Saric v Steward

[2005] NSWSC 43

CITATION:	Saric v Steward [2005] NSWSC 43
HEARING DATE(S):	27, 28 and 29 September, 12 October 2005
JUDGMENT DATE :	10 February 2005
JURISDICTION:	Equity Division
JUDGMENT OF:	Master McLaughlin at 1
DECISION:	(1). I order that the proceedings be stood over to a date to be fixed by arrangement with my Associate, for the bringing in of short minutes and, if desired, for argument as to costs.

CATCHWORDS:	Family Law. De facto relationship. Date of termination of relationship. Duration of relationship. Three separate periods of cohabitation. Significant periods of separation. Whether the parties have lived together in the relationship for not less than two years. Child of the parties. Respective contributions of the parties. Domestic relationship agreement. Significance of agreement where by its terms its provisions are no longer in force.
LEGISLATION CITED:	Family Law Act 1975 (Commonwealth) Property (Relationships) Act 1984
CASES CITED:	Black v Black (1991) 15 FamLR 109 Davey v Lee (1990) 13 FamLR 688 Evans v Marmont (1997) 42 NSWLR 70 Green v Robertson (1995) 36 NSWLR 96 Jones v Grech [2001] NSWCA 208 Mathieson v Wallis [2001] NSWSC 931 Nguyen v Schieff (2002) 29 FamLR 177 Roy v Sturgeon (1986) 11 NSWLR 454 Sullman v Sullman [2002] NSWSC 169 Wallace v Stanford (1995) 37 NSWLR 1 Wallis v Mathieson [2002] NSWCA 350
PARTIES:	Maya Saric (Plaintiff) Jason Bruce Steward (Defendant)
FILE NUMBER(S):	SC 4909 of 2002
COUNSEL:	Mr. M Anderson (Plaintiff) Ms. M. Bridger (Defendant)
SOLICITORS:	Doolan Wagner & Callaghan (Plaintiff) Warren McKeon Dickson (Defendant)

LOWER COURT JURISDICTION:

- 26 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Thursday, 10 February 2005

4909/02 MAYA SARIC -v- JASON BRUCE STEWARD

JUDGMENT

1 MASTER: These are proceedings under the Property (Relationships) Act 1984.

2 By statement of claim filed on 2 October 2002, the Plaintiff, Maya Saric, claims relief by way of adjustment of the interests of the parties in property, pursuant to section 20 of the foregoing Act.

3 The Plaintiff by that pleading asserts that she and the Defendant, Jason Bruce Steward, lived in a de facto relationship during the periods from 20 June 1997 to 27 October 1997, from February 1998 until April 1999 and from 5 January 2000 until 26 October 2001. Those dates were altered somewhat in the evidence of the Plaintiff (the first period being said by her to extend from June 1997 to 1 November 1997, the second period from April 1998 to 1 April 1999 and the third period from January 2000 until 26 October 2001).

4 The Defendant agrees that he was in a de facto relationship with the Plaintiff. However the periods of that relationship asserted by the Plaintiff are disputed by the Defendant. According to the Defendant, the de facto relationship came to an end in May 2001, although he agrees that the parties continued to reside together from May 2001 until 26 October 2001.

5 The substantive relief sought by the Plaintiff in her statement of claim includes relief in respect to two pieces of real property, being that situate at and known as 79 Gowrie Street, Newtown (“the Gowrie Street property”) and that situate at and known as 56 Susan Street, Newtown (“the Susan Street property”), and in respect to a holiday time-share, and an order that the Defendant pay to the Plaintiff the amount of $35,000.

6 The Defendant on 24 June 2003 filed a cross-claim. By that pleading the Defendant also claims relief by way of adjustment of the interests of the parties in property, pursuant to section 20 of the Property (Relationships) Act.

7 The substantive relief sought by the Defendant in that pleading also relates to the Gowrie Street property and to the holiday time-share, and includes relief in respect to a Visa card debt in the joint names of the parties.

8 During the course of the hearing the nature of the relief being sought by the Plaintiff altered somewhat, especially in respect to the Susan Street property and the amount of monetary payment claimed (that amount being reduced to $10,000). Essentially, the Plaintiff is now seeking the transfer to her of the Defendant’s interest in the Gowrie Street property; the transfer to her of the balance of the proceeds of sale of the Susan Street property (which was sold by the Defendant on 31 May 2003 for $690,000, the net proceeds of sale (after discharge of mortgage and payment of commission, legal fees and the like), in an amount of $363,000, having been invested in the joint names of the parties, pending the outcome of the present proceedings); and the payment by the Defendant to the Plaintiff of the sum of $10,000.

9 Various other items of relief now sought by the Plaintiff in respect to the holiday time-share and the Visa card are agreed to by the Defendant.

10 I shall later in this judgment refer in greater detail to the relief which is sought by each party.

11 The Plaintiff, who was born on 5 May 1963 is now aged 41, whilst the Defendant, who was born on 13 September 1968, is now aged 36. Each of the parties had previously been married and had been in other relationships before the commencement of the relationship which is the subject of the present proceedings.

12 In consequence of her separation from her first husband in 1992 and their subsequent divorce in 1994 the Plaintiff became the sole owner of a house property situate at and known as 22 Birdwood Avenue, Pagewood (“the Pagewood property”), which had been purchased jointly by them in 1988 for $179,000. On 1 April 1994 the Plaintiff acquired (she said “incorporated”) a company, Corporate Coach Australia Pty Limited, of which she is the sole shareholder and of which she is (and since February 1998 has been) the sole director. The Plaintiff has since then used that company (to which I shall refer as “Corporate Coach”) as the vehicle through which she has conducted her commercial and business activities, which included what she described as a training and consulting business.

13 At the time when the Plaintiff and the Defendant commenced their relationship the Plaintiff was living with her son Kailin Petar Saric-Williams (born on 23 August 1996) at 122 Union Street, Erskineville (“the Erskineville property”), which she had received as a gift from her parents several months earlier, in April 1997. The Defendant, who at that time was married to, but separated from, Rosalynd (née Murray), was the father of a son, Jarrah (born on 1 August 1995). The Defendant had access to Jarrah for four days each fortnight, Jarrah living with his mother Rosalynd for the other ten days each fortnight. From the commencement of the relationship the household of the parties consisted of the Plaintiff, her son Kailin, the Defendant, and his son Jarrah (for four days each fortnight).

14 Of the relationship of the Plaintiff and the Defendant was born a son, Luke, on 10 November 2000. From the time of his birth until the final separation of the parties Luke was a member of the foregoing household.

15 At the time of the commencement of the relationship in mid-1997 the Plaintiff had the following assets:

House property situate at and known as 22 Birdwood Avenue, Pagewood (purchased in 1988 for $179,000)
House property situate at and known as 122 Union Street, Erskineville (acquired in April 1997)

Corporate Coach Australia Pty Limited

1983 Mercedes 230E motor vehicle (purchased in 1995, for $19,000)

Furniture, jewellery and shares (having an estimated value of $20,000)

Shares held in trust for Kailin

16 At the commencement of the relationship the Defendant (who had tertiary qualifications in engineering) was employed as a mechanical engineer by Thompson Marconi Sonar, earning about $51,000 a year. His assets at that time consisted of a Daihatsu Charade motor car (which had been acquired by him in 1998 for about $21,000 and which he subsequently sold in September 1998 for $13,000), an AMP investment bond, a superannuation entitlement, and furniture and personal effects (the respective values of which items did not emerge from the evidence).

17 At no stage throughout the relationship did the parties intermingle their finances to the extent of conducting a joint bank account. Apart from the Gowrie Street property (which they purchased in early 1998 (settlement being effected on 9 April 1998)), they did not acquire any joint property. However, whilst living together they each contributed, both directly and indirectly, to household expenses and outgoings, although the extent of such contributions was a matter of dispute between the parties.

18 Both before and throughout the periods of their relationship the Plaintiff (both in her own name and through the vehicle of her company, Corporate Coach (which for this purpose, at least since February 1998 (when she became the sole director thereof), may be regarded as being the alter ego of the Plaintiff) was involved in the buying and selling of shares and in a number of real estate and other business transactions. Details of those transactions were placed before the Court.

19 Throughout the first period of the relationship the Plaintiff was pursuing studies at the University of Sydney for the degree of Bachelor of Science, majoring in Psychology. Her income throughout that period consisted of rent of $290 a week received from the Pagewood property, child support (from Kailin’s father) and a supporting parent’s pension. The Plaintiff was cross-examined concerning her entitlement to receive that pension whilst in a de facto relationship. She said that she had informed the appropriate pension authorities of the fact of her relationship and of all details of her income and assets. However, the Plaintiff offered to the Court no documentary or other evidence in support of that assertion. The sole evidence supporting the disclosure by the Plaintiff to the pension authorities of her financial and material circumstances was merely her own say-so during the course of cross-examination. It is relevant in this regard to record that the Plaintiff in re-examination said that she had been required to make repayments to the Department of Social Security (the evidence was far from precise concerning the amounts or the bases for those repayments). Further, that she had not been eligible to receive a supporting parent’s benefit after 1999.

20 During the course of the relationship the Plaintiff at times worked as a mortgage broker. From May 1999 until November 2000 (that is, for part of the third period of the relationship and for some months before the commencement of that third period) the Plaintiff was retained by contract from SOCOG. The Plaintiff’s earnings under that contract were paid to Corporate Coach, from which company the Plaintiff received director’s fees of $5,000 a month.

21 In April 1998 the Plaintiff and the Defendant conjointly purchased as tenants in common in equal shares the Gowrie Street property. The purchase price of $285,000 was funded by way of a deposit of $28,500 provided by the Plaintiff from the assets of Corporate Coach. The balance of about $157,000 was provided from the proceeds of two loans, each secured by mortgage over the property. The Plaintiff, through Corporate Coach obtained a loan of $158,000, from which sum she provided $111,532, whilst the Defendant obtained a loan of $145,000, the totality of which amount went towards the purchase price. In addition, the Plaintiff paid stamp duty and contributed towards legal fees and incidental costs (totalling about $10,700), whilst the Defendant paid water rates and also contributed towards legal fees and incidental costs.

22 From the time of its acquisition the Gowrie Street property was the home of the parties and their children throughout the remainder of their relationship.

23 During the course of the second period of their relationship the parties executed a deed dated 26 August 1998, entitled “Cohabitation Agreement”. That deed makes express provision concerning the Gowrie Street property, a contract to purchase which the parties had entered into some months before the date of the deed. The deed also makes provision concerning the assets owned by the parties before the commencement of their relationship and concerning any property which might be purchased by them during cohabitation. The deed identifies the assets owned by each of the parties at the commencement of their cohabitation, and each party acknowledges that his or her contribution to the acquisition, conservation and improvement of the assets of the other party has not added substantially to the value of those assets.

24 The cohabitation agreement of 26 August 1998 would appear to come within the definition of a “domestic relationship agreement” contained in section 44(1) of the Property (Relationships) Act.

25 I would here observe that the deed is accompanied by a certificate dated 5 August 1998 by a solicitor who independently advised the Defendant of the matters referred to in section 47(1)(d) of the Act. However, there is no similar certificate of independent advice in respect to the Plaintiff.

26 The absence of any such certificate in respect to the Plaintiff precludes the provisions of section 47(1) of the Act from being activated (“… the court shall not, except as provided by sections 49 and 50, make an order under Part 3 in so far as the order would be inconsistent with the terms of the agreement”).

27 Nevertheless, it will be appreciated that, even if the cohabitation agreement, in the absence of a certificate of the nature contemplated by section 47(1)(d) of the Act, does not preclude the Court from making an order for the adjustment of the interests of the parties in property pursuant to section 20 of Act (that section coming within Part 3 of the Act), the Court is entitled to have regard to the terms of the cohabitation agreement as evidence of the intentions of the parties at the time when the agreement was entered into.

28 Quite apart from the effect of the absence of the foregoing certificate upon the enforceability of the cohabitation agreement, the agreement itself, by clause 3.10, provides, in effect, that in the event (which happened) that the parties had a child born of their relationship the agreement would no longer be in force.

29 Also during the second period of the relationship the Defendant purchased in January 1999 a house property situate at and known as 56 Susan Street, Newtown. The entirety of the purchase price, $290,000, as well as stamp duty and associated costs were provided by a loan from Westpac Banking Corporation in the name of the Defendant, secured by mortgage over the property. That property was purchased by the Defendant as an investment, and he was solely responsible for the loan repayments, which he met from rental income, supplemented, at times, from his own income. The Defendant was also solely responsible for the payment of the statutory outgoings, insurance and other costs relating to this property.

30 At the time of the purchase of the Susan Street property the Plaintiff provided a guarantee to Westpac Banking Corporation in an amount of $73,000. That guarantee was never called upon. However, it was the case for the Plaintiff that by accepting liability under the guarantee (even though, as a practical matter, she was never called upon to advance any money or in any way to meet the guarantee) she enabled the Defendant to acquire that investment property, and that otherwise the Defendant would not have been able to do so. The Defendant disputed that assertion on the part of the Plaintiff, it being the Defendant’s evidence that he did not request her to provide the guarantee and that the Plaintiff gave the guarantee because, in her capacity of working as a mortgage broker, she earned a commission in providing it. The Defendant submits that there is no evidence that, without such a guarantee from the Plaintiff, he could not have purchased the Susan Street property. Under cross-examination the Defendant even went so far as to say that (presumably at the time when it was given) he was totally unaware of the Plaintiff’s guarantee. The Defendant disputes that the Plaintiff by giving that guarantee made any financial contribution, direct or indirect to the acquisition, conservation or improvement of the Susan Street property.

31 In July 2000 the Defendant purchased for $86,000 a property situate at and known as 123 Michael Street, Jesmond (“the Jesmond property”). That purchase was funded by an amount of $20,000 provided by the Defendant (sourced mainly from moneys which the Defendant had received by way of settlement in a claim for victim’s compensation), and an advance of $68,800 from the Westpac Banking Corporation secured by mortgage. The Plaintiff made no contribution towards the purchase of the Jesmond property. The Defendant paid the stamp duty ($1,504) and legal costs ($1,555) from his own savings. The property was rented for $150 a week. The Defendant met all mortgage payments, costs and insurance from his own funds.

32 The Jesmond property was sold by the Defendant in September 2003 for $176,000, the outstanding mortgage, which was discharged at the time of settlement, being in an amount of about $70,000.

33 It is not necessary that I should set forth all the details of the various property transactions and financial transactions of each of the parties (in particular of the Plaintiff) during the course of the three periods of their relationship, or that I should set forth details of the earnings of each of them throughout each of the financial years covered by the three periods of their relationship.

34 Suffice it to say, however, that it was essentially the case for the Plaintiff that throughout the various periods of the relationship it was the Plaintiff’s financial and material contributions which supported the Defendant and the children of the parties; whilst it was the case for the Defendant that his contributions, although different from, were, overall, no less than, those of the Plaintiff.

35 It should be recorded, however, that throughout almost the entirety of the periods of the relationship the Defendant was in employment, and that his earnings were considerably greater than those of the Plaintiff.

36 The evidence does not enable the Court to establish the amounts which the Plaintiff was actually earning throughout the relationship. There was a very considerable discrepancy between the information provided by her to the Australian Taxation Office at the appropriate times throughout the relationship and that provided by her in August 2002 in a loan application which she made to the Bank of Western Australia (“Bank West”). I regarded the responses of the Plaintiff to questions concerning that loan application as unbelievable, and as reflecting upon the credibility of her evidence generally. The Plaintiff went so far as to deny that the loan application of 25 August 2002 bore her signature, and to suggest that the documents provided in support of that loan application had been fabricated.

37 I should also here record that I regarded as unsatisfactory the attempted explanations by the Plaintiff under cross-examination concerning what happened to an amount of $320,500, representing the difference between moneys borrowed by the Plaintiff and/or Corporate Coach and the totality of the purchase prices of various pieces of real estate acquired by her or her company.

38 Since many of the allegations of the Plaintiff concerning the date of termination of the de facto relationship and concerning contributions of the nature described in section 20(1) of the Act were totally denied by the Defendant and since many of the allegations of the Defendant concerning those matters were totally denied by the Plaintiff, and since in many instances the evidence concerning such disputed matters consisted solely of the uncorroborated evidence of the Plaintiff on the one hand and of the Defendant on the other, it is appropriate that I should express my views concerning the credibility of each of those persons and the reliance which the Court should place upon the uncorroborated testimony of each.

39 I have already referred to the fact that it is the assertion of the Plaintiff that the third period of the relationship continued from January 2000 until 26 October 2001, whilst the Defendant asserts that the relationship came to an end in May 2001, although the parties continued to reside together from that date until 26 October 2001.

40 The Plaintiff was cross-examined concerning a letter dated 23 July 2001 from her solicitor, Peter Doolan, addressed to the Defendant (Exhibit 1). That letter commences with the statement that the Plaintiff “advises that although you are continuing to reside together under the same roof, so far as she is concerned, the relationship has ended”.

41 That letter, which the Plaintiff agreed had been written upon her instructions, was totally inconsistent with the relationship obtaining after the date of the letter.

42 I regarded the responses given by the Plaintiff concerning the balance of that letter (relating to the Plaintiff’s proposals regarding, in particular, the Gowrie Street property) as being totally unsatisfactory. Quite apart from her refusal to concede that, despite the express terms of the letter, the relationship had already ended before the letter was written, the Plaintiff said that she did not recall her instructions to Mr. Doolan in July 2001, and even went so far as to say that the proposal contained in the letter concerning the disposition of the Gowrie Street property was not in accordance with her instructions to Mr. Doolan.

43 Similarly, the Plaintiff’s responses under cross-examination concerning various other matters in dispute between the parties, were equally unsatisfactory, especially her responses concerning the contributions made by the Defendant towards household outgoings and his non-financial contributions as a homemaker. The Plaintiff was determined not to concede that the Defendant had made anything other than minimal contributions to the relationship. This intransigent attitude of the Plaintiff under cross-examination, in instances where it was abundantly obvious that the Defendant had made some contributions, merely emphasised the unreliability to be placed upon the oral evidence of the Plaintiff. I have already referred to the fact that she was cross-examined concerning the receipt by her of payments from the Department of Social Security whilst she was living in a de facto relationship with the Defendant. I regarded the Plaintiff’s responses on that topic as being totally unsatisfactory.

44 The Plaintiff was receiving a supporting parent’s benefit until April 1999 (that is, until the end of the second period of the relationship). It was her assertion, as I have already recorded, that she informed the Department of Social Security of the fact that she was living in a de facto relationship with the Defendant and of her financial circumstances throughout the relevant periods. The Plaintiff had no documentary material to support that assertion. She had not sought to obtain any forms which she said she had submitted to the Department of Social Security in this regard. I do not accept the evidence of the Plaintiff that she made a frank disclosure to the Department of Social Security concerning her relationship with the Defendant or concerning her financial and material circumstances at the time when she was receiving the supporting parent’s benefit. When pressed under cross-examination upon this topic, the responses of the Plaintiff became evasive. For example, when asked whether she had told the Department of Social Security that she and the Defendant “were living together in a de facto relationship”, the Plaintiff responded, “I did tell them that he lived in my premises”. Further questions on this point elicited only the response, “I don’t recall the exact sentence”.

45 I am in agreement with the submission on behalf of the Defendant that the conduct of the Plaintiff in receiving social security benefits during the course of the de facto relationship constituted a fraud by the Plaintiff upon the Commonwealth. That conduct of the Plaintiff reflects very poorly upon the character of the Plaintiff and the reliability to be placed upon her evidence. (That the Plaintiff may have been required to repay part, or all, of the moneys which she had been paid by the Department of Social Security reinforces the view which I have just expressed.)

46 The Plaintiff in her responses under cross-examination was prepared to admit little in the Defendant’s favour and was most reluctant to admit that the Defendant had made contributions to household expenses and outgoings or as a homemaker or parent. That refusal on the part of the Plaintiff to admit contributions which clearly were made (although the extent of such contributions was certainly in issue) reflects upon the reliability to be placed upon the evidence of the Plaintiff.

47 It was the evidence of the Plaintiff, consisting of nothing more than her own oral assertions, unsubstantiated by any documentary material or by evidence from any other witness, that the de facto relationship obtained after May 2001. The fact that the parties still continued to live under the same roof for another five months does not of itself mean that the relationship continued throughout that period. The Plaintiff’s assertion that it continued until 26 October 2001 (when the Plaintiff and her two children moved out of the Gowrie Street property) is totally inconsistent with the statement in the letter from the Plaintiff’s solicitor to the Defendant of 23 July 2001, which was written upon the Plaintiff’s instructions, that so far as the Plaintiff was concerned the relationship had already come to an end before that date. I am satisfied that the relationship came to an end well before the date of that letter and probably, as asserted by the Defendant, on 12 May 2001, when, according to him, the Plaintiff said to the Defendant words to the effect, “That’s it. You have lost your job. The relationship is over.”

48 The fact that I regarded the Plaintiff as a most unsatisfactory and unreliable witness does not of itself mean that I regarded the Defendant as being any more satisfactory or reliable as a witness. His manner of giving evidence was at times peculiar and eccentric in the extreme, both in speech and in demeanour. The Defendant’s attempted explanation concerning the fate of certain jewellery belonging to the Plaintiff was bizarre.

49 There were various inconsistencies between the Defendant’s affidavit evidence and his oral evidence (including his evidence concerning the jewellery). The Defendant’s statement under cross-examination that his occupation was that of a project manager, when he was, in fact, unemployed, can have been only a deliberate attempt to mislead the Court.

50 I did not regard either party as being a witness upon whose unsupported oral evidence I could confidently rely. Where the evidence concerning any matter in issue between the parties consisted solely of an assertion by one party and a denial by the other party, I am not prepared to accept that uncorroborated assertion.

51 At the termination of the relationship (which, as I have already recorded, I as satisfied came to an end on 12 May 2001) the assets and liabilities of the Plaintiff were as follows.

Interest as tenant in common in equal shares with the Defendant in the Gowrie Street property (said to be worth about $345,000 and subject to a mortgage of $155,000)

Birdwood Avenue property, valued at about $580,000, subject to a mortgage of $520,000 (which mortgage was also secured over the King Street property)

Interest in Corporate Coach Australia Pty Limited

1999 Mercedes A160 motor vehicle (to which a value of $22,000 was ascribed)

Shares held in trust for Kailin

Superannuation policy with MLC, valued at $11,712

Life policy with Sun Alliance

Household furniture (to which a value of $5,000 was ascribed)

Jewellery (to which a value of $10,000 was ascribed)

Gold held in trust for Kailin


Gold held in trust for Luke

Half share with Defendant in holiday time-share (to which a total value of about $12,500 was ascribed).

52 The assets of Corporate Coach, which was the alter ego of the Plaintiff, should also be treated as assets of the Plaintiff. At the termination of the relationship Corporate Coach owned the Union Street property (said to be worth $370,000 and subject to a mortgage of $322,000), the King Street property (said to be worth about $180,000, but also being part security for the mortgage of $520,000 which was also secured over the Birdwood Avenue property).

53 Evidence was placed before the Court that the present value of Corporate Coach was nil. The Defendant did not dispute that valuation.

54 Whilst that valuation may be treated as being literally accurate, the Court in considering the assets of the Plaintiff at the relevant times in the relationship should not disregard the fact that the Plaintiff treated Corporate Coach as her alter ego. The fact that at various times the Plaintiff was a creditor of the company, whilst at other times the company was a creditor of the Plaintiff, can have no practical impact upon the realities of the Plaintiff’s assets and her liabilities.

55 At the time of the termination of the relationship, the assets and liabilities of the Defendant were as follows.

Interest as tenant in common in equal shares with the Plaintiff in the Gowrie Street property (said to be worth about $345,000 and subject to a mortgage of $155,000)

House property situate at and known as 56 Susan Street, Newtown

Property situate at and known as 123 Michael Street, Jesmond

56 It is in the light of the foregoing facts and circumstances that the Court must proceed to a consideration of the claim of the Plaintiff and the cross-claim of the Defendant.

57 I have had the benefit of receiving written outlines of submissions and chronologies from Counsel for the respective parties. Those documents will be retained in the Court file.

58 I have already recorded that it was not in dispute that the parties lived in a de facto relationship during three separate periods. There was no significant dispute concerning the lengths of the first and second periods (from June 1997 until late October 1997, and from April 1998 to 1 April 1999 respectively). I have already recorded that I am satisfied that the third period, which commenced in January 2000, came to an end on 12 May 2001. Those three periods total about two years and eight months.

59 Section 17(1) of the Property (Relationships) Act provides, subject to subsection (2) of that section, that,

… a court shall not make an order under this Part unless it is satisfied that the parties to the application have lived together in a domestic relationship for a period of not less than 2 years.

60 Subsection (2) provides,

A court may make an order under this Part where it is satisfied:
(a) that there is a child of the parties to the application, or
(b) that the applicant:
(i) has made substantial contributions of the kind referred to in section 20(1)(a) or (b) for which the applicant would otherwise not be adequately compensated if the order were not made, or
(ii) has the care and control of a child of the respondent,
and that the failure to make the order would result in serious injustice to the applicant.

61 In the instant case, since there is a child of the parties, Luke, the provisions of subsection (2) are activated, with the consequence that, irrespective of the period during which the parties have lived together in a domestic relationship, the Court is not here precluded from making an order under Part 3 of the Act.

62 Had there not been a child of the parties I would have had very considerable doubt as to the power of the Court to grant the relief sought by each of the parties in the present proceedings. Subsection (1) speaks of the parties having “lived together in a domestic relationship for a period of not less than two years”. It does not speak of the parties having lived together in a series of domestic relationships, the totality of the periods whereof being not less than two years.

63 In the instant case the periods of separation intervening between what have been referred to as the first period and the second period of the relationship and between the second period and the third period of the relationship were respectively somewhat more than five months and somewhat more than nine months. Those periods of separation were neither brief nor insignificant. Those two periods of separation were of such duration (constituting almost half of the totality of the periods during which the parties were living together and constituting almost one third of the period from the time when the parties first commenced to live together in June 1997 until the final termination of their relationship on 12 May 2001) that I have very considerable doubt as to whether the parties “have lived together for a period of not less than 2 years”. It seems to me that it is strongly arguable that the parties in the instant case lived together in three separate domestic relationships none of which was for a period of not less than two years.

64 However, as I have already observed, the fact that there is a child of the parties makes it unnecessary for me to express a concluded view as to whether the parties “lived together in a domestic relationship for a period of not less than 2 years”. The effect of subsection (2) of section 17 is that the Court is not here precluded from granting relief for the adjustment of the interests of the parties in property, pursuant to section 20 of the Act.

65 Section 20(1) of the Property (Relationships) Act provides, relevantly,

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

66 The phrase “domestic relationship” is, by section 5(1) of the Act, defined to include a de facto relationship.

67 A great deal of the evidence was directed to the respective contributions of the parties to the development, restoration, and refurbishment of the various pieces of real estate owned by the parties, especially the Plaintiff, throughout the course of the relationship.

68 It is unnecessary for me to deal with each individual assertion and counter-assertion of the parties in respect to those contributions. In approaching a claim for the adjustment of interests of parties in property pursuant to section 20(1) of the Property (Relationships) Act, the Court should make a wholistic judgment, and should not attempt to evaluate the respective contributions of the parties as if it were undertaking a reductionist process analogous to the taking of partnership accounts (notoriously one of the most time consuming and expensive of litigious exercises). (See Davey v Lee (1990) 13 FamLR 688.)

69 In the instant case, suffice it to say that I am satisfied that the contributions of the Plaintiff were far less than asserted by her in her statement of claim and in her various affidavits, and that the contributions of the Defendant were greater than was conceded by the Plaintiff, even if they were not as great as the Defendant himself asserted.

70 Similarly, a great deal of evidence was directed to the respective contributions of the parties as homemaker and parent (especially as parent to the Plaintiff’s son Kailin and to Luke, the child of the parties). Again, it is unnecessary for me to deal with each individual assertion by each party in regard to those contributions. I am satisfied that the contributions of the Plaintiff in this regard were greater than those of the Defendant. Nevertheless, I do not accept the assertions of the Plaintiff that the Defendant made little or no contributions in the capacity of homemaker or parent. I am satisfied that the Defendant, although his contributions in such capacities were less than those of the Plaintiff, did make significant contributions as homemaker and parent.

71 Evidence was presented concerning the financial and material circumstances of the parties (in particular of the Plaintiff) since the date of the termination of the de facto relationship (whether that termination took place in May 2001 or some five and half months later).

72 It should be recognised that the purpose of the Property (Relationships) Act is remedial (see New South Wales Law Reform Commission Report on De Facto Relationships, quoted by Gleeson CJ and McLelland CJ in Eq in Evans v Marmont (1997) 42 NSWLR 70 at 80-81; Jones v Grech [2001] NSWCA 208 per Ipp AJA at 76. The discretion vested in the Court by section 20(1) of the Act is to be exercised “having regard to” the contributions of the nature described in paragraphs (a) and (b) of that subsection.

73 In Roy v Sturgeon (1986) 11 NSWLR 454 Powell J (as he then was) said, at 464,

The fact that it is not the policy of the Act to elevate the status of a “de facto partner” to that of a party to a marriage, would, in my view, be enough to caution one against too readily embracing the decisions of the Family Court of Australia as to the matters to which that Court might legitimately have regard when dealing with applications under section 79 of the Family Law Act 1975 (Commonwealth). That caution is, however, reinforced by the fact that there are differences between the language of section 20 of the Act on the one hand, and of section 75(2) and section 79(4) of the Family Law Act 1975 (Commonwealth) on the other, which differences are, in my view, significant.

74 Powell JA in Jones v Grech, at 12, quoted the foregoing passage from his judgment in Roy v Sturgeon and emphasised that the statutory regime under the Property (Relationships) Act is different from that under the Family Law Act 1975 (Commonwealth). (See, also, Black v Black (1991) 15 FamLR 109 at 113 per Clarke JA; Wallace v Stanford (1995) 37 NSWLR 1 at 33 per Sheller JA; Evans v Marmont, supra, per Gleeson CJ and McLelland CJ in Eq.)

75 In Green v Robertson (1995) 36 NSWLR 96 Cole JA at 115-116, was of the view that the Court should have regard to contributions made to the date of the application (in distinction to contributions made merely to the date of the termination of the relationship). That was a proposition which Campbell J in Nguyen v Schieff (2002) 29 FamLR 177 found persuasive, the reasons for so finding his Honour repeated in Sullman v Sullman [2002] NSWSC 169. Nevertheless, there is no authority in either of those decisions for the Court to have regard to the present circumstances (especially the present needs of the parties), let alone to likely future needs of the parties.

76 In exercising the discretion vested in the Court by section 20(1) of the Property (Relationships) Act, it seems to me that, consonantly with the foregoing decisions of the Court of Appeal, the present financial and material circumstances of the Plaintiff and, in particular, her present needs should not be taken into consideration. The Court should not be diverted from the clear words of the statute in exercising its discretion to “make such order adjusting the interests of the parties in the property as to it seems just and equitable”. The Court must have regard to the contributions of the nature then set forth in paragraphs (a) and (b) of the subsection. As I understand the foregoing decisions of the Court of Appeal, it is not legitimate for the Court to have regard to present or future needs of the parties; it should have regard only to contributions of the nature set forth in the subsection. (See Mathieson v Wallis [2001] NSWSC 931, McLaughlin M, 22 October 2001, an appeal from which was dismissed by the Court of Appeal on 11 October 2002, sub nomine, Wallis v Mathieson [2002] NSWCA 350.)

77 It is clearly necessary in this regard to exercise the caution counselled by Powell J in Roy v Sturgeon. The principles disclosed in the relevant provisions of the two statutes are that the Property (Relationships) Act looks to past contributions, whereas the Family Law Act looks also to present and future needs.

78 I propose, therefore, in considering the claim of the Plaintiff for adjustment of interests in property under section 20(1) of the Property (Relationships) Act to disregard evidence concerning her present and likely future needs.

79 The relief which the Plaintiff has ultimately sought is as follows:

1 and 2. Transfer to the Plaintiff of the Defendant’s interest in the Gowrie Street property, with the Plaintiff being responsible for refinancing the mortgage presently secured on that property.
3. Payment to the Plaintiff of the balance of the proceeds of sale of the Susan Street property, presently invested in the joint names of the parties, together with interest thereon.
4 and 5. Transfer to the Plaintiff of the Defendant’s interest in the holiday time-share, the Plaintiff to indemnify the Defendant in respect to the personal loan obtained by the parties in order to purchase that time-share.
6. Payment of $10,000 to the Plaintiff by the Defendant.
7. The Plaintiff to be solely responsible for and to indemnify the Defendant in respect to the Visa card.
8 and 9. Consequential orders and declarations.
10. Costs.

80 The Defendant consents to the relief sought in the foregoing items 4, 5 and 7. In addition, the Defendant by his cross-claim seeks his following relief:

1. Transfer to the Defendant of the Plaintiff’s interest in the Gowrie Street property, subject to the existing mortgage.
2. Alternatively to item 1, the sale of the Gowrie Street property, and the net proceeds of sale (after payment of agent’s commission, advertising expenses and legal costs) to be divided equally between the parties, the Defendant to be responsible for the payment of the outstanding mortgage.
5. Consequential orders and declarations.
6. Costs.

81 The substantial areas of dispute between the parties are the claims by each party to the entirety of the Gowrie Street property, and the claim by the Plaintiff to the entirety of the proceeds of sale of the Susan Street property and for the payment to her of the sum of $10,000.

82 I am not satisfied that the contributions of the Plaintiff to the acquisition, conservation and improvement of the Gowrie Street property were significantly greater than those of the Defendant – certainly not so much greater as to entitle the Plaintiff to receive the entirety, or any part, of the interest of the Defendant therein.

83 I consider that it is appropriate, as sought in the alternative relief claimed by the Defendant, that the Gowrie Street property be sold and that the net proceeds of sale (after payment of agent’s commission, and legal and other costs and expenses) be divided equally between the parties.

84 The only asserted contribution of the Plaintiff towards the Susan Street property was the provision by her of the guarantee to the amount of $73,000. That guarantee was never called upon (indeed, the Defendant asserted that it was not at his request that it had been provided), and there was no evidence that the Defendant could not have acquired the Susan Street property without that guarantee. In my conclusion the Plaintiff has not made out any entitlement to receive any part of the moneys representing the proceeds of sale of the Susan Street property and interest thereon.

85 The contributions of the Plaintiff as homemaker and parent were somewhat greater than those of the Defendant in the same capacities. That fact, together with the fact that throughout the first period of the relationship and the early months of the second period the parties were residing in the Erskineville property which belonged to the Plaintiff, would in my conclusion entitle the Plaintiff to receive from the Defendant the payment of a relatively small monetary sum. I consider that $10,000 would be adequate.

86 I have already recorded that the Defendant consents to orders in respect to the time-share and the Visa card.

87 Similarly, each party sought a declaration to the effect that he or she is solely entitled to all property in the possession of that party at the present time. (The declaration sought by the Plaintiff in this regard expressly includes her superannuation benefits and insurance policies, and any liability in respect to any of the subject items of property.) I consider that it is appropriate that such a declaration be made.

88 As to costs, I consider that, in the context of the nature and ambit of the relief claimed by her, the Plaintiff can hardly be regarded as having been successful in the proceedings, even though she will receive payment of $10,000 from the Defendant. In my view it is appropriate that there be no order as to costs, to the intent that each party will bear her or his own costs of the proceedings.

89 However, if either party desires some other order in respect to costs, an opportunity will be available for such an application to be made.

90 I propose to stand the matter over for the bringing in of short minutes to reflect my foregoing conclusions, and for any application in respect to costs.

91 I make the following order:

(1). I order that the proceedings be stood over to a date to be fixed by arrangement with my Associate, for the bringing in of short minutes and, if desired, for argument as to costs.

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