent’s application under the Act and would make an order on the appellant’s summons. I agree with the orders proposed by Ipp AJA.

42 IPP AJA: This is an appeal from a decision of Master McLaughlin involving two separate proceedings between Ms Linda Jones and Mr Paul Grech. Both concern, principally, 48 Eyre Street (“the Chifley property”), of which Ms Jones and Mr Grech were the registered owners as joint tenants.

43 In the proceedings first instituted, Ms Jones, in substance, sought a declaration that the Chifley property be sold and the proceeds be distributed equally between herself and Mr Grech.

44 By the later proceedings, Mr Grech sought orders pursuant to s 20 of the De Facto Relationships Act 1984 for the adjustment of the interests of himself and Ms Jones in the Chifley property. In effect, he claimed an order that Ms Jones transfer her interest in the Chifley property to him against payment of $25,000. He contended that the sum of $25,000 represented the value of the total contributions made by Ms Jones of the kind referred to in s 20 (1) of the Act.

45 By consent, the two proceedings were heard together. Master McLaughlin observed that the hearing consisted essentially of the resolution of Mr Grech’s claim for relief under the Act. That was because, as the learned Master put it, “a determination of that claim will have the practical effect of deciding also the claim of [Ms Jones] for the sale of the subject property”.

46 At the time of the hearing (February 2000), Mr Grech was aged 57 years and Ms Jones was 49. They had met in 1965 when Mr Grech was aged 22 and Ms Jones 15. In the late 1960’s they were engaged to be married but their engagement was terminated and they never married.

47 Mr Grech, in his statement of claim, claimed a declaration that he and Ms Jones lived in a de facto relationship for 6 weeks in 1972, from “early to mid-1983”, from “early to mid-1984”, from 1985 to 1991 and from 1993 to 1997. Ms Jones claimed that they had a de facto relationship over different and longer periods. Although, as the Master put it, “at various times from late 1965 until August 1997 - that is, over a period of more than 32 years - the parties lived together or were otherwise in some form of a relationship”, the precise periods during which they lived together in a de facto relationship were in dispute. It was, however, common ground that at least from 1985 to 1991, and from 1993 until their final separation in August or September 1997, the parties lived together in such a relationship.

48 Master McLaughlin said that it was not necessary for him to express concluded findings concerning whether or not a de facto relationship existed during each and every part of the period of 32 years during which the parties were associated with each other. He was content to deal with the matter on the basis that a statutory de facto relationship existed for a minimum of 11 years being the two admitted periods from 1985 to 1991 and from 1993 to 1997. He adopted this approach despite his acceptance that it was possible that such a relationship existed at other times during the 32 years the parties were associated. Neither party pleaded or appears to have argued that it was impermissible for the Master to have regard to the aggregate of the periods.

49 In October 1972, a son, Paul, was born to the parties. Ms Jones had an older daughter, Lisa, who had been born on 3 February 1971, to a different father. Whilst Mr Grech and Ms Jones lived together, Lisa and Paul resided with them and the two children were treated by them as members of their household. The Master held:

“For all practical purposes Lisa was treated as if she was a child of the parties.”

50 As there was a child of the parties, s 17(2)(a) of the Act was satisfied and the Court was entitled to make an order under Pt 3 of the Act. The relevant section in Pt 3 is s 20, which reads as follows:

“Application for adjustment

(1) On an application by a de facto partner for an order under this Part to adjust interests with respect to property of the de facto partners or either of them, a court may make such order adjusting the interests of the partners in the property as to it seems just and equitable having regard to:

(a) the financial and non-financial contributions made directly or indirectly by or on behalf of the de facto partners to the acquisition, conservation or improvement of any of the property of the partners or either of them or to the financial resources of the partners or either of them, and

(b) the contributions, including any contributions made in the capacity of homemaker or parent, made by either of the de facto partners to the welfare of the other de facto partner or to the welfare of the family constituted by the partners and one or more of the following, namely:

(i) a child of the partners.

(ii) a child accepted by the partners or either of them into the household of the partners, whether or not the child is a child of either of the partners.

(2) A court may make an order under subsection (1) in respect of property whether or not it has declared the title or rights of a de facto partner in respect of the property.”

51 As a further preliminary observation I would note that neither party suggested at the hearing or on appeal that s 6 of the Act operated so as to prevent the Act applying in any respect.

52 When the parties commenced their relationship in 1965, they had no assets other than their personal effects. When the de facto relationship terminated in 1997, the only asset of the parties, apart from their personal effects, consisted of their respective interests as joint tenants in the Chifley property, the value of which was agreed as being $610,000.

53 At the inception of their relationship, the parties lived together at the residence of Ms Jones’ mother. Afterwards, they resided together in Housing Commission accommodation. Later, they lived in a house in Botany Road, Kingsford together with Mr Grech’s brother, Frank Grech and Frank’s wife.

54 Mr Grech and Frank purchased the Kingsford property in about 1971 for $29,500. Master McLaughlin accepted that a de facto relationship between the parties commenced before Mr Grech acquired his interest in the Kingsford property (although, the period that then commenced did not form part of the 11 year aggregate to which he had regard).

55 Mr Grech expended considerable money, time and energy upon restoring and improving the Kingsford property. Mr Grech and Frank sold the Kingsford property in mid-1985 for about $230,000. It was then unencumbered and the proceeds of sale were divided equally between the two brothers, each receiving about $115,000. In the words of Master McLaughlin:

“At about the same time (or a little earlier) there was purchased in the names of [Mr Grech] and [Ms Jones] as joint tenants the property of 40 Eyre Street Chifley”.

56 It is not clear from the Master’s findings whether the Chifley property was acquired before the parties commenced living together in 1985 in a de facto relationship or whether it was acquired while that relationship endured. At the hearing, however, no point appears to have been taken by either party that the time at which the Chifley property was acquired was significant. All involved in the hearing appear to have accepted that the parties’ interests in the Chifley property were potentially subject to adjustment under s 20(1) of the Act. For reasons that I later give, I consider that they were correct in this respect.

57 Mr Grech purchased the Chifley property by utilising his own savings of $20,000 and borrowed funds of about $70,000. Of the sum of $115,000 that Mr Grech received from the sale of the Kingsford property, he used about $75,000 in renovating the Chifley property. Ms Jones assisted Mr Grech in the renovations but the extent of her contribution was in dispute. According to Mr Grech she helped only to paint one bedroom.

58 Ms Jones did not claim that she had made any direct financial contribution to the acquisition or improvement of either the Kingsford property or the Chifley property. She claimed, however, that, throughout the periods that the parties’ lived together, she was responsible for the purchase of food and other household items and bore the major responsibility for the expenses associated with the upbringing of the children. She asserted that she thereby enabled Mr Grech to use his earnings to acquire and improve the Kingsford property and, thereafter, the Chifley property.

59 Ms Jones was employed for various periods and in various occupations throughout the period of the parties association. There was considerable dispute as to the nature and periods of her employment. In those periods when she was not employed, she received a supporting parent’s pension. Master McLaughlin held that this period was “for possibly as long as 10 years”.

60 The learned Master had difficulty in making any definite finding as to the precise extent of Ms Jones’ financial contributions. Much of the employment asserted by her was of a part-time or casual nature or assisting her mother in cleaning work. The main problem in the fact finding exercise was that she produced only one document in support of the income she claimed she had received while being employed from time to time in various jobs from 1972 until 1997. Even the document that she produced was not satisfactory and its accuracy was disputed by Ms Jones herself.

61 Mr Grech was a butcher by occupation and worked as such throughout the period of the parties’ association, either as an employed butcher or as the proprietor of his own butchery business. He supplied all the meat for the household at no cost to Ms Jones.

62 From about 1988 until the parties finally separated in September 1997 they rented out rooms in the Chifley property to overseas students. Ms Jones contended that she cleaned the rooms and prepared the meals for the students. She said that sometimes there were as many as four in the house. According to Ms Jones, Mr Grech received and retained all the rent paid by the students for their rooms. Mr Grech however denied the extent of Ms Jones involvement in the cleaning of the rooms and the preparation of meals for the students. He also asserted that for a period of several months while he was absent from the Chifley property Ms Jones retained the rent for herself. The Master made no findings in regard to these disputes.

63 There was a conflict between the parties in regard to the extent to which Ms Jones assisted Mr Grech during the period from about 1981 or 1982 until late 1990 in his butcher shop which he was operating at Cabarita. The Master preferred the evidence of Mr Grech (which was supported by the evidence of one Charles Spiteri) who testified that any assistance that Ms Jones gave was irregular in occurrence and minimal in extent. Mr Grech made no payment to Ms Jones for her work in this regard.

64 Each of the parties contended that he or she had made other contributions of different kinds to various aspects of their de facto relationship. These matters were disputed and a nunmber were not the subject of factual findings by Master McLaughlin.

65 The Master said that there were a number of unsatisfactory aspects to the evidence of Mr Grech but he also considered that the evidence of Ms Jones had to be approached with caution. He concluded in this regard:

“It also appeared to me to be of significance, in approaching the evidence of [Ms Jones], that she chose not to place before the Court any evidence of a corroborative nature from either her daughter or her son, each of whom (as she agreed under cross-examination) was sitting with her in Court throughout the entirety of the hearing of the proceedings. I was invited to draw the inference that no evidence from either the daughter or son of [Ms Jones] would assist [Ms Jones]. It seems to me appropriate in the circumstances of this case that such an inference should be drawn.

Whilst I have considerable reservations concerning the reliance to be placed upon the evidence of each of the parties, my preference, where that evidence is in conflict on any significant issue is to prefer the evidence of [Mr Grech] to that of [Ms Jones].”

66 This approach had an important impact on the Master’s eventual conclusion, as it resulted in many of Ms Jones’ factual assertions concerning the nature and extent of her contributions being rejected.

67 Notwithstanding his preference for the testimony of Mr Grech, Master McLaughlin found that “[Ms Jones] was the person primarily responsible for fulfilling the role of homemaker and … she had the primary responsibility for the child of the relationship and for her own daughter, who during the periods of the de facto relationship were treated by [Mr Grech] as a child of the relationship.”

68 The Master held:

“In my conclusion [Mr Grech] was the primary breadwinner of the family. [Ms Jones] had the primary responsibilities as homemaker and as parent to the children. Those responsibilities were by no means insignificant. In consequence of [Ms Jones] accepting and carrying out the role of homemaker and parent, and contributing, to the extent that she was able throughout the various periods of her own employment, her earnings towards the upkeep of the household and towards the maintenance of the children, I am satisfied that [Mr Grech] was enabled to expend the major part of his earnings upon the acquisition and improvement firstly of the Kingsford property and, subsequently, of the Chifley property”.

69 The Master concluded, finally:

“…the contributions of [Ms Jones] to the relationship should be recognised by the payment by [Mr Grech] to [Ms Jones] of the sum of $100,000 in return for which [Ms Jones] should transfer to [Mr Grech] [Ms Jones’] interest in the Chifley property. In the event that within a specified period [Mr Grech] does not make such a payment to [Ms Jones], then the Chifley property must be sold and out of the proceeds of sale [Ms Jones] must receive $100,000 and [Mr Grech] will receive the nett balance of the proceeds of sale”.

70 It is not uncommon for parties to a de facto relationship to terminate their relationship and, thereafter, at a later date, to re-commence living in a de facto relationship. On occasions, the same parties may live in a de facto relationship over many intermittent periods. The question therefore arises whether, for the purposes of s 20(1), each one of the intermittent periods is to be regarded as constituting a separate and different de facto relationship, or whether the aggregate of the intermittent periods is to be considered as being one de facto relationship to which the Court should have regard.

71 In Fotheringham v Fotheringham, unreported, NSWCCA, 28 August 1998, this court was concerned with an appeal where Master Macready had held that where parties had had been together in two separate de facto relationships (that is, over two separate and interrupted periods of time) then provided an application for relief under s 20 was made within two years of the termination of the last period, the Court could have regard, without any leave being granted under s 18(2), to the aggregate of the two periods. Powell JA expressed the conclusion that the Master was wrong in this view, but, in any event, upheld the appeal by dealing with the contributions made during the aggregate of the two periods. The other two members of the Court did not consider the issue.

72 With respect, I have come to a different conclusion. In my opinion, the wording of s 18(1) compels the inference that Parliament intended the court, for the purposes of s 20(1), to have regard to the total period (comprising any separate periods) during which parties live together in a de facto relationship.

73 Section 18(1) provides:

“Except as provided by subsections (2) and (3), where de facto partners have ceased to live together as husband and wife on a bona fide domestic basis, an application to a court for an order under this Part shall be made before the expiration of the period of two years after the day on which they ceased, or last ceased, as the case may require, to so live together”.

74 In my view, in the light of s 18(1), the court, in having regard to contributions made under s 20, must take into account the aggregate of the periods during which the de facto partners have lived in a de facto relationship.

75 I consider that the policy underlying the Act leads to the same conclusion. It is sufficient to refer to the report of the New South Wales Law Reform Commission commented upon as follows by Gleeson CJ and McLelland CJ in Eq in Evans vMarmont (1997) 42 NSWLR 70 (at 81):

“In par 7.42 of the report the Commission suggested that the courts should be given an ‘adjustive jurisdiction’ to alter property rights, taking into account contributions of a kind which the current law did not adequately recognise. In par 7.43 the Commission said:

‘… Specifically, the law fails to give sufficient recognition to two kinds of contribution to a de facto relationship:

· indirect financial and non-financial contributions by one partner to the acquisition, conservation or improvement of assets such as contributions to the family’s household expenses which assist the other partner to acquire assets in his or her own name, and

· financial and non-financial contributions by one partner to the welfare of the other partner or to the children of the relationship, including contributions made in the capacity of homemaker and parent.

This failure leads to injustice because it has the effect of permitting a de facto partner to be enriched at the expense of the contributions, whether financial or non-financial, made by the other partner. In a sense, the partner making the contributions can be said to have ‘earned’ an entitlement to a beneficial interest in property of the other partner. The injustice is equally stark whether the contribution directly increases the value of the property in dispute, or is a contribution to the well-being of the family which frees the other partner to earn income and accumulate assets. We think that injustice of this kind should be remedied.’

In par 7.44 the Commission recommended that legislation should be enacted to allow such contributions to be taken into account.

A comparison of the terms of those paragraphs with the language of s 20 of the Act indicates the purposes of the legislation.”

76 The purpose of the Act is remedial. It is intended to remedy injustice, inter alia, because the law prior to the Act had “the effect of permitting a de facto partner to be enriched at the expense of the contributions, whether financial or non-financial, made by the other partner.” For that intention to be adequately fulfilled, it is necessary, in my view, for the contributions made by a de facto partner to be assessed by reference to the entire period of the de facto relationship, irrespective of whether it is made up of a series of broken or intermittent periods or whether it is constituted by one continuous period of cohabitation.

77 There is also a question as to the relevance and treatment of contributions made prior to the commencement of the de facto relationship and after its termination. This is an issue that was canvassed during argument on appeal.

78 In Roy v Sturgeon (1986) 11 NSWLR 454 Powell J concluded (at 466) that it is not open to the court, when dealing with applications under s 20, to have regard to contributions made prior to the commencement of the de facto relationship.

79 In Foster v Evans, unreported, SCNSW, 31 October 1997, however, Bryson J did not follow this approach. His Honour said:

“In my respectful view para 20(1)(b) does not contain within its own terms a limitation to the period during which there was a de facto relationship as the period during which any contributions to the welfare of the family might have been made. … It is inherently unlikely but it is not impossible and contributions of kinds referred to in paras (a) and (b) might be made to the property financial resources of welfare of another [sic-the other] de facto partner after the relationship ended: people sometimes care for former partners. The possibility of a contribution to the welfare of a family including a child of the partners after the de facto relationship itself has ended can be clearly seen. I do not see what purpose would be served by limiting the contributions to family welfare which may be considered so as to exclude contributions made after a separation. There is to my reading no expression in subsection 20(1) of an intention to limit the time at which contributions are to be made.”

“I respectfully differ from Powell J’s obiter dictum about the meaning of para 20(1)(b). In my opinion it is not required that a contribution under para 21(1)(b)[sic - 20(1)(b)] be made during the relationship”.

80 In Griffiths and Brodigan (1995) 20 Fam LR 822 Chisholm J, exercising cross-vested jurisdiction, considered an application for an order under s 20. His Honour also declined to follow Roy v Sturgeon and held that contributions under s 20 could include contributions made before the commencement of the de facto relationship. In Fuller v Taaffe (1997) 23 Fam LR 702 Rourke J, also exercising cross-vested legislation in an application for relief under s 20, adopted the same approach as Chisholm J in Griffiths and Brodigan and held that contributions made by the parties after the de facto relationship had terminated were relevant to be taken into account under s 20.

81 McDonald v Stelzer [2000] NSWCA 302 is determinative on the issue as to whether the court may have regard to contributions made before the de facto relationship commenced. At first instance Bergin J referred to Griffiths and Brodigan and said that she would take into account the nature of the relationship of the parties prior to the de facto relationship in reaching her conclusion as to what was just and equitable. The appellant submitted that her Honour erred in this respect. Sheller JA (with whom Handley JA agreed) upheld the approach of Bergin J, saying:

“I am not persuaded that her Honour erred in reaching her decision”.

“…in the circumstances of the present case, if Bergin J did take into account in reaching her conclusion any circumstances of or related to the relationship between the parties which occurred before April 1994, I would not think that that vitiated her decision”.

82 In my opinion, there is no difference in principle between contributions made before the de facto relationship commenced and those made thereafter. The court may have regard to both.

83 Contributions of the kind referred to in s 20(1)(a) and s20(1)(b), to which the Court is required to have regard, can only be assessed if the precise period during which the de facto relationship existed is known. By not determining and “having regard” to all the periods over the 32 years in question during which Mr Grech and Ms Jones lived together in a de facto relationship, the Master failed to take into account all the contributions of the kind referred in s 20(1) that each made. His omission to consider whether any relevant contributions were made before or after each relevant period comprising the aggregate de facto relationship, and to have regard to any such contributions, is a further flaw in his overall evaluation.

84 In the circumstances, the determination made by the Master can not be said to be accurate or reliable.

85 Next, the Master, in concluding that he would prefer the evidence of Mr Grech to Ms Jones, considered that it was significant that Ms Jones sought not to call either her daughter or her son who were sitting in Court at the time to corroborate her testimony. In my view no inference whatever should have been drawn from this omission. Two points can be made in this respect.

86 Firstly, there were good family reasons for Ms Jones’ decision not to call the children. The potential harm to a child who is called by one parent to testify against another is obvious. Moreover, children would naturally be unwilling to have to choose, in public, between parents and give evidence for one against another. In these circumstances, the decision by Ms Jones not to call the children to testify was likely to have been motivated by reasons that had nothing to do with the content of their evidence. In this regard, although Mr Grech was not Lisa’s father, he had for many years treated her as if he were. There was just as much incentive of the kind that I have described for Ms Jones not to call Lisa as a witness as there was for her to refrain from calling Paul to testify.

87 Secondly, Lisa and Paul were equally available to Mr Grech to call as witnesses, but he, too, did not call them.

88 In assessing the parties respective contributions, the Master weighed in the balance the fact that, throughout the de facto relationship, “[Ms Jones] and her children had the benefit in living in residences which had been acquired by and paid for by [Mr Grech] and towards the acquisition of which [Ms Jones] had made no direct financial contribution”. This is a consideration which should not have been taken into account as it involves double counting. The Master had taken into account the fact that Mr Grech had paid for the properties concerned. He was required to weigh against that the contributions of a different kind made by Ms Jones. He could not discount those by again taking into account the fact that Mr Grech had paid for the properties.

89 Lastly, on this aspect, the Master erred, in my view, in failing to give due weight to the fact that Ms Jones owned the Chifley property as a joint tenant.

90 Ms Jones admittedly held a legal interest in the property and she contended that she was a beneficial owner of an undivided half-share in the property. While Mr Grech did not admit these allegations, the only way he sought to refute them was by seeking an adjustment of interests under s 20 of the Act. In other words, he did not assert that he was entitled to Ms Jones’ interest by reason of a resulting trust or a constructive trust. This indeed was not an issue at the hearing.

91 Of course, in the circumstances, it was open to the Master to make an order under s 20(1) adjusting Ms Jones’ interest in the Chifley property without finding that there was a resulting trust or a constructive trust in favour of Mr Grech. But in the light of the way the matters proceeded, it was incumbent upon the Master to commence the determination of whether an order should be made under s 20(1) (and the terms of such an order), from the standpoint that Ms Jones was the legal and equitable owner of an undivided half-share in the property. It was then for the Master to determine whether Ms Jones’ interest should be adjusted as to him seemed just and equitable having regard to the matters referred to in s 20(1)(a) and (b).

92 Without a resulting or constructive trust having been pleaded, or found, no assumption could be made that Ms Jones only held legal title to a half-share in the Chifley property and had no equitable interest therein: Del Gallo v Frederiksen (2001) ADR 95-230 at 77,292-77,293 per Heydon JA.

93 In the circumstances, I consider, with respect, that the Master made a number of errors in the exercise of his discretion and his decision cannot stand.

94 Ordinarily, the consequence of this conclusion would be that a re-hearing would have to be ordered. I have come to the conclusion, however, that, on the admitted facts and the findings of the Master in favour of Mr Grech, flawed as they are in the respects I have indicated, Ms Jones is entitled to succeed in her claim. Therefore, there is no need to order a new hearing and orders should be made as claimed by Ms Jones. I set out below the reasoning which leads me to this conclusion.

95 The relevant admitted facts and findings are as follows

(a) The parties were admittedly in a de facto relationship within the meaning of the Act for at least an aggregate period of 11 years, commencing in 1985.

(b) In 1985 Mr Grech purchased the Chifley property in the names of the two parties as joint tenants for the sum of some $90,000. Thereafter, Mr Grech spent up to $75,000 in renovating the Chifley property.

(c) At the time of the hearing, the value of the Chifley property was $610,000.

(d) The $75,000 used in renovations was derived from the sale of the Kingsford property. Mr Grech had expended considerable money, time and physical energy in restoring and improving the Kingsford property.

(e) By so purchasing the Chifley property, Mr Grech had constituted Ms Jones the legal and beneficial owner of an undivided half-share in the property (Mr Grech not having sought to prove otherwise at the trial, as I have explained). The inference is that he intended to give her the half-share.

(f) During the period of 11 years in question, Ms Jones was the person primarily responsible for fulfilling the role of homemaker in the Grech/Jones household and she had the primary responsibility for the two children.

(g) Ms Jones carried out the role of homemaker and parent and, to the extent that she was able, throughout the various periods of her own employment, contributed her earnings towards the upkeep of the household and towards the maintenance of the children.

(h) Ms Jones made contributions to a relatively insignificant degree to Mr Grech’s butcher shop, to the income derived from the Chifley property and to other areas of the parties life as de facto partners.

96 The question is, in the light of the above facts, is it just and equitable to make an adjustment to the undivided half share that each party held in the Chifley property.

97 On the findings of Master McLaughlin, throughout the aggregate period during which the parties lived in a de facto relationship, Ms Jones devoted all her energies to the welfare of Mr Grech and the two children, that is, the common household. Her contributions in this regard were both financial and non-financial. The inference to be drawn from the findings is that she could not have contributed more, financially, than she did, and she contributed all that she could as homemaker and parent. I agree with the sentiments expressed by Beazley JA in Gazzard v Winders (1998) DFC 95-209 concerning the evaluation of contributions made to a relationship by a female de facto partner, who works as hard as the male partner but earns less.

98 Having due regard to the respective contributions made by the parties, I would conclude that it is simply not possible to say that the contributions made by Mr Grech outweigh those made by Ms Jones. In the circumstances, I do not think that it could be said to be just and equitable to make any order adjusting the interests of Ms Jones in the Chifley property.

99 Accordingly, I would propose that the appeal be upheld, the orders made by the learned Master be set aside, Mr Grech’s claim for relief under the Act be dismissed, and an order be made that the Chifley property be sold and the nett proceeds be divided equally between Ms Jones and Mr Grech.

100 No submissions were made to us regarding the mechanism whereby the sale of the Chifley property was to be effected. I think the parties should have an opportunity of agreeing upon this mechanism. If the parties are unable to agree upon appropriate terms then I would propose that orders be made remitting the matter to the Equity Division of this Court to ensure that the provisions of s 66G(3)(a) of the Conveyancing Act 1919 are complied with (see in this regard para 20 of the judgment of Powell JA).

101 In the circumstances, the parties should bring in short agreed minutes within 21 days of this judgment dealing with the sale of the Chifley property.

102 I would order that Mr Grech pay the costs of both sets of proceedings below and of the appeal.

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Citations

Jones v Grech [2001] NSWCA 208

Most Recent Citation

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464

Davis v Davis [2024] NSWCA 222

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Calverley v Green [1984] HCA 81

Muschinski v Dodds [1985] HCA 78

Bathurst City Council v PWC Properties Pty Ltd [1998] HCA 59

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CITATION:	JONES v. GRECH [2001] NSWCA 208
FILE NUMBER(S):	CA 40167/2000
HEARING DATE(S):	06/04/2001
JUDGMENT DATE:	10 July 2001
PARTIES :	Linda Jones (Appellant) Paul Grech (Respondent)
JUDGMENT OF:	Powell JA at 1; Davies AJA at 21; Ipp AJA at 42

LOWER COURT JURISDICTION :	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S) :	ED1598/99; ED1954/99
LOWER COURT JUDICIAL OFFICER :	Master McLaughlin

COUNSEL:	Ms. D.M. Coulton (Appellant) T.L.P. Hodgson (Respondent)
SOLICITORS:	Vizzone Ruggero & Associates (Mascot) (Appellant) Altobelli & Associates (Hurstville) (Respondent)
CATCHWORDS:	FAMILY LAW - De facto relationships - Property adjustment order - Application for - When permitted - Evidence on - Commencement and determination of relationship - Contributions - Contributions made prior to commencement of relationship D
DECISION:	Appeal allowed - for orders (by majority) see paras. 99-102.