Picken v Boxall - [2005] SADC 7

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
PICKEN v BOXALL
Judgment of Her Honour Judge Simpson
9 February 2005
FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS - ADJUSTMENT OF PROPERTY INTERESTS
De Facto Relationship of more than 6 years - Division of property - Acquisition of assets by the defendant without financial contribution by the plaintiff - Inadequate evidence of plaintiff's financial contribution to the parties' financial resources - Plaintiff's contribution mainly to maintenance and improvement of the defendant's assets and assistance in the care of the defendant's children - Order that the defendant pay to the plaintiff a lump sum of $90,500.
De Facto Relationships Act 1996 ss 9, 10, 11(1), 12, referred to.
Giorginis v Kastrati and Another (1988) 49 SASR 371, applied.
Hogg v Roberts (2003) 87 SASR 248; Evans v Marmont (1997) 42 NSWLR 70; Parker v Parker (1993) 16 Fam LR 863; Theodoropoulos v Theodosiou (1995) 38 NSWLR 424; Davey v Lee (1989) 13 Fam LR 688; Norbis v Norbis (1985-1986) 161 CLR 513; Arnold v Dalton (2002) 84 SASR 482; Mallet v Mallet (1984) 156 CLR 605, considered.

PICKEN v BOXALL
[2005] SADC 7

The plaintiff, John Morris Picken, brought an application on 23 May 2002, claiming relief against the defendant, Deborah Boxall, pursuant to section 9 of the De Facto Relationships Act 1996 (“the Act”).
In particular, the plaintiff sought orders as follows:
(a)That the defendant pay to the plaintiff such sum as is appropriate taking into account her assets and financial resources;
(b)That the defendant forthwith return to the plaintiff the following items;
(i) All saddlery, harnesses and other equipment owned by the plaintiff or purchased by the plaintiff during the course of the relationship;
(ii) All power tools, fencing tools and other equipment owned by the plaintiff at the commencement of the relationship or acquired by him during their relationship;
(iii) All horses on her property belonging to the plaintiff.
Section 9 of the Act relevantly provides:
“(1) After a de facto relationship ends, either of the de facto partners may apply to a court for the division of property.
(2) However, an application for the division of property may only be made if--
(a)    the applicant or respondent is resident in the State when the application is made; and
(b)    the de facto partners were resident in the State for the whole or a substantial part of the period of the relationship; and
(c)    the de facto relationship existed for at least three years or there is a child of the de facto partners.
(3) An application for the division of property must be made within one year after the end of the de facto relationship unless the court, after considering the interests of both de facto partners, is satisfied that extension of this period of limitation is necessary to avoid serious injustice to the applicant.”
There was no dispute:
·that the relationship between the plaintiff and the defendant was a de facto relationship as defined in section 3 of the Act, i.e., although not legally married to each other, the parties were living together on a genuine domestic basis as husband and wife; or
·that the parties were resident in South Australia during the whole of the period of their relationship and when the application was made; or
·that the relationship had existed for at least three years.
On an application for the division of property, pursuant to section 10 of the Act, the court may make orders it considers necessary to divide the property of either or both the de facto partners between them in a way that is just and equitable.   The court may make orders, for example, for:
(a)    the transfer of property from one de facto partner to the   other; or
(b)    the sale of property and the division of the net proceeds between the de facto partners in proportions decided by the court; or
(c)    the payment by one de facto partner of a lump sum to the other.
The relevant considerations are primarily determined by the provisions of the legislation. Section 11(1) provides:
“In deciding whether to make an order for the division of property under this Part, and if so the terms of the order, the court--
(a) must consider the financial and non-financial contributions made directly or indirectly by or on behalf of the de facto partners to--
(i)the acquisition, conservation or improvement of property of either or both partners; or
(ii) the financial resources of either or both partners; and
(b)    must consider the contributions (including homemaking or parenting contributions) made by either of the de facto partners to the other partner or to children of the partners or either of them; and
(c)    must have regard to the terms of any relevant cohabitation agreement; and
(d)    may have regard to other relevant matters.”
There was no cohabitation agreement in this case.
Pursuant to section 12, the court must (as far as practicable) finally resolve questions about the division of property between the de facto partners and avoid further proceedings between them.
The defendant by her counsel accepted that the plaintiff was entitled to some relief, although submitted that any relief granted should be modest.
The Witnesses
The plaintiff, the defendant and the defendant’s accountant gave evidence at the hearing of the application. In the course of his giving evidence, I formed an impression of the plaintiff which has resulted in my accepting his evidence, but with some material qualifications. In my opinion, the plaintiff presented as a person who, perhaps because of his background and the sort of employment he has known, has had a very casual approach to earnings and to financial matters generally. He was obviously more comfortable giving evidence on topics to do with his practical experience in farming and with horses, than on the topic of his finances. In giving evidence, the plaintiff was unclear about the financial contributions he had made in the course of his relationship with the defendant. In my opinion, he tended to exaggerate the amount of money at his disposal during the relationship. That is understandable in the circumstances of the litigation. However, the plaintiff’s evidence regarding earnings from employment, or work done on his own account, in my opinion, required careful scrutiny. Much of it was unsatisfactory, in that the plaintiff was unable to give details, or produce relevant documents, regarding the generation of income. The plaintiff’s evidence regarding his earnings and his financial contribution to the household of which he and the defendant were part for a period of nearly seven years, was vague and at times, inconsistent.
I have had regard to what was said by the Full Court in Giorginis v Kastratiand Another ((1988) 49 SASR 371). Although that case was a claim for damages for personal injury sustained in a motor vehicle accident, the principles, in my opinion, are relevant to this application. The extent to which the plaintiff, by his earnings, claimed to have made a financial contribution during the relationship was a major issue. It follows that it could only be to the advantage of the plaintiff to produce the best evidence available in support of his claim. Von Doussa J said at 375:
“If a plaintiff attempts to give oral evidence on these topics from memory, unaided by records which are in his possession or power, he invites the opposing party, and the court, to question his evidence. If the records are lost or destroyed, it behoves the plaintiff to obtain the information from the sources which lie in his power, or to establish that the information cannot any longer be obtained. Such information can usually be obtained from the Australian Taxation Office, employers, parties with whom the plaintiff has contracted, banking records and so on.”
(King CJ and Legoe J agreeing at 379)
The plaintiff gave minimal evidence in chief about his income. He produced no financial records and apart from a Notice of Assessment of income tax for the year ended 30 June 2001 and a PAYG Payment Summary for the year ended 30 June 2002, he tendered no income tax documents and called no other evidence, e.g., from employers or parties with whom he had contracted, relevant to the period of the relationship with the defendant, in support of his claim.
The plaintiff could not recall if he had filed any tax returns while living with the defendant. The plaintiff thought that the defendant’s accountant might have prepared a tax return for him for the year ended 30 June 2000. He had not asked the accountant if he had any income tax information for the purposes of the case. The plaintiff said that he always left it to the defendant to do. He had been asked to get information for the purposes of the case, but thought what he had was enough.
The defendant, on the other hand, clearly approached money matters carefully. She owned the major assets, retained the responsibility for the household expenses and never relinquished the control of her own finances. She was careful to keep records and she sought professional advice.
The defendant, in giving her evidence, appeared in my opinion, at times to overemphasise the deficiencies as she saw them in the contribution admittedly made by the plaintiff to maintain and improve property and to the care of the defendant’s two children, and to be unwilling to acknowledge any financial contribution from the plaintiff to the household.
In considering the evidence, I have made an allowance for the tendency I perceived on the part of the plaintiff on the one hand to exaggerate his financial contribution in particular during the relationship and, on the part of the defendant on the other hand, inappropriately to deny altogether or to minimise that and other contributions made by the plaintiff.
That is not to say that I formed an impression that either the plaintiff or the defendant were deliberately exaggerating or not telling the truth. The strong impression associated with their evidence was rather that the memory of the relationship, and the contributions they each had made to it, as they saw it, had been coloured by the circumstances of its eventual deterioration and termination.
The defendant also called her accountant, Mr Penhall, whose evidence was given in a straightforward and professional manner. I accept his evidence.
Approach to the Application
In considering the application, I have found it useful to approach it in the following stages:
1.identify and value the assets of the parties, as at the time of the hearing, having some regard where relevant, to assets as at the time of separation of the parties;
2.determine what contributions have been made by each partner to property, financial resources, each other and children:
3.determine whether in the circumstances the contributions of the plaintiff have been sufficiently recognised and compensated for, bearing in mind that contributions of the kind referred to in s11(1)(b) may involve shared activities or reciprocal benefits and are likely to be incapable of evaluation in monetary terms;
4.consider any other matters, relevant to a just and equitable division of property;
5.make the appropriate adjustment, having regard to what is just and equitable.
(see Hogg v Roberts (2003) 87 SASR 248 at 250-251; Evans v Marmont (1997) 42 NSWLR 70 at 75-76; Parker v Parker (1993) 16 Fam LR 863 at 870, 874; Theodoropoulos v Theodosiou (1995) 38 NSWLR 424 at 432; Davey v Lee (1989) 13 Fam LR 688 at 689)
The Assets of the Parties
Under section 3 of the Act, “property" of a person includes:
“(a) a prospective entitlement or benefit under a superannuation or retirement benefit scheme;
(b) property held under a discretionary trust that could, under the terms of the trust, be vested in the person or applied for the person's benefit;
(c) property over which the person has a direct or indirect power of disposition and which may be used or applied for the person's benefit;
(d) any other valuable benefit.”
In this case, there was no issue regarding the identification or value of the assets of the parties. A Schedule of Agreed Assets of the Parties was handed up and is set out below:

Agreed Assets of the Parties

At Separation          At Trial
  $   $
Real Estate
32 Murray Street, Strathalbyn  190,000
Unit 2, 22 Tusmore Avenue
Leabrook  121,250
(half interest held by defendant)
Hawthorne Park
Cnr Adelaide & Burnside Roads,
Strathalbyn   225,000
(half interest held by defendant)
Shares
Commonwealth Bank (256@$32.19)              8,240
Coles Myer (3883@$8.62)   33,471
Cash
Defendant’s National Australia Bank
Cash Management Account         93,948                 83,000
Cheque Account  40
Tax Account           7,705                  3,398 (28.12.02)
Motor Vehicles
Ford Courier (1989)   2,700
Daihatsu   4,350
Mitsubishi Truck   6,000

Plaintiff’s Tax Refund Cheque  5,070
Superannuation   987*
(*incorrectly listed as $978 in Schedule)
Plaintiff’s Bank Account  not known
Bedford Truck*  (300)
(*returned to plaintiff by agreement and left out of account)

Total $698,761 $678,436

At trial, the parties agreed that the Bedford Truck and certain items of personal property, including the items referred to in paragraph (b)(i) and (ii) of the plaintiff’s claim for relief, were to be delivered to the plaintiff by the defendant. In particular, the items to be returned to the plaintiff by the defendant were:
·clothing and personal items
·all saddles (except the saddle given by the plaintiff to the defendant’s daughter)
·leather sewing machine (if located)
·air compressor
·plaintiff’s tools
·fridge
·Queen (or double) size bed
·gold watch (if located)
·brief case
·Bedford truck
·painting
·shearing plant
·jinker
·car fridge
·plaintiff’s books
·cooking pots (large)
The parties agreed that those items, as well as personal items retained by the parties respectively, should be left out of account in the proceedings. The plaintiff abandoned the claim for the return of his horses remaining on the defendant’s property, as it was accepted that any horses belonging to the plaintiff, left on the defendant’s property at the time of separation of the parties, had been sold.
There was some evidence in relation to maintenance and repair work the plaintiff had done at a property called Waverley Park, situated at Old Bull Creek Road, Strathalbyn. The property is held in trust for the defendant’s children. It was agreed between the parties at trial that no evidence relating to that property was relevant to the application.
Contributions Made by the Parties
The plaintiff was born on the 29^th December 1949 in Casterton, Victoria. He was one of six children. The plaintiff’s parents operated a farm in the area and the plaintiff has worked in farming throughout his adult life, after leaving school at the age of fifteen.
The plaintiff first worked as a contract drover in the Western Districts of Victoria and the southeast of South Australia. Between droving jobs, he worked in the livestock industry as a livestock buyer. More recently, the plaintiff has worked at the rural properties known as Invercauld and Reynolds Park. His work involved mustering, the operation of farm machinery, pasture management, including renovating pasture for livestock, stock breeding programs and the selection of livestock. He has always had a particular interest in working with horses.
The defendant was born on 21 November 1954. She first met the plaintiff in around September or October 1994. At the time they met, the plaintiff was staying with friends at Verdun. The defendant was living at the property at 32 Murray Street, Strathalbyn, with her two children; Grant, who was born on 13 January 1985 and Fiona, who was born on 3 May 1986. The plaintiff moved in to live with the defendant and her children a few months after they met.
There was a disagreement between the plaintiff and the defendant as to when the plaintiff moved in to live with the defendant and her children. The plaintiff said that he moved in with the defendant in November 1994, at the time of the defendant’s 40^th birthday. The defendant said that the plaintiff stayed at her home over Christmas 1994, but did not move into her house until her son’s 10^th birthday, on 13 January 1995. The precise time at which the plaintiff and the defendant began living together is not material and I have not found it necessary to resolve the issue. The defendant accepted that she and the plaintiff were in a relationship in which they were not legally married to each other, but were living together on a genuine domestic basis as husband and wife, over a period of nearly seven years.
When she met the plaintiff, the defendant owned her own home and was operating a business in Strathalbyn, buying and selling antique furniture. She said that she was not able to support herself from the business and she received no maintenance payments from the children’s father towards their support. It appears from her taxation returns that the business was running at a loss, although I infer that she received some benefit from claiming expenses, such as motor vehicle expenses, through the business. Her only income at that time was the sole parent’s pension of around $8000 per year.
In his evidence in chief, the plaintiff estimated his earnings at the time of his relationship with the defendant, in the vicinity of $30,000 a year. The estimate of earnings was disputed by the defendant.
It has not been easy to determine the exact scope of the plaintiff’s work, nor the remuneration he may have received, at the time of his relationship with the defendant, because of the imprecise nature of the plaintiff’s evidence. I could not be confident of his evidence on financial matters, unless there was other evidence which supported it. Doing the best I can, it seems that when the parties met, the plaintiff was “a self-employed contractor engaged by Invercauld Pty Ltd to attend to the maintenance of the improvements and livestock care of Invercauld, a rural property at Macclesfield”. I have relied on a facsimile sent to the defendant’s solicitors by the manager of Invercauld, Mr Hamish Findlay. I have borne in mind that there was no evidence of the letter in which Mr Findlay had been asked to provide the information in the facsimile, and that Mr Findlay was not cross-examined on the contents of it, but I note that in the main it is consistent with the plaintiff’s own evidence. The plaintiff was paid $500 per month and in addition received other benefits, such as the use of motor vehicles, motor vehicle fuel and hay for the horses owned by the parties. Although the plaintiff said that he had wide recourse to petty cash from the Invercauld accounts for his own personal use, in the absence of any other evidence about it, I am not prepared to find that was the case.
The plaintiff did part-time mustering at a property known as Reynolds Park. He was not paid a wage but received livestock in return for work done at that property. The plaintiff also mentioned “livestock transactions” in the context of the property, Reynolds Park, but the nature of and possible financial gain associated with those livestock transactions was not established.

The plaintiff, through the properties with which he was associated, supplied meat to the household from time to time, for example, on occasion, he brought home a sheep or a whole body of beef, which was dressed and then frozen, and lasted for around six to eight months.
The plaintiff also acted occasionally as a clerk of Strathalbyn Racecourse, and possibly Oakbank, earning around $200-$320 for each race meeting he worked.
The plaintiff said that prior to his relationship with the defendant he had worked as a commission buyer of livestock for a meatworks run by W Jacobs. That work had generated profit in the order of $50,000 over a period of twelve to eighteen months. He said that when he moved to the defendant’s home, there was about $10,000 in cash left and he had taken that sum with him in a brief case, which was kept on the floor of his utility. No documents were tendered, nor other evidence called, on that topic. The circumstances generally do not support it. In the absence of any evidence in support of the plaintiff’s assertions regarding those earnings, his evidence that he had earned that sum as a commission agent, and his evidence that he had $10,000 cash in a briefcase at the time he went to live with the defendant, must remain highly questionable. I reject it.
The plaintiff’s evidence was that he and the defendant began pooling their financial resources about three or four months after they began living together, although that did not include Strathalbyn Racecourse earnings, which he used as pocket money. The plaintiff said that he gave his earnings to the defendant. He received his earnings, he said, mostly as cash. The plaintiff said that he kept a small amount of cash for himself for tobacco or for buying items for the property owned by the defendant. The plaintiff said that if he were paid by cheque, he would cash it, or he would give the cheque to the defendant who would get it cashed. The plaintiff said that the defendant put the money he gave her into a tin or cookie jar, or sometimes in the defendant’s handbag. When he needed money, he would ask her for it.
When the plaintiff moved to Murray Street, Strathalbyn, he took with him two motor vehicles, a Holden Utility and a Holden Commodore. The defendant had a Ford Courier utility which she had bought second-hand in 1992. The plaintiff also took some household items, a refrigerator and a freezer, some furniture – a bed and some old furniture, including cupboards and fire surrounds, saddlery, harnesses and other related equipment and his tools, including power tools and fencing tools. The plaintiff said, and the defendant acknowledged, that the defendant sold the furniture he no longer required in her antique shop and that she put the proceeds of about $500 or $600 into the tin which was used for the safekeeping of his money.
I accept the defendant’s evidence that the parties did not pool their resources in the way described by the plaintiff, that is, that the defendant put her money, with the plaintiff’s, into a tin, from which household bills were paid. However, I find that the plaintiff did give sums of money from his earnings to the defendant, who put the money for safekeeping into a tin she kept in a wardrobe, first at Murray Street, and then at the property called Hawthorne Park. From time to time, the defendant also put other sums of money in the tin for the plaintiff, and used money from the savings in the tin on the plaintiff’s account as she thought appropriate, e.g., for general household expenses or items the plaintiff wanted to purchase, as his contribution to travelling expenses in the United States or for the payment of legal fees incurred by the plaintiff on an unrelated matter.
Soon after the plaintiff moved in with the defendant at Murray Street, Strathalbyn, he said he began helping with maintenance of that property, including, for example, mowing the lawns. The defendant was responsible for household duties, including cooking and cleaning. The plaintiff said that he assisted the defendant at times with household tasks and in looking after her children. The defendant ran the antique shop, which was in Strathalbyn, and the plaintiff sometimes helped by looking after the children after school and at weekends, until the defendant closed the business in October 1995. He said, and I accept, that from time to time he attended school parent/teacher meetings.
The defendant’s daughter, Fiona, who was nine at the time the plaintiff and defendant began living together, loved farming activities. The plaintiff took her on alternate days to Invercauld or to Reynolds Park, where the plaintiff was working. She especially liked horses and the plaintiff taught her to ride a horse and later, to play polo. As Fiona became competent in handling horses, she graduated from ponies to larger horses, which the plaintiff trained for polo playing. The plaintiff supported Fiona’s polo activities, attending practice sessions with her on two nights a week at a private field at Strathalbyn and accompanying her when she played in competition at the weekend. She and the plaintiff travelled to Victoria or New South Wales for tournaments, sometimes three or four times a year. The defendant came to watch the matches and accompanied the plaintiff and her daughter on about three occasions to interstate tournaments.
The plaintiff said that a truck was purchased, using funds from the pooled funds in the tin, to transport the horses to and from polo, but I find that it is unlikely that the savings of the plaintiff could have amounted to a sufficiently substantial sum and it is probable that the defendant purchased the truck using mainly her own money.
The horses required looking after. The plaintiff said he took care of the horses, feeding them, drenching them and trimming their feet. He said that when they were fully worked, they were always rugged and hand fed. He was responsible in the main for the care of the horses, but he was helped by Fiona and the defendant at times. As I mentioned earlier, feed for the horses was obtained from the properties where the plaintiff worked.
The plaintiff tried to balance the time he spent with the two children, but it was common ground that his relationship was better with the defendant’s daughter, Fiona, than with her son, Grant. Grant did learn to ride, mainly through the efforts of the plaintiff, but although he did own horses later, he was more interested in motorbikes and machinery than horses. When he went with the plaintiff to the farm, he used to ride the farm motorbikes and appeared to the plaintiff to be reluctant to put in the time to learn something about farm life and running livestock.
On 8 August 1996, the defendant’s mother died. The defendant’s mother left a will, under which the defendant received one half of the estate and her two children received the other half divided between them. The estate included her house at 1 Rochester Street, Leabrook, a unit in Tusmore Avenue, Leabrook, some shares and cash and a Daihatsu motor vehicle. In October 1996, the defendant sought advice from her accountant, and from a lawyer, in relation to how she should deal with the assets comprising her mother’s estate, and in relation to making a new will. The defendant received a sum of $25,000 in advance of the final distribution of her mother’s estate.
The house at Rochester Street, Leabrook, was sold about six months after the defendant’s mother died, the net proceeds to the estate from the sale of the house amounting to $453,682. I accept that the plaintiff helped the defendant move the furniture from the house to Strathalbyn over two trips, with a friend, Mr Peter Hancock, and that he helped the defendant tidy the house both inside and outside. He sprayed weeds, buying the spray liquid, and mowed the lawns, paying for the lawn mower fuel. The plaintiff said, and I accept, that he thought there were certain parts of the fence which had to be reinforced and he did that too, supplying steel to fix broken gateposts. He also assisted with maintenance on taps, fixing the hot water service and attending to minor maintenance work generally.
In around April 1997, the defendant received the balance of the distribution to which she was entitled under the terms of her mother’s will - a sum of over $614,000. Her income included her share of the rent from the unit at Tusmore Avenue, dividends from shares and interest on capital. She no longer received a pension.
As the defendant had the use of her mother’s motor vehicle, the Daihatsu, the plaintiff sold the Holden utility he had for about $1,000-$1,500 and he began using the defendant’s Ford Courier utility. The plaintiff also sold the Holden Commodore, which he said, was not registered. The defendant said that the plaintiff gave her the money from the sale of both of his vehicles and she put it away in the tin, because he had no bank account. I accept the defendant’s evidence that she did not agree to the plaintiff becoming the owner of her Ford Courier utility, for which she remained financially responsible to the date of the hearing.
In April 1997, the defendant purchased a block of land adjacent to her house in Murray Street, Strathalbyn. The plaintiff said, and I accept, that he contributed to maintenance on the adjoining block. He, together with Mr Hancock, constructed a new steel frame for a storage shed and installed gates. He bought the steel required for the gates and welded it up, using his employer’s welder at the farm where he was working. While Mr Hancock charged the defendant $800 for eight days’ work on that property, I find that the plaintiff did the work he said he did, with the assistance of Mr Hancock.
In June 1997, the plaintiff and the defendant travelled to the United States of America and Mexico on a holiday. They were away for just over a month. The fares for the trip cost about $9,000, and the defendant provided $3,500 in cash and travellers cheques, with further expenses and purchases charged to the defendant’s MasterCard account. The trip was organised and paid for by the defendant. She said that she had always wanted to go to the United States, she knew that the plaintiff could not afford to go on the trip himself, and she wanted to do something for him. However, the defendant did use $1200, which she took from the tin in which the plaintiff’s money was kept, as the plaintiff’s contribution to the trip expenses.
On 14 November 1997, in an arrangement with the Trustees appointed under her mother’s will, the defendant purchased a property near Strathalbyn for $270,000. Under the agreement with the Trustees, the defendant has a half interest in the property and she and the Trustees hold a half interest in trust for her two children. The defendant undertook responsibility for the maintenance of and the outgoings in relation to the property.
The plaintiff and the defendant and her children moved to the property, which the defendant named Hawthorne Park, on the 13^th January 1998. Hawthorne Park is a property of some 90 acres and it included a three-bedroom house, horse yards and stables, a flat attached to the stables and a raceway.
The defendant said that she had always liked horses and after she met the plaintiff she began owning horses. Her daughter was interested in horses at the time. The defendant had some discussions with the plaintiff about the upkeep which would be required on the property. She said he knew what needed to be done. I find that it is likely that in making her decision to buy a property like Hawthorne Park, and in its maintenance and improvement after purchase, the defendant relied far more than she now acknowledges on the plaintiff’s farming expertise and his experience with horses.
When they moved to Hawthorne Park, the defendant’s and the children’s five horses and about six or eight belonging to the plaintiff were moved there from free agistment at Invercauld, which had been arranged through the plaintiff.
The plaintiff mended fences in a number of paddocks and he bought some of the materials required, including insulators and steel droppers. On at least two occasions, he ploughed in and sprayed horehound weed, which was growing on the property, using spray equipment of his own or from Invercauld. In October 2001, the defendant received a notice from the Fleurieu Animal and Plant Control, requiring the owners of the property to control horehound found growing within twenty metres of boundaries. I am not prepared to draw any inference adverse to the plaintiff from the notice. The evidence does not establish, one way or the other, whether the horehound had been inappropriately dealt with previously, or had simply re-established itself naturally.
The plaintiff also fixed water leaks and installed water pipes on the property. He cleaned out the stable block and attended to gates on the yards. The farm was registered as a business as a horse stud. The defendant leased a Quarter Horse from the plaintiff for a period from 2 June 1998 to 2 June 2001 for breeding purposes. The defendant said that the plaintiff would assist in the horse stud venture and looking after the horses generally, by taking the stallion to a mare, bringing hay for the horses and feeding them, drenching them, and doing farrier work. The defendant included the horse stud business in income tax returns in 1998, 1999, 2000, 2001 and 2002.
For a period in 1998 or 1999, a horse trainer lived in the flat near the stables and the defendant received a percentage of his earnings in relation to horses, kept on the property, which he trained. At another time, a friend occupied the flat and paid money to the defendant towards grocery purchases, in return for his meals.
I saw a video of the property taken by a friend of the defendant in April 2002. The video was very useful in providing a visual impression of the nature and scope of the property. I was invited by the defendant to find that the video showed the property, in April 2002, to be in a dilapidated or run down condition, in particular, in those areas relevant to an assessment of any contribution made by the plaintiff to its maintenance and/or improvement. In the absence of any comparative evidence of the state of the property beforehand, or perhaps other similar properties well maintained over a comparable period, the view of the property on video was inconclusive in that regard and I make no finding adverse to the plaintiff on that account.
In June-July 1998, the defendant went to America with her two children. The plaintiff remained at the property. In September 1999, the defendant took her daughter to America, leaving the plaintiff to attend to the property and to look after her son. The defendant bought an expensive saddle in America, which she gave to the plaintiff for his fiftieth birthday in December 1999. In March and April 2000, the defendant went to the Middle East on her own and the plaintiff stayed home with the children.
In 2000, renovations and repair work were undertaken at Hawthorne Park. The plaintiff stopped working at Invercauld, and there was a period of about six months before he commenced work with the Freschi Family Trust (trading as JF and YJ Freschi Pty Ltd) in October 2000. During that six-month period, he worked at Hawthorne Park, attending to maintenance and minor improvements, attempting to bring the property generally into good repair. Renovations were also undertaken on the house at Hawthorne Park. The defendant employed a building contractor and kept a careful note of building expenses, but the plaintiff said, and I find, that he assisted in the demolition of walls, shifting concrete with a tractor borrowed from his employer, tidying up, cleaning bricks in the creek nearby for re-use, and interior painting.
In the financial years ended 30 June 2000 and 2001, the defendant was involved, with a friend, in a business venture in property development at Sandergrove Road, Strathalbyn, subdividing land and building three units. The defendant contributed some capital to the project and also her time in deciding on layout, colours and finishes for the interior fit-out of the units. A modest profit was made on the venture.
In the financial year ended 30 June 2001, the plaintiff’s net income from his work at Freschi’s was $12,341, his taxable income being $12,058. He said that he did not always take all of the earnings due to him, but his employer held some back as a kind of saving and he would then receive a lump sum. Mr Penhall, the chartered accountant called by the defendant, confirmed that his firm had prepared one income tax return for the plaintiff, for the financial year ended 30 June 2001. Mr Penhall said, and I accept, that the plaintiff told him that he, the plaintiff, had last lodged an income tax return in 1984. At the end of 2001, the plaintiff received a tax refund in the sum of $5,070, which he used to pay bills, including an account for legal fees.
In July 2001, the defendant purchased a business, Mount Barker Radiators, for a sum of $65,000, in order to give her son a chance of an apprenticeship as a mechanic. There was no discussion with the plaintiff about its purchase. The plaintiff helped to move some office furniture to the business, but otherwise had no involvement in it. From the beginning, the defendant worked in the business every day, answering the phone, liaising with customers and doing the bookwork and banking. As Mr Penhall confirmed, the defendant was paid $30,000 in wages from that business in the financial year ended 30 June 2002. Her son also worked in it, with a mechanic. The business sustained a loss in the order of $47,500 and the defendant closed it in November 2002.
In September 2001, the defendant went with her son to America, leaving the plaintiff at home with her daughter. Both the plaintiff and the defendant agree that their relationship ended on 10 November 2001, when the plaintiff left Hawthorne Park. There is very little evidence regarding the terms of the parties’ personal relationship at all and in particular, in the months before the plaintiff left. I infer that there had been a significant deterioration in it over some time.
The circumstances of the plaintiff leaving the home were strained. In the months beforehand, his relationship with the defendant’s son had been increasingly difficult. The plaintiff had been told of some trouble the defendant’s son had been in with the police. The plaintiff had tried unsuccessfully to deal with it himself. On 10 November, an argument developed between the plaintiff and the defendant’s son and a physical confrontation occurred. Police attended and the plaintiff agreed to leave the house, which had been his home for nearly four years, straight away. He left in the Ford Courier utility, which he has been using since that time. It is not relevant, and I am not asked, to come to any conclusion regarding fault for the final collapse of the relationship. (Evans v Marmont, above at 79, 87 and 98)
The plaintiff had some time off work with Freschi’s after he left Hawthorne Park. His net earnings from Freschi’s for the financial year ended 30 June 2002 were $12,417. He sustained a work injury in November 2002, and has since been receiving worker’s compensation payments.
Recognition of and Compensation for Contributions of the Plaintiff
The acquisition of the assets owned by the defendant at the time of the hearing was independent of any financial contribution by the plaintiff.
When the parties first met, the defendant was making a loss in her antique business and receiving a sole parent allowance. The defendant’s taxable income for the financial year ended 30 June 1995 was $666 and in the following year, $3848. From early 1997 to 2001, the defendant’s financial situation improved with her inheritance under her mother’s will. It seems likely that the personal relationship between the parties was affected by the change in the defendant’s financial situation. The defendant then had capital sums at her disposal and an income from rent, dividends and interest on capital, and she made a modest profit on her venture in land development. Her income increased to between $30,000-$44,000 per year, although for the financial year ended on 30 June 2002, after the relationship had ended, the defendant sustained a loss as a consequence of the failure of the Mt Barker Radiator business.

I find that the plaintiff made a modest contribution to the financial resources of the parties during the relationship. The plaintiff made what must have been, comparatively speaking, the more significant contribution to the parties’ financial resources, from remuneration for work he was doing, in the years when the defendant’s income was very limited. In the early part of the relationship, the plaintiff’s contributions of even a modest amount from his earnings of around $6,000 per year, the benefit of his motor vehicle expenses, meat and hay from the properties where he worked, and arranging for the agistment of the horses at those properties, were all likely to have made an appreciable difference to the circumstances of the defendant and her children.
The plaintiff made a contribution to the conservation and/or improvement of assets held by the defendant, through his maintenance and repair work at the property at Murray Street, Strathalbyn and the adjacent block, the house at Leabrook, and in renovation and building work, repair of fencing, water pipe connection and maintenance generally at Hawthorne Park.
The plaintiff also made a contribution in his relationship with the defendant, in household chores and with the care of her two children. For a number of years he had a close relationship with the defendant’s daughter, who called him “Dad” and whose interest in horses and playing polo he fostered. He trained the horses and was primarily responsible for attending to the horses owned by the defendant and her children as well as his own. He did his best, I find, to help with the upbringing of the defendant’s son, although ultimately he did not enjoy a good relationship with him. He took on the responsibility for Hawthorne Park, and the defendant’s children, or one or other of them, when the defendant travelled overseas on a number of occasions.
I infer from the fact that the relationship between the parties endured for nearly seven years, that for an indeterminate time, the plaintiff and the defendant shared a mutually sustaining and beneficial partnership. I also infer that the plaintiff enjoyed a benefit from being part of the defendant’s family, living with her and her children, sharing activities and having the satisfaction of what must have been an agreeable personal and family relationship for some time. He travelled to the United States with the defendant, which he is perhaps unlikely to have done on his own.
Other Relevant Matters
The relationship between the parties was one of nearly seven years. The financial circumstances of the parties both during the relationship and at the time of the hearing are not the same. The defendant has owned the major assets and received an income from them. The plaintiff has in effect no assets, modest earning capacity and, more recently, has been receiving worker’s compensation payments while unable to return to employment. I bear in mind that it is not appropriate to take into account on this application any issue related to his maintenance or future financial prospects. (Hogg v Roberts, above at 250)
The Appropriate Adjustment
In this case, it is not possible to take any but a practical and broad approach in determining the appropriate order, bearing in mind the circumstances of the acquisition of the assets of the parties and the contribution made by each party in respect of them. (Hogg v Roberts above at 251; Norbis v Norbis (1985-1986) 161 CLR 513 at 523, 532-533)
It is not appropriate to assume, and nor has it been suggested, that an equal division of property is the starting point, followed by an enquiry whether the circumstances of the case require some departure from that position. (Mallet v Mallet (1984) 156 CLR 605; Evans v Marmont above at 74; Hogg v Roberts above at 250)
I take into account that the financial contribution made by the plaintiff to the financial resources of the parties and to the conservation and improvement of the assets, the subject of the application, was a very modest one. On the other hand, the non-financial contributions of the plaintiff to the conservation or improvement of property owned by the defendant, to the home life shared by the parties and to the care of the defendant’s children are not to be considered inferior to material or financial contributions; they are to be given full and proper value, notwithstanding the difficulty in attributing a money value to them and that they cannot be related directly to the acquisition or improvement of property. (Hogg v Roberts above at 250; Evans v Marmont above at 74; Arnold v Dalton (2002) 84 SASR 482 at 491)
In my opinion, no adjustment is to be made in relation to any difference in the assets of the parties as at the time of separation from assets held at the time of the hearing. The plaintiff has had the use of an income tax refund cheque in the sum of $5070 for various expenses of his own. The defendant has applied funds in the order of $15,255 towards her own and her family’s daily living expenses. In the context of this application, the difference is not material. The appropriate value of the assets for the purposes of the application is the value at the time of trial.
In the circumstances, it is appropriate to make an order for the defendant to make a payment of a lump sum to the plaintiff, rather than any other order relating to the division of property between the parties. On the evidence, there can be no precision attached to the determination of the terms of a just and equitable adjustment in favour of the plaintiff.
Having regard to:
1.the length of the relationship, i.e., nearly seven years;
2.the acquisition of the assets of the parties almost entirely from the financial resources of the defendant;
3.the very modest financial contribution made by the plaintiff to:
(a) the conservation and/or improvement of property owned by the defendant, and
(b) the parties’ financial resources generally;
4.the non-financial contribution made by the plaintiff to:
(a) conservation and/or improvement of real property   owned by the defendant; and
(b) the care and training of the horses owned by the               parties and the defendant’s children;
5.the sale of the plaintiff’s horses by the defendant since the time of separation for an unknown, but, I infer, modest sum;
6.the plaintiff’s contribution in giving support to the defendant, in particular in her decision to purchase Hawthorne Park, and in its upkeep thereafter;
7.the plaintiff’s contribution to the defendant and to the care of the defendant’s children; and
8.the personal circumstances and the assets of the parties at the time of the hearing,
it is, in my opinion, just and equitable to make an order for the payment of a lump sum by the defendant to the plaintiff, so that the plaintiff receives between 12% and 15% of the value of the assets of the parties, all of which, with the exception of a sum of $987, the plaintiff’s superannuation entitlement, are held by the defendant.
Notwithstanding that since the parties separated, the plaintiff has had the use of the 1989 Ford Courier utility, registration no. UYS 632, belonging to the defendant, it has been the defendant who has remained responsible for costs associated with it. I make no order with respect to the transfer of the registration of that vehicle from the defendant to the plaintiff.
I order:
1.That the defendant pay to the plaintiff the sum of $90,500.
2.That the 1989 Ford Courier utility, registration no. UYS 632, is to be returned to the defendant by the plaintiff.
I will hear the parties as to further terms of the orders and as to costs.