Roberts v Hogg No. DCCIV-02-443

ROBERTS v HOGG
[2003] SADC 92
Judge David
Civil

The plaintiff and the defendant were in a de facto relationship until May of 2000. There is a small dispute as to when that relationship started. According to the plaintiff it was at the beginning of October 1994 and according to the defendant it was sometime between February and November 1995. At the time that the relationship finished both parties were living at a property which they had purchased at 16 New Orleans Street, Goolwa North. That property is in joint names. The plaintiff now seeks a division of that property pursuant to Section 10 of the De Facto Relationships Act 1996. In her claim she seeks an equal division of the net proceeds from the sale of that property. In addition she seeks a further $25,000 by way of maintenance for two daughters of the relationship from November 2000 to the date of the trial. She also claims a further sum of $5,000 by way of “occupational rent”.
The defendant, who was and has always been unrepresented in this matter, denies the above claims of the plaintiff and in his pleadings seeks that the plaintiff be ordered to pay $60,649 which sum represents approximately half of the debts of the business which he and the plaintiff ran. As the case developed the defendant’s claim that the plaintiff pay her share of the debts was in a sense abandoned and no evidence was led by the defendant of either the profits or the losses or the debts of the business. The question to be resolved before me was what interest the plaintiff had in the Goolwa North property (if any) and whether there should be any award made to the plaintiff for maintenance of the two children of the relationship and also the question of “occupational rent”.
Relevant Provisions of the De Facto Relationships Act 1996
The material provisions of the De Facto Relationships Act 1996 (sometimes called the “Act”) are as follows:-
“Power to make orders for division of property
10.(1) On an application for the division of property, the court may make orders it considers necessary to divide the property of either or both the de facto partners between them in a way that is just and equitable.
(2)For example, the court may make orders 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.
Matters for consideration by the court
11.(1) In deciding whether to make an order for the division of property under this Part, and if so the terms of the order, the court –
(a)must consider the financial and non-financial contributions made directly or indirectly by or on behalf of the de facto partners to –
(i)   the acquisition, conservation or improvement of property of either or both partners; or
(ii) the financial resources of either or both partners; and
(b)must consider the contributions (including homemaking or parenting contributions) made by either of the de facto partners to the other partner or to children of the partners or either of them; and
(c)must have regard to the terms of any relevant cohabitation agreement; and
(d)may have regard to other relevant matters.
(2)If a relevant cohabitation agreement -
(a)is a certificated agreement; and
(b)provides for the exclusion of the court's power to set aside or vary the agreement, an order for the division of property under this Part must be consistent with the terms of the agreement.
Duty of court to resolve all outstanding questions
12. In proceedings under this Part, the court must (as far as practicable) finally resolve questions about the division of property between the de facto partners and avoid further proceedings between them.
Definitions
3.    In this Act –
"de facto partner" means a person who lives in a de facto relationship and includes –
(a) a person who is about to enter a de facto relationship; and
(b) a person who has lived in a de facto relationship;
"de facto relationship" means the relationship between a man and a woman, who although not legally married to each other, live together on a genuine domestic basis as husband and wife;”
Property adjustment order
9.     (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.
(4)    An application for the division of property may be made or continued by or against the legal personal representative of a deceased de facto partner.
(5)    However, an application against the legal personal representative of a deceased de facto partner may only relate to property that is undistributed at the date of the application.”
In considering a claim such as the present I must first identify and value the property of the parties at the date of trial and particularly the Goolwa North property which is the only property about which there is an issue. Secondly I must determine whether there are any contributions made by the parties as set out in subsections 1(a) and (b) of Section 11 of the Act and thirdly consider any relevant matters which have to be taken into account as provided by subsection 1(d) of Section 11 of the Act.
It is also important to remember that under the Act there is no mention of the topic of child maintenance. In my view it cannot be reasoned that Section 11(1)(d) can justify orders for child maintenance because silence on such a topic indicates that Parliament did not intend to provide for it. Similarly it is also clear that the Act does not encompass any type of fault considerations for the breakdown of the relationship. It is my task to carefully consider those matters relevant to the criteria set out in Section 11 of the Act in deciding whether the plaintiff’s application should succeed. The question of who caused the breakdown of the relationship is irrelevant.
Demeanour of the Parties
There was a great deal of animosity between the plaintiff and the defendant. I had to keep reminding both parties that I would not consider questions of fault unless such questions were relevant to those criteria set out in Section 11 of the Act. On many occasions both parties tried to give evidence of irrelevant accusations concerning the cause of the break up of the relationship. Much of the disputed evidence between the parties involved matters that were not relevant such as the behaviour of the defendant to the plaintiff during the relationship and the course of events that took place to the final breach between the parties. On many relevant matters however there was very little dispute.
Case for the Plaintiff
The plaintiff gave evidence herself and called one witness, Mr Michael Higgins, who valued the Goolwa North property at $140,000 as of the 14 March 2003. His evidence on that topic was undisputed.
The plaintiff gave evidence that she is 41 years of age. She was married in 1986 and was separated from her husband in 1991. There are two children of that marriage namely Ashley Slattery who was born on the 25 October 1987 and Benjamin Slattery who was born on the 24 February 1991. After her separation she and her two sons continued to live at the former matrimonial home at Nairne.
In 1993 while still living at Nairne she first met the defendant. In late December of 1993 she commenced sexual relations with him while both were members of a yachting crew. They had been out yachting maybe six to eight times before that occasion. She gave evidence that from that time onwards a relationship developed with the defendant. She gave evidence that at the time that relationship started she knew that he was married but was told that his marriage was essentially over. She was informed that he had three children.
In early 1994 she was aware that the defendant had moved out of his matrimonial home and lived for a month at the Police Training Academy. While he was living there he would visit her at the unit at Nairne. After a month or so he shifted from the Police Barracks and moved to a unit at Nairne in the same block of units in which the plaintiff was living. She gave evidence how their relationship developed and there was even talk of them having children. In May of 1994 they both agreed to try and have children and the appropriate steps were taken. As a result of that the plaintiff became pregnant at about that time.
At the time the defendant was working as a Police Prosecutor. In late 1994 he purchased a property at Kanmantoo for about $43,000 to $45,000. The total purchase price was financed by a loan from the Police Credit Union. Before that there was discussion about him buying a property and the plaintiff gave evidence that she and her sons had spent several months looking with the defendant for the right place to purchase. In late 1994 the plaintiff gave evidence that the defendant resigned from the Police Force and received a retirement package of $113,000. Sometime after that he moved to the property at Kanmantoo. It is undisputed that with part of that package he paid off the debt for the purchase of the property at Kanmantoo. In other words he was the sole financial contributor to the purchase of that property other than a very minor amount of about $400 which the plaintiff contributed.
The property at Kanmantoo was a one acre block of land with a very large shed and a concrete floor. There was no toilet or water or electricity and it was agreed, according to the plaintiff, that the defendant would make the property habitable before the plaintiff and her sons moved in with him. In about October of 1994 she eventually moved in with the defendant at Kanmantoo. At that time she was about six months pregnant with their daughter, Melanie, who was born on the 10 February 1995. At the time that she moved in with the defendant she was on a single parent pension and was receiving child maintenance from her ex‑husband. The defendant told the plaintiff that he received the ownership of a half built vintage vehicle as a result of the property settlement with his former wife. During the course of the relationship with the plaintiff he sold that for $4,000. As a result of that same settlement he was also given the ownership of a wood fibreglass coated yacht he had built, a small motor bike and a Toyota Land cruiser. When the plaintiff started to live with the defendant at Kanmantoo she owned a 1978 Toyota Corona and she also brought into the relationship other personal items and appliances.
Their second daughter, Vanessa Louise Hogg, was born on the 8 November 1997 (Exhibit P3 – Birth Certificate). The plaintiff gave clear evidence that the father was the defendant.
When the defendant received the package of $113,000 on retirement from the Police Force he paid off the property, he used about $30,000 to improve the building on the property and another $30,000 to build up stock for a boat building business which he intended to establish. After he resigned from the Police Force his efforts were involved in that boat building business and he had no paid employment. However he received unemployment benefits initially and then began studying by correspondence for a law degree with the Deakin University. When he started that he was on occasional Austudy benefits and was either in receipt of those benefits or unemployment benefits. Other than helping with the boat building business the plaintiff never had any form of paid employment.
Improvements to Kanmantoo
According to the evidence of the plaintiff both she and the defendant contributed to the improvement of the property at Kanmantoo. She gave evidence that his contribution was to build the house which was originally a shed. He also put up another shed in which to build boats. Her duties were to raise four children and look after the defendant. She gave evidence that she made all the meals and kept him constantly supplied with snacks and coffee and answered phone calls while he was working. She gave evidence that she herself was directly involved with some of the improvements of the property at Kanmantoo. In particular she was heavily involved in landscaping the property. Her evidence on that topic was as follows (transcript page 75):-
"QOver time did it then cover the area that you wanted it to cover.
AYes, it looked good.
QDid you do those two lawned areas exclusively on your own.
AYes.
QDid you get any assistance from the defendant or not.
AOccasionally he’d walk out and, I don’t know, poke around a bit at things, but basically, no, he –
QYou told us you had an interest in gardening.
AYes, I love gardening.
QFor how long had you had that interest.
AAlways.
QHow had that manifested itself prior to meeting the defendant.
AI suppose I’ve worked on all the houses I’ve stayed at with gardens, except perhaps the rental house that I was in, I just maintained that, I didn’t improve that at all.
QYou said you planted 12 to 16 fruit trees.
AYes.
QAnd prepared the area before they were planted.
AYes.
QAgain, how much of that was done exclusively by you.
AThe planting and getting the ground ready and the purchase of the trees was done exclusively by me, David did put some plastic poly-pipe irrigation in afterwards. He did do that.
QIn the fruit tree area.
AYes.
QIs that known as the orchard.
AYes.
QWhat sort of fruit trees were they.
AI tried to get a balance of late and early fruiting stone fruits, there were two cherries. They were all designed to cross-pollinate if they needed to do that. There was an orange tree, a lemon tree, two apples but mostly the stone fruits.
QDid you plant any vines at the property.
AYes, I covered the whole front of the house and the side of the house where we originally had a pergola with vines and when we left, the ones on the front of the verandah were mature and they just draped the whole front of the house.
QHow long is the front of the house.
AI think it was 20, 22 metres, guessing.
QDid you say you put some vines down one side of the house.
AYes, eventually, they were only small when we left but they would grow up over the pergola.
QHow long was the side of the house, roughly.
AIt could have been 11 metres I think.
QThey were small when you left but the front ones had fully grown.
AYes.
QAnd covered the front of the house.
AYes.
QIn a decorative style
AYes, they looked great.
QSo tell us approximately how many vines were needed to plant along the front to get the effect that you ultimately got.
AIt was somewhere between six and eight. I think it was eight.
QDid you ever plant native plants on the property.
AWe planted hundreds of native plants, that’s what basically covered the rest of the property. They were all dug in by hand.
QWho dug them in by hand.
AI did most of them, David did help on a few occasions when we had visitors.
QFrom where did you get these native plants.
AMostly from a nursery down the road, from Tetrathica Nursery.
QWas there a person that you knew there.
AJohn Gray.
QDid you have to pay for these plants or some of them.
AWe did have to pay for some of them and some of them we had as replacement for David doing computer work for him and the rest were just given to us by John Gray.
QWhen you say ‘hundreds’ of native plants, can you be more specific about how many hundreds or not.
ASeveral hundreds –
QAre we talking eight or nine hundred.
AI think more like five or six hundred. They were planted about every one and a half metres out over the acre.
QWhat proportion of those would you have planted on your own.
A90%.
QYou mentioned there was a cottage garden at the front of the house, I think you said about 4 metres by 22 metres.
AYes.
QWho planted that.
AI did.
QExclusively.
AYes.
QWho prepared the soil and the area before planting.
AI prepared most of it but every now and then I would come across a part where the trucks had obviously been driving over from when Western Mining owned it before. Occasionally I would ask David to come out and help me dig a bit of it.
QAnd would he.
AEventually after getting cross, yes, he would give in and do it.
QBut again in terms of preparation, establishment and maintenance of that cottage garden what percentage was done by you and what percentage, if any, was done by the defendant.
A100% of looking after it after the soil was dug and of putting it in was done by myself. Apart from the little bit of digging in the beginning that David did on a few hard bits the rest was all my work.
QDid that garden become established by the time the property was sold.
AYes, it was magnificent, yes.
QWithout going into chapter and verse can you just give us some idea of what it contained.
AAll different types of lavender, butterfly bush, columbines, daisies, just, yes, all sorts of general cottage plants. I was a bit of a collector, so every time there was a space I’d fill it with another cottage plant.
QFrom where did you get the materials to plant this garden.
ASometimes I was able to take cuttings from other people’s plants. Everybody in the area knew I was a keen gardener so they would often give me little bits but mostly I bought them from nurseries.
QYou mentioned paving, was any paving done to the property and if so by whom.
AI did the rear of the house. There was a path put out the back, it was done by myself.
QCan you just elaborate more on the type of path it was, and what you did.
AIt was a brick path, I had to level it. It wasn’t extremely professionally done by any means but it took days to get it levelled. The area was very muddy out the back and it had to have something down.
QWas there a particular purpose in this paved area or not.
AYes, to stop mud from coming inside the house and to make it look better.
QFrom where were the materials, the bricks, obtained.
AI actually don’t remember.
QIn order to maintain the garden was manure sourced from somewhere.
AYes, I used to pick up trailer loads and bag loads of manure from all around.
QDid you include horse manure and pigeon manure.
AI used to take the trailer out and fill it with horse manure and that’s what I virtually used to mulch the cottage garden and fruit trees.
QWas that done by trailer loads and with a shovel by you.
AYes, occasionally with bags in the boot but mostly by trailer.
QIs there anything else of significance that you contributed to in terms of the outside of Kanmantoo.
ALots of pea straw, I used to go with the trailer to pick up several bails of pea straw.
QWhat is that used for.
AMulching, you need to constantly mulch, Kanmantoo is very dry.
QAnything else you did of significance to the outside.
AA lot of time was spent maintaining it, because although it eventually all got put in, even though it was planted, it was a progressive thing, so while I was planting new ingredients things I was spending the rest of the time maintaining things I put in.
QThe lawn areas, were they mowed at all.
AYes.
QWho did that.
AThat was a joint thing, whoever got to it first.
QAnything else of significance to the outside or not, or are they the main matters.
AI think they were the main ones, yes. Yes, just the landscaping, moving a lot of dirt around the place, where I had garden beds, there were mounds already put there so they all had to be moved, they were wheelbarrowed to different parts of the yard. There was shifting the tonnes of dirt to do that.
QWho did that.
AI did.
QAll of it or nearly all of it.
AAll of it, yes.”

I have set that evidence out in full because the plaintiff’s claim that she made that contribution to the value of Kanmantoo is disputed by the defendant. She also gave evidence of certain financial contributions she made to the renovations of the house at Kanmantoo. She agreed that renovations to the shed were financed basically by $30,000 from the defendant’s retirement package. The septic system which was put in was financed by the sale of the defendant’s car which was $4,000. Also there was an amount of $2,500 which, according to her evidence, the defendant discovered in his ex‑wife’s child maintenance account. With that money he carpeted the bedroom and the hallway. She herself purchased some jarrah for some decking and both of them installed it. She helped the defendant erect a carport which she paid for. There was an amount of work done on the main bedroom which the defendant did with a little assistance from the plaintiff. There was also an ensuite bathroom which was half built which was financed by the plaintiff but the work was done by the defendant. The kitchen was installed by both of them and a second lounge was established. They were both involved in the collection of timber to do these renovations. There was carpet laid in the lounge room and this was paid for by the plaintiff from a personal loan from the Commonwealth Bank. Although a portion of the defendant’s package financed the renovations and improvements to the bulk of the house there was much that was done which was financed from the plaintiff’s child maintenance payments.
The Boat Building Business
According to the plaintiff the boat building business was established a short time after the defendant took his package. He traded under the business name of “Ross 650 Yachts”. The nature of the business was to purchase moulds that were for a yacht of that type and to build those yachts. The plaintiff’s name was part of the business according to her and so were the names of her sons. Although she had no knowledge of the real reason why, she suspected it was for taxation purposes. The building began on the shed which eventually became the house. She gave evidence that she was involved in the business in the sense that she was often called upon to pay bills that the business could not afford to pay and she was consistently being called out to help build the yachts. She then gave detailed evidence of her role in the business (transcript pages 93 – 98). The money to start the business came from the defendant’s package and the business went for about two or three years. According to the plaintiff’s memory about five or six boats were sold during that time. The business itself was unsuccessful and provided the family with no income. On legal advice after the plaintiff and the defendant separated the plaintiff had her name removed from the business so that she would not be at risk of incurring debts that were not her fault.
Purchase of the Goolwa North Property
In April of 1999 the plaintiff and the defendant purchased the property at 16 New Orleans Street, Goolwa North. The reason for purchasing it was because the defendant wanted to expand his boat building business and Kanmantoo was too far inland. They eventually found the house at Goolwa North and it was bought. The house at Kanmantoo had not been sold and bridging finance was taken out to buy the house at Goolwa North. The purchase price of the Goolwa North house was $118,000. The sale of the Kanmantoo house which was about $113,000 paid off the bridging finance and the difference according to the plaintiff was paid for by her visa account. There was never a mortgage over the Goolwa North property. The shortfall which the plaintiff paid for as a result of the change of properties was approximately $800. The boat building business was also moved to Goolwa North but on the plaintiff’s evidence it was no more successful than it had been at Kanmantoo. The business was then moved from a shed on the Goolwa North property to a rental shed a short distance away. This was done a few months after they moved into Goolwa North. She continued to help the defendant work in the business.
Events leading to separation of the parties
In the year 2000 there were difficulties in the relationship. I need not go into details. The defendant left in May of 2000. He took a caravan from the premises and lived in that caravan on the industrial land where his business was run from. That caravan was purchased during the relationship. It cost $800 and was paid for out of the plaintiff’s bank account. Although they were separated in May of 2000 they had contact from time to time. While he was away her source of income was from her sole parent pension and that catered for her and her four children. She eventually left the house at Goolwa North in November of 2000. Between May and November of 2000 the defendant would constantly come to the house and phone and leave notes against her wishes. She gave evidence of an incident which finally caused her to leave the house at Goolwa North. I indicated early in the case that I was not going to entertain evidence relating to fault. There was a great deal of evidence that the plaintiff sought to lead of that nature involving the reason why she left the house in November of 2000. I ruled that she could not go into detail, but the upshot of her evidence that was led was that she called the Police because the defendant had threatened to kill her. As a result of that threat she left. She did this in a hurry and all of her paperwork remained. She went to her brother’s place.
Events after separation
The plaintiff gave evidence that she went back to the Goolwa North property after she left to collect her belongings. There were a lot of items such as beds and a chest of drawers that were missing. Also she could not find any of her paperwork. She discovered a burnt mattress and other items that obviously had been burnt. The importance of this evidence is presumably that she was unable to provide her solicitors for the preparation of this case with documents which she could not obtain.
Assets of the Relationship in November 2000
The plaintiff gave evidence that when she left the house in November of 2000 she and the defendant owned the following items:-
a. The Goolwa North house.
b.Three cars – a Ford Falcon 1989 sedan, a Mitsubishi L300 sedan and a Toyota Corona 1978. She drove away and kept possession of the Ford Falcon 1989 sedan and retained it. The Mitsubishi sedan was purchased during the relationship for about $1,800 when they were living at Kanmantoo. It was financed with a personal loan from the Commonwealth Bank. The plaintiff still has that debt. That van was left on the premises and she has not seen it since. The Toyota Corona 1978 was left at the Goolwa North property and used by the defendant for sometime. However after the plaintiff moved to her brother’s house the defendant dumped it at that house and took away the keys and the battery. The plaintiff disposed of it. There was also a 1984 Toyota Land cruiser which the defendant retained. The defendant had received it in his settlement with his ex‑wife. Also there was a motor bike which the defendant brought into the relationship which was retained by him.
c.There was a caravan which was purchased during the relationship and that was retained by the defendant.
d.There was the defendant’s yacht which he had acquired from the settlement with his ex‑wife. He retained that.
e.There was all the stock of the boat building business which he was still running in November of 2000 and which he retained.
f.Some furniture from the house at Goolwa North was taken by the plaintiff, some was retained by the defendant.
The Plaintiff’s Debts in November 2000
When she left the premises at Goolwa North the plaintiff gave evidence of the following debts:-
a.$560 borrowed from AGC to buy a new dishwasher. She had purchased that about four months before she left.
b.A Commonwealth Bank personal loan of approximately $3,000 left over from completing the Kanmantoo house. That was being repaid from her pension money.
c.A visa card debt of $800 created by the payment of bridging finance for the purchase of the Goolwa North property.
At present the plaintiff receives fortnightly Centrelink payments in the region of $250 and has a casual job as a care worker with Community Services Incorporated for which she receives about $88.50 per week.
The plaintiff sought legal assistance from the Legal Services Commission of South Australia in relation to the return of her two girls into custody. I do not wish to go into the details of that dispute as it is not relevant to the present matter. As a result of that a charge for $1,608 was placed over the Goolwa North property (Exhibits P10 and P11). The plaintiff also gave evidence that since November of 2000 she has never been back to the Goolwa North property to live and it has been occupied by the defendant since that time.
After the plaintiff left Goolwa North to live with her brother she eventually acquired the lease of a property at Glenelg North and moved there with her two daughters. This was in early October of 2001. Her former husband had custody of her two sons. She remained at that premises for a year until she started to live with her present partner. During that year she paid $160 per week rent and received $50 a week rent from Centrelink. She received no financial assistance from the defendant by way of maintenance payments for the children. She gave evidence that she has received some small cheques from the defendant since May of 2000. Since October 2002 she has lived with her present partner and her two daughters.
She also gave evidence that since she left the Goolwa North property in November of 2000 there have been a number of Court hearings involving custody and restraining orders between her and the defendant. I do not wish to go into details. There was an occasion about which she gave evidence in which the defendant came to the property at Goolwa North after he had left in about September of 2000 and purported to sell the property to her for $1 (Exhibit P12). That obviously was done in emotionally charged circumstances and such an act can have no bearing on my present decision. There was also an occasion when she placed a restraining order over the defendant then had it withdrawn. Nothing about that incident assists me in the making of my present decision. It is part of the trauma of the break up of the relationship.
The plaintiff gave evidence that the Goolwa North property was purchased in joint names. She gave evidence that the reason that it was purchased in joint names was because the defendant wanted the property to belong to both of them. She also gave evidence of the details of the cost of the children of the relationship since separation (transcript page 163). As I understand it the importance of that evidence is in relation to the plaintiff’s claim for maintenance for the children from the time of separation until the Court hearing. I will turn to that topic later.
The plaintiff was cross-examined extensively by the defendant acting on his own behalf. I gave the defendant much leeway in his cross-examination because he was unrepresented. Understandably there were therefore many irrelevancies. I must add however that the defendant’s experiences as a Police Prosecutor obviously assisted him in the way in which he formulated his questions and followed through topics in cross‑examination in a logical and thorough manner.
It was put to the plaintiff that she never did any of the work on the Kanmantoo property in relation to gardening and landscaping. It was specifically put that she was suffering from the disease of hypoglycaemia and did not have the ability to do the amount of work which she gave evidence about. There was much cross-examination on that topic. She denied those assertions and maintained that she did do extensive work on the property at Kanmantoo. It was also put that she did not contribute in any way to the transformation of the house. She denied that. It was also put that he left the house in May of 2000 to live in the caravan at Goolwa North only while she was looking for other accommodation. It was put that it was always agreed that he would return to the property at Goolwa North when that was done. That assertion was also denied by the plaintiff. She was cross‑examined extensively about her physical contribution to the construction of the Kanmantoo house and it was put to her that she did not do the work that she claimed she did because she was too weak and tired. That was denied. She was also cross‑examined extensively on the topic of how involved she was in the business and therefore she should be responsible for the debts of the business. She however claimed that a restraining order was taken out against her not to be involved in the business and that effectively stopped her from being a partner in the business. However as the case evolved the defendant’s claim for contribution from the plaintiff for the debts of the business has failed to materialise (transcript page 313). It was put by the plaintiff that the shortfall of $9,000 for the purchase of the Goolwa North property came not from her visa card but from funds from the business. There was cross-examination about a number of incidents between the two which caused much agitation between the parties but which I found to be irrelevant. As I emphasised at the time I am not here to decide who was at fault for the break up of the relationship. It was also put and denied that she caused substantial damage to the Goolwa North property before she left in November of 2000.
I had tendered before me medical records of the plaintiff for the purposes of exploring the condition of hypoglycaemia which on the defendant’s case prevented her from doing the work that she says she did on the Kanmantoo property. Those records indicate that the plaintiff had a tonsillectomy in November of 1995 and was re-admitted a week or so later for a couple of days. There is no material before me on those records of the plaintiff suffering from hypoglycaemia.
It is the plaintiff’s case as I understand it that she is entitled to a portion of the proceeds of the property at Goolwa North because of her contribution to that property which also includes her contribution to the Kanmantoo property in the terms of the criteria set out in Section 11 of the Act. She also claims an amount for maintenance of the two children from the date of separation until trial. And she also claims an amount for occupational rent. She denies that she is liable for any of the debts of the partnership. I turn to the case for the defendant.
Case for the Defendant
The defendant gave evidence and did not call any other witnesses. As in the plaintiff’s case there was much material that was simply not relevant to the decision that I have to make. There was much bitterness between the parties and the defendant when giving evidence was still highly emotional about the break up of the relationship. I have therefore tried to focus on those factors which are relevant to my decision pursuant to the Act.
The defendant gave evidence that he first met the plaintiff in November of 1993. He said that although he was employed as a Police Officer his main interest was in yacht building. He gave evidence that he separated from his wife in January 1994 and lived at the Police Academy at Taperoo and then in August of 1994 he took accommodation near the plaintiff’s unit. He said that at that time their relationship was a casual one. He gave evidence that at the outset of their first meeting in November of 1993 she complained of hypoglycaemia and was often weak and trembling and physically unable to perform many normal tasks. He then gave evidence contrary to what the plaintiff said that he acquired the property at Kanmantoo to move away from her as distinct from setting up the premises for them to live together. It was in September of 1994. He said the plaintiff often visited him at Kanmantoo but he was working as a Senior Sargent of Police 12 hours a day and living on the property on his own and he spent his off duty hours building the house. He then said that in January of 1995 she claimed that she was pregnant and that he was the father and this came as a shock to him. The defendant gave evidence that he continued to work as a Police Officer through 1994 to 1995 and was living on his own in what was initially a shed at Kanmantoo and was building the house. He also built a shed on the property. In January of 1995 the plaintiff came to him looking for a more substantial relationship and telling him that she was pregnant with their child. He gave evidence that he was of the view that she was looking for him as a meal ticket. While working as a Police Officer the defendant was grossing approximately $1,600 a fortnight. He also gave evidence that the plaintiff said to him that if she was permitted to move into the property at Kanmantoo she would contribute $16,000 to the property. She promised to bring that amount of money into the relationship. He said in evidence that she in fact lied to him and that money was never brought into the relationship.
There was talk between the parties of the defendant taking a salary package which he eventually did. That package was taken in December of 1995 and it was agreed between he and the plaintiff that $40,000 would be applied towards the house. He gave evidence that during the period of their relationship she would disappear for long periods of time often indicating the relationship was over and she did not wish to return. He said she would often drop the children at the day care lady down the street and vanish for an entire day or go to her brother’s place.
He gave evidence that he sold his vintage car that he had been working on for about six years for $4,000 and with that money installed a septic tank and toilet to replace the toilet which I understand was very basic. He gave evidence that he did that on request from the plaintiff. He gave evidence that when he first met the plaintiff she appeared fit and healthy and she told him that she had been a marathon runner and a marathon swimmer and a triathlon athlete and often she would disappear to the Mount Barker gym for two sometimes three days a week but would return tired, exhausted and dizzy and just wanted to rest. Instead of helping with the building of Kanmantoo and indeed doing the work that she claimed she did the defendant gave evidence that she was often not at Kanmantoo and was often complaining about being sick.
He gave evidence of an occasion where she damaged his boat and the Police were called. He also gave evidence that when deciding to buy the Goolwa North property he made it clear to the plaintiff that the property represented a conversion of his separation package. He said he made it clear to the plaintiff that the property like Kanmantoo was his and should remain his. He said that he had proposed marriage to her twice but received no commitment from her. He gave evidence that the reason he put the Goolwa North property in joint names was as a result of a promise that she would remain in the relationship. He said that she agreed to those terms and the property at Goolwa North was in fact put into joint names.
He then gave evidence of a restraining order that was taken out on 24 November 1998 (Exhibit D41). He gave evidence that it was his intention that she continue her involvement in the business despite the restraining order and that her liabilities continued.
He then gave evidence of a conversation he had with the plaintiff in which the plaintiff threatened him with false allegations (transcript pages 600-602). As the defendant was unrepresented I had to hear the whole of that conversation but I found it of little use and in fact irrelevant to the decision that I have to make. In my view it has nothing to do with any order which has to be made in relation to the distribution of property pursuant to the Act.

The defendant in his evidence in chief summed up his position thus (transcript page 607):-
"AFor the whole 24 years of my working life I have had faith in the capacity of this court to dispense justice fairly. In the years I have dedicated to the pursuit of truth I still hold to my belief that honesty will prevail. I therefore believe that this case can be distilled down to one fundamental issue: whether there was a meeting of minds between Christine and I over the ownership of Kanmantoo and at the time of purchase of Goolwa. I say quite simply to you that there was. This humble little house is my home. I know it and she knows it and so does God. I say to you that even though Christine and I shared a deep and passionate relationship with massive changes to lifestyle and values and that I loved her totally there was never any doubt that Goolwa was a conversion of my separation package and remained mine. It is the one unchanging element of our relationship. And I can see now that people love in different ways and for different reasons. All I can say to you is that Kanmantoo and the Goolwa house is a conversion of my separation package and that the plaintiff has always agreed to that because we discussed it often. Its current value is the same as if I had invested the package in the bank. She agreed with me that it was my property, she would be in the relationship for life, she said that she loved me and she understood that the property was to remain mine. I can’t explain the damning notes I found in her handwriting, her admissions in this regard and their implications of deception. Further reflection on these deceptions sadden me. I can’t explain why she now says that she never agreed that it was to remain mine. That agreement and understanding was clearly in place. It mattered not to me in what form the purchase of sale agreement was in, because I never dreamt that she would make an issue of it. I never believed in my life that in order to protect my home I would be asked to lay down in front of a bulldozer driven by a man who lives in a mansion at Flagstaff Hill, so I am quite simply asking the court to believe me in this matter. My recollection of our numerous discussions about this is very clear. I am prepared to lose my humble home and the home of my family because I know I am right and my partner Kate supports me in this and I have no further submissions on this matter and with great sadness I close my case.”
It can be seen that from his evidence I had no material before me to substantiate his claim that the plaintiff was responsible for the debts of the partnership. I had no evidence of the profits of the partnership or indeed evidence of the debts of the partnership. I was therefore of the view that that part of the defendant’s claim was doomed to failure. I set out the following discussion which took place between myself and the defendant at the end of his evidence in chief (transcript page 608):-
"QThank you. There is just one thing I am confused about. I know you are feeling a bit emotional at the moment. We have dealt with the house and you have given evidence as to why you say she should not have an interest in the house at all. What about these debts that you say she should pay half of to offset that amount. Are those debts that are set out in para.24 of your document, are they the debts.
AI want to be able to look at my children and say that I have done nothing to bankrupt this woman, their mother, and I will not give evidence of any debts in relation to this relationship unless I am asked by my friend.
QIn other words, this is what I’m – in fairness to you, seeing you haven’t got a lawyer, there’s no evidence before me about those debts, you have claimed them but there is no evidence. Do you want to give evidence about that.
AI have –
QOr do you want to confine this inquiry to the question of the house.
AI want to confine it to the question of the house, as I have for the last four days. I hoped that conscience would emerge from the plaintiff and I have, as is my right, asked her a number of questions about our entire relationship.
QYes.
AAnd for the purpose of being able to ask those questions they were included in my statement of claim, but I make it quite clear that I want to be able to say to my children down the track that I did nothing to bankrupt their mother.
QYes.
AAnd that no evidence that would bring that about has come from me voluntarily, but I am very prepared to cooperate with anybody who asks me questions in that regard.”
It appears clear therefore that the case for the defendant is confined to what orders should be made in relation to the property at Goolwa North.
In cross-examination by Mr Birchall the defendant indicated that although his pleadings said the relationship commenced in May of 1995 he now says it was February of 1995. He denies that it was October of 1994. He also agreed in cross-examination that in a Family Court application for access he admitted that he was the father of the two girls (Exhibit P53). He now says in this Court that he doesn’t know. The reason he now has doubts was because of a conversation he had with some person. The question of his paternity of the two children Melanie Jennifer Hogg and Vanessa Louise Hogg is in my view beyond doubt. I accept the plaintiff’s evidence that both pregnancies were planned and that she did not have sexual intercourse with anyone else at the relevant times. There was also evidence that he was present at the birth of both the daughters. There was further evidence of paternity contained in both birth certificates and in a number of letters in which the defendant wrote to the plaintiff.
It was agreed that Kanmantoo was purchased in June of 1994 (Exhibit P19 – Memorandum of Transfer for Kanmantoo property). He was also cross-examined about why he put the Goolwa North property in joint names (transcript page 717):-
"QWhat’s being asked by Mr Birchall is this, and it’s been put very clearly to you, you’ve got all these criticisms of her not helping in certain areas, of not contributing in certain areas. Why on earth, that being the case, did you put the property in joint names.
ABecause I loved her madly and passionately and even though she had on a number of occasions said that she wouldn’t marry me, I believed that it was a strong relationship and one that would last forever. I said before and I’ll say it again, that it was put in joint names to protect the interests of the children, in the event of the death of either of us, quite clearly, without any problems, and that I did it because we had a conversation prior to signing the paperwork and she reinforced that it was my property, that it would never be in dispute, that it was a conversion of my separation package and she acknowledged that and agreed to it and when we went down to the office of Des Menzel, Weston Raine & Horne and the paperwork was there ready to be signed, it was laid out already pre-completed, just awaiting the signature and at that point, bearing in mind the conversations that I had had with her, the assurances that she had given me about her intention to stay, she led me to believe that she was not planning to leave, had made no steps to do so and that she would make no claim in relation to the property. So as a result of that, that belief that I had, a reasonable belief, I allowed – we just signed the paper that Menzel presented to us.
QYou bought Kanmantoo in your own name, didn’t you.
AI did.
QAnd you’d been on the receiving end of a property settlement with your ex-wife where you had got nothing of the house, correct.
AWhen?
QOctober 1994, I think you told us. Is that right or not.
AI bought Kanmantoo, as I said, in July of 1994 and yes, I received property from my ex, that’s correct.
QNo, perhaps it’s my fault. You had had a property settlement following your separation from your first wife, hadn’t you.
AYes.
QAnd she got the whole house, didn’t she.
AI gave her the whole house, yes.
QWas that a house that was in joint names.
AI can’t recall.
QPardon me, you can’t recall whether the house that you owned with your first wife was in joint names or not, is that what you are telling his Honour on oath.
AYes.
QAnd despite all of these criticisms that you’ve got of the plaintiff and more, all of which you knew before April 1999, you still put the house in joint names, is that right.
AI loved her and she deceived me.
QIn your pleadings you say that the reason that it was put in joint names was to make succession trouble free in the event you died; did you say that in your pleadings.
AThat’s correct.
QI think para.17.
HIS HONOUR
QIs that right.
AThat’s correct, I recall saying that.
XXN
QCan you just explain that to me, why you needed to put the property in joint names to make succession trouble free in the event of your death.
AShe came to me and she said that it was a good idea and I didn’t look into it any more than that.
QI beg your pardon.
AShe came to me and she said it was a good idea, and I didn’t look into it any more than that. I was working with chemicals, with ethyl ketone peroxide, which is a very toxic chemical, I was spraying those chemicals and I was working in a hazardous environment and I was in my mid forties so it made perfect sense to me. She said she had looked into it and that it would be in the best interests if it was placed in joint names and so I did.
QAre you saying you put this house in joint names because she told you to.
AI did many things she told me to do.
HIS HONOUR
QThe answer is ‘yes’, is it.
AThat’s one of the reasons, yes.”
It was also put and agreed that the bridging finance for Goolwa North of $120,000 was also in joint names. That is before that amount was paid off (Exhibit P23). He then gave an explanation as to why he went through the ludicrous exercise of selling the property at Goolwa North to the plaintiff for $1. I set out the following passage of evidence (transcript page 729):-
"QI think the contents of the document speaks for itself, but did you sell your interest in the property for $1.
ANo, I did not.
QYou did ask the plaintiff for $1, didn’t you.
AYes, she gave me $1 and I gave her this document.
QWhy didn’t you then sell it, why doesn’t that mean that you then sold it to her for $1.
ABecause I said to her I didn’t understand why she had treated me this way, that despite all the conversations we’d had when I was trying to work out why she was behaving the way she was – I went to her and I said, having regard to the number of times that she’d come and gone from the relationship, how upset I was and I said ‘I want to make this offer to you. I am prepared to give you the entire house if, at the end of a three month period, a trial period of reconciliation, if at the end of that you still believe that our relationship is over, the house is yours and as a sign of good faith here is a document that I am very happy to become effective at the end of that three month period if, in your mind, you believe that our relationship is over’.
HIS HONOUR
QIs that a desperate attempt to get the relationship back on course.
AI was absolutely desperate, yes.
QIs that a summary, is that an accurate summary.
AYes.
QAnd in that sense you are saying that document is not really to be taken seriously.
AShe looked at it and –
QHang on.
AThat’s correct. She looked at it and she started to cry and so was I and she said ‘No’ and she just walked inside. That’s the last I saw of her.”
As I have already indicated there is no significance in that offer to sell the property to the plaintiff for $1. I accept the defendant’s answer to me that that was just a desperate emotional act which is not to be taken seriously.
At the conclusion of the evidence it appears that the relevant disputes important to the making of my decision are as follows:-
a.The length of the relationship. Whether it is late 1994 as the plaintiff claims or earlier 1995 as the defendant claims. The significance of the difference in my view is slight.
b. The input that the plaintiff had into the work done at Kanmantoo.
c. The plaintiff’s contribution as a homemaker and parent.
In my view the differences about how the relationship broke up, their disputes during the relationship and the way they treated each other are irrelevant to these present considerations. There appears to be very little dispute about the amount of money that each party brought into the relationship and there appears little dispute about their respective incomes during the relationship (with the exception of the partnership profits about which I have no evidence).
Conclusions
I deal first with the defendant’s claim that the plaintiff is liable for her share of debts of the partnership. That claim is doomed to failure because there is no evidence of either the profits or debts of the partnership. I do not need to decide whether the plaintiff would be liable if she was in fact a partner.
The Goolwa North Property
I make the following findings:-
1.The plaintiff and the defendant were in a de facto relationship from approximately October 1994 until May of 2000. I accept the plaintiff’s evidence on that topic in preference to the evidence of the defendant.
2.I also accept that the defendant planned to move to Kanmantoo from Nairne in preparation for the plaintiff and her children joining him. The very narrative of events beginning with their sexual relationship starting in late 1993, the defendant leaving his wife and moving into a unit near the plaintiff in Nairne, and then the movement to Kanmantoo is a clear indication that the plaintiff’s evidence is to be accepted. I am also fortified by Exhibit P1 which speaks for itself.
3.I find that Melanie Jennifer Hogg and Vanessa Louise Hogg are the children of the plaintiff and the defendant for the reasons set out earlier in my judgment.
4.I accept the plaintiff’s evidence of the work she did and the contribution she made towards Kanmantoo. That is important to my consideration of the matters set out in Section 11(1)(b) of the Act. I find that her contributions were of a homemaker and parent and also she did the physical work in the garden which she has described. I reject the defendant’s evidence that there were complaints of hypoglycaemia which caused her not to work and to be absent for much of the time.
5.I find that on receiving a lump sum of $113,000 for superannuation the bulk of $72,000 was spent towards paying off the Kanmantoo property and the acquisition of materials for renovations to a shed on the property and improvements to the property in general. In other words the basic financial contribution to the property at Kanmantoo was provided solely by the defendant.
6.During the course of the relationship the plaintiff was in receipt of Government benefits and after the defendant retired from the Police Force he was in receipt of either unemployment benefits or Austudy while he was studying law. There is no evidence that the business provided any income. I have no evidence before me as to how much he received by way of unemployment benefits or by way of Austudy.
7.I find that the plaintiff incurred debts during the relationship which were for the benefit of the relationship. Namely a Commonwealth Bank loan of $4,000 towards the renovations of Kanmantoo and debts incurred on a visa card and to AGC which she spoke of in her evidence and have previously been set out. I also find that she contributed to the payment of bridging finance which has also been set out.
In considering the property at Goolwa North which was financed by the sale of Kanmantoo I have to weigh up the financial contribution made by the defendant with those factors set out in Section 11(1)(b) of the Act which can be attributed to the plaintiff. I also bear in mind the smaller contributions made by the plaintiff to Kanmantoo which flow through to Goolwa North. I do not consider an order for the division of the property is appropriate. The defendant is living there, he almost totally financed the buying of the property and the relationship of a little over five years was relatively short. However the plaintiff must be compensated for those matters concerning her work, the work towards Kanmantoo and her parenting and homemaking contributions. The valuation of Mr Higgins of Goolwa North of $140,000 is undisputed. I reject the argument of the plaintiff that because the property was in joint names that alone is sufficient to justify an equal distribution of the proceeds of the sale of the Goolwa North. In my view the criteria set out in Section 11(1)(b) of the Act still have to be adhered to. I bear in mind in setting the appropriate lump sum to which the plaintiff is entitled the question of her parenting and homemaking contribution and also the question of occupational rent. Before I indicate my finding as to the appropriate amount to which the plaintiff is entitled I turn to the questions of maintenance and occupational rent.
Maintenance (from separation until the trial date)
The plaintiff has relied upon the decision in Arnold v Dalton [2002] SASC 429 as a basis for asking for an award of $25,000 for maintenance which has not been paid by the defendant for the children of the relationship from the time that the relationship ceased to the date of trial. In that case the Honourable Justice Bleby with whom the Honourable Chief Justice and Honourable Justice Besanko concurred said the following (judgment page 10):-
“Mr Dalton complains that, by quantifying and basing an order upon past unpaid maintenance and other contributions, the Court is, in effect, ordering the payment of maintenance which it has no power to do under the Act. It is correct that the Court does not have power to order maintenance payments. The Court is only concerned with the division of property. However, there is an explicit requirement in s 11(1)(b) of the Act to take into account the financial and other contributions actually made by one party towards another and for the purposes of children of either or both parties. In that regard the approach of the trial Judge cannot be criticised.
There is a question as to whether the contributions brought to account should only include such contributions made or not made during the subsistence of the de facto relationship, and not after it has ceased. In my opinion there is no reason so to limit the period. There is nothing to suggest that the financial contribution by way of maintenance of or addition to property made by one partner after the relationship has ceased should not be brought into account. The same should apply to contributions (including homemaking and parenting contributions) made during such a period. Furthermore, the definition of “de facto partner” contained in s 3 of the Act includes “a person who has lived in a de facto relationship”. For the purposes of the Act, the former de facto partners remain de facto partners until the time that an order is made. So construed, s 11(1)(b) would include reference to contributions made after cohabitation has ceased. I therefore conclude that s 11(1)(b) requires an assessment of the financial and other contributions of the partners to the maintenance of each other and of their children up to the time that the order is made. However, it cannot look beyond that date.”

As a result of that decision it is argued that in this case from November of 2000 until the 26 March 2003, although they are living apart, the plaintiff and the defendant remained de facto partners until the time that an order is made. It is therefore argued by the plaintiff that during that period there should be an assessment of the financial and other contributions of the partners to the maintenance of the children. It is clearly correct that the time for assessing the financial circumstances of the parties is the time of hearing (see Evans v Marmont (1997) 21 Fam LR 760 at 764; Parker v Parker (1993) 16 Fam LR 863 at 875; Love v Chidley [2002] SADC 36). Thus ongoing contributions to say a mortgage after the cessation of the relationship would have to be taken into account. However, I doubt that the cost of maintaining children of the relationship after its end is a contribution which can be taken into account. This issue of “maintenance” is discussed at length in Love v Childley (supra) at paras 136, 137 and 132. Whilst it is tempting to reason that Section 11(1)(d) empowers the Court to make orders akin to maintenance or at least bring that into the reckoning given the other legislative models in existence providing for maintenance the “silence (in the SA Act) on a topic of such paramount importance must indicate that Parliament did not intend to provide for it” (see Love v Chidley (supra) at para 136). There is a Commonwealth agency empowered to deal with maintenance. Further, such an interpretation cannot sit with Section 9 of the Act (supra) which contemplates that an application to a Court for the division of property may be made after a de facto relationship ends. In my view the decision in Arnold v Dalton must be confined to its own facts and does not contemplate the long period of three years between the separation of the parties and an application to a Court for the division of property. That aspect of the plaintiff’s claim for an assessment of contribution to maintenance of the children after separation in my view fails. However I emphasise that the fact that the plaintiff supported the children of the relationship until the time of separation is a factor to be taken into account when considering the criteria set out in Section 11(1)(b) of the Act.
Occupational Rent
The final head of contribution claimed by the plaintiff is occupational rent. It is argued by the plaintiff that she having been forced out of the Goolwa North property in November of 2000 is entitled to an amount from the defendant for his occupation of the premises. It has been established that since the time of her departure he has lived in sole occupancy without the children in the Goolwa North property from November 2000 to March 2003. I accept the validity of that claim pursuant to the principles of the decision in Nguyen v Scheiff (2002) 29 Fam LR 177 and the decisions of this Court in Condoluci v Condoluci [2002] SADC 159 at pages 29-30 and Simmons v Williams [2002] SADC 168 at pages 28 and 29. From those decisions it is a relevant factor that the defendant has lived in the premises without paying any compensation for his occupation.
Mr Higgins the valuer gave evidence that the likely rental for the Goolwa North property from the 30 May 2000 was in the vicinity of $115-$135 per week. However instead of setting a precise amount for that part of the plaintiff’s claim in my view it is more appropriate that it be considered as one of the factors which I take into account in valuing the relevant contributions of the parties. In my view it is more appropriate that it be considered as one of the factors which I take into account in assessing the appropriate division of the property.
Conclusion
I take into account the following factors in considering the matters required by Section 11 of the Act:-
1.The substantial financial contribution made by the defendant to the purchase of Kanmantoo property, the sale of which financed the purchasing of the Goolwa North property.
2. The value of the Goolwa North property is $140,000.
3.The contributions I found that were made by the plaintiff towards the establishment of the Kanmantoo property.
4.Homemaking and parenting contributions that I found the plaintiff made during the time of the de facto relationship.
5.The credit she should be given for occupational rent.
In weighing up all of those factors I find that the plaintiff should be entitled to 40% of the value of the Goolwa North property before encumbrances are deducted. On the evidence of Mr Higgins the property is worth $140,000 which means the plaintiff is entitled to a lump sum of $56,000.
Summary
I find that the defendant should pay to the plaintiff the lump sum of $56,000 pursuant to Section 10(2)(c) of the Act. I will hear the parties as to interest and costs. On payment of the judgment debt the plaintiff will transfer to the defendant her interest in the property. The costs of the transfer are to be shared. I will allow the defendant three months in which to pay the judgment debt. If it is not paid within that period of time I order that the property be sold and from the net proceeds the total judgment be paid by the defendant to the plaintiff. If it is necessary to sell the property the amount of judgment is still $56,000 (plus Court costs and interest if allowed), irrespective of what price is obtained for the property on sale. I give liberty to apply.

[2003] SADC 92

18 June 2003