Sudsai v Barbetti - [2008] NSWDC 30

CITATION: Sudsai v Barbetti & Anor [2008] NSWDC 30

HEARING DATE(S): 22 October 2007, 23 October 2007, 24 October 2007, 25 October 2007, 26 October 2007, 10 December 2007 and 11 December 2007

JUDGMENT DATE:
18 March 2008

JURISDICTION: Civil

JUDGMENT OF: Hungerford ADCJ

DECISION: (1) Plaintiff entitled to adjustment in her favour of 26 per cent of the property interests of the parties valued as at the date of separation in May 2003; (2) First defendant to pay the plaintiff a lump sum of $199,202 within 28 days; (3) Failing the first defendant’s compliance with payment, the first and second defendants take all necessary steps to effect a sale of their property at Chapel Hill in Queensland and to apply the proceeds to satisfy the payment to the plaintiff in (2) hereof plus interest; (4) First defendant to transfer to the plaintiff within 14 days his interest in the ASG Scholarship Fund, Telstra shares and funds held in trust by Paul & Paul, Solicitors, in relation to Qantas shares; (5) Otherwise, the parties be declared the owners of all the assets presently held by them and be solely responsible for all liabilities held in each of their respective names; (6) No order as to the second defendant’s costs; (7) Plaintiff and first defendant to he heard on costs; and (8) Plaintiff to bring into Court short minutes of order.

CATCHWORDS: FAMILY LAW – De facto relationships – Adjustment of - parties’ property interests – Application under s 20 of Property (Relationships) Act 1984 – Relevant property – Superannuation entitlements - Contributions of financial and non-financial nature – Inheritances – Evaluation of contributions – Proper date to value assets – Valuation of overseas real property – Duration of de facto relationship – Nature of a de facto relationship – Time limit of 2 years within which claim to be brought – Leave available to extend limitation period – Significant post-separation expenditure by one party to the - relationship – Notional add-back of such expenditure into asset pool – Homemaking and parenting roles – Nature and type of orders which may be made – Just and equitable order – Holistic approach – Payment of a lump sum – Sale of real property to secure payment – Transfer of interest in personal property – Principles as to costs of proceedings.

LEGISLATION CITED: Civil Procedure Act 2005, ss 3 and 98(1)
District Court Act 1973, ss 51 and 134
Evidence Act 1995, ss 128 and 132
Family Law Act 1975 (Cth) ss 75(2) and 117
Legal Profession Act 2004, s 364
Marriage Act 1961 (Cth)
Property (Relationships Act 1984, ss 3(1), 4, 14(1), 15(1), 16, 17, 18, 19, 20, 38 and 42
Uniform Civil Procedure Rules 2005, Pt 42 r 42.1 and Pt 42 r 42.30

CASES CITED: Bilous v Mudaliar (2006) 35 Fam LR 55
Chanter v Catts (2005) 64 NSWLR 360
Coghlan (2005) 33 Fam LR 414
Davey v Lee (1990) 13 Fam LR 688
Dunstan v Rickwood (No 2) [2007] NSWCA 266
Evans v Marmont (1997) 42 NSWLR 70
Fagan (1980) 23 SASR 454
Graham v Wiegand [1999] NSWSC 1024
Horton v Russell [2006] NSWSC 506
Joy v Cox [2007] NSWSC 1224
Kardos v Sarbutt (2006) 34 Fam LR 550
Kardos v Sarbutt (No 2) [2006] NSWCA 206
Kowaliw [1981] FLC 91-092
Loibner v Owens [2006] NSWSC 410
Omacini (2005) 191 FLR 317; 33 Fam LR 134
Petersen v Gregory; Estate of Glen Alfred Petersen [2007] NSWSC 8
Spencer v Commonwealth of Australia (1907) 5 CLR 418
Townsend (1994) 18 Fam LR 505

PARTIES: Benjarat (Noi) Sudsai – Plaintiff
Michael Francis Barbetti – First Defendant
Napawan Klanprachar – Second Defendant

FILE NUMBER(S): 4268 of 2004

COUNSEL: Mr ADB Fox (Plaintiff)
Mr A Cooper, Solicitor/Advocate (First and Second Defendants)

SOLICITORS: Stuart Fowler & Partners (Plaintiff)
Barry & Nilsson, Brisbane (First and Second Defendants)

JUDGMENT

1 These proceedings arose out of a de facto relationship of some years’ standing and during which a child was born. Following the cessation of the relationship, an application was made to the Court by statement of claim filed on 11 October 2004, amended on 15 August 2006, pursuant to s 14(1) of the Property (Relationships) Act 1984 for an order under s 20 adjusting interests with respect to the property of the parties to the relationship.

2 The Court’s jurisdiction was invoked by reason of s 134 of the District CourtAct 1973 as to a property settlement. That section gives the Court the same jurisdiction as possessed by the Supreme Court of New South Wales under s 9 of the Property (Relationships) Act but limited to an award of $250,000 subject to an additional amount of 50 per cent to a maximum of $375,000, not presently relevant, if the conditions in s 51 of the District Court Act be met. The present claim was within those jurisdictional limits.

3 There was no issue that the prerequisites for the making of an order under the Property (Relationships) Act had been met, specifically s 15 as to the residence of the parties being within New South Wales on the day on which the application was made and s 17 as to the relationship having existed for a period of not less than two years. However, s 18(1) was relied upon to bar the application for relief because it was claimed to have been made more than two years after the date on which the relationship ceased; even so, it was accepted that the Court may otherwise grant leave under s 18(2) for an application to be made for an order if it was satisfied that greater hardship would be caused to the applicant if leave were not granted than would be caused to the respondent if that leave were granted. The application for relief here said the application was brought within the limitation period although, in the event it was not, leave to do so was accordingly sought.

4 It is plain that the Court here has a very wide discretion under s 20 of the Property (Relationships) Act in determining the division of the property to be made between the parties to the relationship, governed by, as the section says, “such order adjusting the interests of the parties in the property as to it seems just and equitable.” The Court in doing so is to have regard to the financial and non-financial contributions made directly or indirectly by or on behalf of the parties and the contributions as homemaker or parent for the welfare of the other party or of the family and of a child of the parties. Section 38 of the statute sets out the types of orders which may be made, including, as called in aid here, the payment of a lump sum, the transfer of property and the sale of property with distribution of the proceeds of sale in default of the monetary order not being satisfied within 28 days.

5 The orders sought were vigorously resisted and involved a hearing lasting seven days, plus detailed written submissions, with close attention to the nature, duration and extent of the parties’ relationship and of the true value of the pool of assets they shared. In the result, and apart from the s 18 limitation point, a dismissal of the claim was sought on the basis that a proper assessment of the relevant circumstances according to s 20 meant the parties should simply retain that which was currently in each of their names and that an adjustment was neither just nor equitable. I was informed that mediation of the dispute between the parties occurred on 6 August 2007 before an Assistant Registrar of the Court but it was unsuccessful.

6 A perhaps unusual feature of this case was the presence of a second defendant, joined to the proceedings on 4 August 2006 by consent order of the Court, not being a party to the de facto relationship concerned. She became on 16 October 2003 the owner as a joint tenant, and later on 17 July 2006 as a tenant in common, of realty purchased in Brisbane after the parties’ relationship had terminated from funds provided solely from the sale of real property being the parties’ principal place of residence at Marrickville in Sydney during their relationship. It was alleged that the instrument effecting the grant to her of an interest in the Brisbane property was likely to defeat an anticipated order of the Court in these proceedings and, so, an order was sought under s 42 of the Property (Relationships) Act concerning transactions to defeat claims that the instrument of transfer be set aside. In the result, however, on 30 October 2006 the Court by consent noted the parties’ agreement reached on 27 October 2006 that the Brisbane property, including as to the second defendant’s interest, was to be treated as part of the relevant pool of assets for any adjustment under ss 20 and 38. The second defendant thereupon took no active role in the proceedings and effectively submitted to any order which might be made, except as to costs, by undertaking to the Court that she would consent to, and comply with, the making of any such orders following a final hearing to do justice and equity to the extent they involved her interests.

7 A cross-claim seeking payment of $70,000 and for an order that each party retain the property currently in their name or possession was made. However, by consent, on the first day of the hearing on 22 October 2007 this cross-claim was dismissed with costs reserved.

The parties and their relationship
8 The plaintiff, Benjarat (Noi) Sudsai, was born on 15 October 1959 and resided with her parents and siblings in the family home in the village of Ban Ko Noi located in the northern area of Thailand. The first defendant, Michael Francis Barbetti, was born on 4 October 1945. By career, he was a research scientist in the fields of physics, earth science, environmental studies and archaeology with particular expertise in analysing materials, principally trees and wood samples, and determining their age and composition; he conducted those research activities in Australia and in South-East Asia, mainly since 1980 in Thailand. His qualifications were impressive – BSc(Hons) from the University of Western Australia in 1967; MSc from the University of Manitoba in 1968; and a PhD from the Australian National University in 1974 – and during the 1970s the first defendant was employed by Oxford University and the University of Adelaide as an academic. He commenced employment with The University of Sydney in November 1979 as a professional officer in a research laboratory and progressed until his appointment from January 2000 as an Associate Professor and Director of a research centre at the University; in 2003 he was granted permission to work on a part-time basis at the University of Queensland on a special duties programme. In February 2005 the first defendant retired from Sydney University.

9 The plaintiff and the first defendant initially met in 1983 during his work on an archaeological research project in Thailand which was based in the plaintiffs village of Ban Ko Noi; she was employed as a cook for the project members. Apparently, the plaintiff and the first defendant became friendly and they spent time together during the period from 1983 to 1987 when he visited Thailand on a few occasions each year; the meetings increased in frequency as their relationship became closer, including travelling together to Bangkok on a few occasions, and as they together attended functions in the village such as movies, festivities and activities with friends and acquaintances.

10 By this time, the plaintiff said the first defendant asked her to marry him and so advised her parents. However, he wished to be engaged and to wait three years before marriage as he was then married to his second wife, Anne Elizabeth Hewett with whom he had a son, and a divorce had to be finalised. It seems that the first defendant then had three children, two from a first marriage to Annette Josephine Fitzpatrick from July 1967 to 1977 which ended in divorce, and one from the marriage to Ms Hewett with whom he commenced a relationship in January 1975. Even so, the first defendant admitted to beginning a sexual relationship with the plaintiff in January 1988, although in other evidence he said it was an “intermittent sexual relationship for a few weeks of each year after December 1990” and added that “the plaintiff and I never made mutual commitments to each other as husband and wife. Any commitment to the plaintiff made by me was only ever in respect of her being my mistress and not as my wife.” The plaintiff said the sexual relationship commenced in late-1989 during one of the first defendant’s visits to her village and continued at various hotels in Thailand. Ms Hewett and her son had accompanied the first defendant to Thailand while he worked on a project from December 1986 to January 1987; they resided in a home unit in Alt Street, Ashfield which had been purchased as an investment jointly by the first defendant and Ms Hewett in 1987.

11 The first defendant around this time became interested in investing in land in Thailand but, because foreigners could not own land in their own names, in 1987 he asked the plaintiff to help him with a purchase by being the landholder for him. He said he gave the plaintiff some cash for the purchase and began transferring from Australia to the plaintiff in Thailand money on a regular monthly basis – in January 1988 a parcel of land known as Lot 115 in the province of Sukhothai in the district of Sisatchanalai north of Bangkok was purchased in the plaintiff’s name for 160,000 Thai baht (about $A5,540); over a three-year period the first defendant paid the plaintiff some 3,000 baht (about $A103) per month; and, with money saved from her employment as a cook, the plaintiff purchased and had planted 2,700 teak trees on the land at a cost of 14,330 baht (about $A477). Thus, the approximate outlay on Lot 115 with the trees was 174,330 baht (about $A6,017).

12 In around 1989, the plaintiff said she became very ill with a stomach illness and the first defendant admitted to supporting her financially and he paid medical expenses.

13 Although not fully recovered from the illness, the first defendant in late-1990 asked the plaintiff to accompany him on a trip to Laos; she hesitated because, as she said, “we are not married”. The plaintiff maintained, but denied by the first defendant, that he said “we should now get married” and she agreed to do so. About a week later, on 24 November 1990, a significant event occurred in the plaintiff’s village when she and the first defendant went through the form of a customary Thai marriage ceremony – of course, and this was common ground, as the first defendant was still then married to Ms Hewett the ceremony did not constitute a marriage within the meaning of the Marriage Act 1961 (Cth). In Thai custom, the plaintiff said she was to become the first defendant’s “second wife” which was not the same as being a mistress but meant they could live together and travel alone. The first defendant’s evidence was that the ceremony made the plaintiff his “minor wife” or “mistress” and he made a customary gift of money to her; as a result, he said they could be together without a chaperone.

14 The ceremony was arranged by the plaintiff’s sister. It was described by the plaintiff, including as to the consequences, in this way:

In 1990 the Defendant and I were married in my village in a traditional Northern Thai ceremony conducted by the village elders. The ceremony lasted a full day and was witnessed by my parents and many local people. Our marriage was not registered at the District Office at the time because the Defendant was not divorced from his second wife. I remember the Defendant paid my parents a dowry of 40,000 baht (about $A1,380)… Following the marriage ceremony my parents, family and village members regarded us as husband and wife. During this marriage ceremony, in keeping with Northern Thai custom, each of our wedding guests tied a white wedding band on each of our wrists and whilst doing so wished each of us longevity and happiness in marriage. We wore the wedding bands for one week and slept and bathed whilst they were still tied on. Following the marriage ceremony, the Defendant and I lived as husband and wife in my parents’ home. After our marriage, the Defendant treated my parents’ home as his own and used all of its facilities freely. I did the cooking for the Defendant and prepared his meals unless we were out and otherwise I did his washing and ironing. We shared a bedroom. Within a couple of days after the wedding the Defendant and I travelled to Laos for a combination of a honeymoon and because of the Defendant’s work. After our marriage the Defendant gave me between 40,000.00-60,000.00 baht (about $A1,380-$A2,070) per annum to support myself. Until about 1994 I continued to live in my parents’ home where the Defendant and I cohabited each time he visited the village which by then was one or two times a year for periods of one to three months. In my parents’ home we occupied one of the rooms and shared the same bed. Whenever the Defendant returned to Sydney he left most of his clothing and equipment in the bedroom for safe keeping. Whilst he was in our village the Defendant had most of his meals in my parents’ home and otherwise we lived our life as husband and wife. In accordance with the Thai culture I accompanied the Defendant wherever he went including his place of work.

15 For the first defendant, he explained the ceremony as follows:

I deny that we have ever married or that we had a marriage ceremony. I deny that there were village elders or officials of any kind in attendance during any ceremony. I say that there was a brief ceremony of less than an hour one morning, with few people present apart from the Plaintiff’s family and a local monk. This was a simple ceremony to mark the occasion of the Plaintiff becoming what is termed in Thai a “minor wife” and in the English language a “mistress” who would not have any of the rights of a “royal” or proper wife. The dowry was a gift nominated by the Plaintiff’s parents. The amount was, in my understanding, an acknowledgment of the standing of the girl, who in this case was 31 years of age and already well past the usual age for marriage, which was the early 20s. Her father said to me that evening words to the effect: “I am glad that Noi will settle down at last with one man”, and “Now you can look after her and I don’t have to worry about her life”.

16 In mid-1993, the plaintiff became pregnant. A son, Kritsada, was born to the parties in Thailand on 20 April 1994.

17 Two former work colleagues of the first defendant and friends of the plaintiff, Donald Lloyd Hein and Peter Grave, gave evidence about the relationship of the parties. Dr Hein was an archaeologist, who from 1975 undertook research in and near the village of Ban Ko Noi, and in 1982 invited the first defendant to join the project. With his wife he resided in the village continuously from 1984 to 1994 and arranged the plaintiff’s employment on the project as the head cook. He deposed that from around 1985 the first defendant took an interest in the plaintiff by spending time with her and on occasions escorted her back to her home; he observed that the interest developed into a romantic attachment. In 1987, he said the first defendant admitted to him difficulties in the first defendant’s relationship with his wife, Ms Hewett, and that there was an understanding with the plaintiff’s parents of a period of three years to tidy up his personal affairs before he could marry the plaintiff. After the “marriage” ceremony in 1990, Dr Hein said he noticed both the plaintiff and the first defendant had white strings tied around their wrists and understood the Thai custom with so many strings meant that a marriage had taken place. Thereafter, as he said, “Michael and Noi were accepted by me and other members of the research team as a de facto couple” and at the excavation site the plaintiff and the first defendant shared the same accommodation as they did at the plaintiff’s family home.

18 Dr Grave met the first defendant initially during 1986 at Sydney University when he was a technical officer doing research as a student. It was in 1988 he first met the plaintiff at her Thai village and when she operated a restaurant at the archaeological site. After the ceremony in 1990, Dr Grave saw both the plaintiff and the first defendant wearing white strings around their wrists as to which he said the first defendant told him “It signifies a marriage. Noi and I have been married in Ban Ko Noi following Thai custom.” During the period 1992-1994, Dr Grave stayed at the home of the plaintiff’s sister and then observed that the plaintiff and the first defendant “were a couple as they resided together and openly showed affection to each other such as hugging each other.”

19 Significantly, and despite the first defendant’s position that his relationship with the plaintiff was an “intermittent sexual relationship for a few weeks each year” without “mutual commitments to each other as husband and wife” and where the plaintiff was “only ever … my mistress and not as my wife”, the plaintiff in oral evidence was firm – she was married to the first defendant at the November 1990 ceremony, she was to have no relationship with any other man, she was “obliged to him” and she was in a “committed relationship.”

20 On becoming pregnant, the plaintiff said the first defendant asked her if she would like to visit Sydney to see if she would wish to live there; because of her feelings for the first defendant, the plaintiff agreed to do so but if it be found too difficult she preferred to live in Thailand with their child. As it happened, her sister was then an Australian citizen living at Croydon in Sydney and who sponsored the plaintiff for the visit. The first defendant was adamant it was just a “visit” and not a trial residence, although he admitted to obtaining the necessary visitor’s visa and paid for the return airline ticket. The plaintiff travelled to Sydney and stayed with her sister from 4 September 1993 to 4 March 1994; she returned to Thailand in the company of the first defendant for the birth of Kritsada on 20 April 1994. During the six-month period in Sydney, the plaintiff said the first defendant visited her every morning as he was then still living with his wife, Ms Hewett, at Ashfield. For about one day a week the plaintiff distributed pamphlets in letterboxes and from this work was able to save approximately $500 which she used for living expenses; the first defendant said he paid board and living expenses for the plaintiff, denied visiting her daily but admitted frequent telephone contact and accompanying her to a doctor regarding the pregnancy.

21 Although reluctant to return to Sydney with her son, the plaintiff acceded to the first defendant’s wish that they live in Sydney. On obtaining the necessary migration approval for a permanent resident visa, the plaintiff returned to Sydney with Kritsada on 5 December 1994 to live with the first defendant at her sister’s home in Auburn; in June 1994, the first defendant obtained Australian citizenship for Kritsada. It occurred in the meantime that the first defendant and Ms Hewett separated in April 1994 thus enabling, following a property settlement with Ms Hewett granting sole ownership of the Alt Street, Ashfield home unit to the first defendant, the parties and Kritsada to move into the property in March 1995.

22 Significantly for present purposes, the first defendant said he helped the plaintiff obtain the permanent resident visa for Australia on the basis of their relationship and the fact they had a son. It is informative that in the form completed by the first defendant for “Sponsorship for Migration to Australia” for the plaintiff dated 14 November 1994 in response to question 16 he indicated in the affirmative that he was sponsoring a de facto spouse and the date such relationship commenced was “12/87”, that is, December 1987; to question 18 he responded with an intention to maintain a lasting marital relationship; and to question 19 he denied the relationship was contrived solely to enable the plaintiff to enter Australia. In the plaintiff’s “Application for Migration to Australia”, completed also on 14 November 1994 by the first defendant due to the plaintiff’s lack of English, he answered for her –

as to question 17 that they were engaged with intended marriage in 1995 when his divorce was

finalised;

. as to question 17 that they were in a de facto/common law relationship begun in December 1987;

. as to question 33 that the plaintiff’s usual occupation was “housewife/farmer/landowner”;

. as to question 34 that in the plaintiff’s usual occupation she was “looking after parents and son in

household”;

. as to question 46 that the first defendant’s marital status was “separated” and “de facto/common

law”;

. as to question 48 that the first defendant was living with the plaintiff in a de facto/common law

relationship but was still legally married to another person;

. as to question 49 that the first defendant lived at the same address as the plaintiff; and

. as to question 63 that Kritsada was the child of the plaintiff and the first defendant and “lives with

us”.

23 In a statement dated 22 August 2003 given to the NSW Police Service by the first defendant, in respect of a complaint against the plaintiff for assault occasioning actual bodily harm the day before, he said:

I was in a de facto relationship with Benjarat SUDSAI since January 1988. As a result of the relationship we have a nine and a half year old son, Kritsada BARBETTI. My relationship with Benjara finished in May 2003. She still resides in my house.

24 In the meantime during the period from November 1990 after the commitment ceremony to December 1994 when the parties moved to Sydney, the evidence showed the parties cohabited on a regular basis as the first defendant visited Thailand for his work. On the first defendant’s own estimate this amounted to an average of just over three days a month. In addition, of course, there was the six-month period from September 1993 to March 1994 in Sydney when the first defendant conceded he regularly visited the plaintiff at her sister’s Auburn home for two or three times a week, even though he was then still living with Ms Hewett, the plaintiff undertook domestic duties for the first defendant and Kritsada was conceived. Although he could not remember when he informed Ms Hewett about his relationship with the plaintiff, the first defendant said he and Ms Hewett separated in March 1994.

25 The plaintiff’s case was that she formed a de facto relationship with the firstdefendant from November 1990 at the latest when the commitment ceremony took place whereas the first defendant admitted a de facto relationship but which commenced in December 1994 from when he resided with the plaintiff at the Auburn home of her sister until they moved in March 1995 into the Ashfield home unit.

26 It is plain, it seems to me, that the first defendant’s evidence in these proceedings as to the date the de facto relationship commenced is wholly contrary to what he said in the migration documents and in his statement to the NSW Police. During the hearing, the first defendant was afforded the opportunity under ss 128 and 132 of the Evidence Act 1995 to decline to answer questions where the answers may tend to show he had committed an offence; he did not object to do so and declined an indemnity certificate. Nevertheless, the first defendant maintained in cross-examination that all of his earlier statements in this respect were correct – on the one hand, that the de facto relationship commenced in December 1987 according to the explanatory notes for the definition of “de facto relationship” in the migration documents (which notes were not provided); on the other hand, that it commenced in December 1994 within the meaning of the term in the Property (Relationships) Act; and, further, in relation to the statement to the NSW Police, that it commenced in January 1988 when sexual activity between him and the plaintiff began. I have to say I found the distinctions made by the first defendant to be distinctions without a meaningful difference and represented an attempt by him to fashion his evidence of the facts to best suit his case. He appeared to be at pains to minimise the significance of the commitment ceremony in November 1990, contrary to the evidence of the plaintiff and that of Dr Hein and Dr Grave, and of the close and committed relationship of the parties thereafter until December 1994. The following cross-examination of the first defendant illustrates the niceties of the distinction he was making:

Q. Doctor Barbetti the simple fact of the matter is this, by the application which you made on 14 November 1994 you were informing the Australian Government that the plaintiff was your de facto spouse and that the relationship between you as de facto couple was commenced in December 1987?
A. That is correct.

Q. You were informing the Australian Government that your de facto relationship commenced in December 1987, correct?
A. Correct.
Q. You were informing the Australian Government that your de facto relationship within the meaning of the Property (Relationships) Act commenced in December 1987, didn’t you?
A. No.

Q. It’s at least since November 1990 isn’t it?
A. No. What I say is that I have been in a de facto relationship within the meaning of the Property (Relationships) Act since December 1994.

Q. Dr Barbetti do you agree with the answer that is provided at that part of the form, that is, the answer where it says de facto/common law, date relationship began in December 1987?
A. I would agree with that.

Q. So you agree that your de facto relationship with the plaintiff commenced in December 1987, correct?
A. In terms of the explanatory notes, wherever they may be.

Q. You are suggesting to this court, that you agree with a definition provided in a document known as explanatory notes, which doesn’t appear as part of your discovery documents, is that correct?
A. That is correct.

Q. When do you say that the explanatory notes no longer form part of the records that you maintained for the purpose of a property settlement with the plaintiff?
A. I do not know. I cannot recall at any stage where they were.

Q. But presumably in answering the question that you’ve just given – in giving the answer to the question …
A. Mm hm …

Q. …that you’ve just given there was a time where those explanatory notes were in your possession, weren’t they?
A. At the time the application was completed, yes.
Q. And you say you read those explanatory notes, didn’t you?
A. I would presume so.

Q. Sir you are saying to this court that you cannot agree that you were in a de facto relationship with the plaintiff from December 1987 because you rely on the definition of de facto relationship in a document you say is crucial but you have not provided any explanation to this court as to its whereabouts, correct?
A. I have not noticed before that that was in this form, I did not read all of these copies of the documents when they were prepared. I did not notice that was missing. What I did was for this item I had a folder and I would have taken out the documents that were in there and put them in the discovery folder.

Q. The simple fact of the matter is this that you considered that from December 1987 to December 1994 you and the plaintiff were in a de facto relationship, weren’t you?
A. Within the definition that was attached to this form, yes.
Q. Within the definition of the explanatory notes which are missing?
A. Correct.

Q. No, Dr Barbetti, you’re very particular with your words and I just want you to understand that these are the particular words I would like to know that you cannot agree to, that you and the plaintiff were in a de facto relationship between December 1987 and December 1994?
A. Within the meaning of the Property (Relationships) Act, no.

Q. I will ask the question one more time, because it is a question that requires a very simple answer, a yes or a no. I want to ascertain whether these words that I use are ones that you cant agree to or perhaps you can agree to and I’ll say the words again, I believe that I was in a de facto relationship with the plaintiff from December 1987 to December 1994.
A. Do you want me to repeat that?

Q. I just want to know whether you believe that or not, you take that view? Whether you agree to those words, whether you could say that to this court?
A. Then you must define de facto.
…

Q. So you indicated to the police that your de facto relationship with the plaintiff commenced in January 1988, did you not?
A. On the definition of sexual activity.

Q. You also informed the police that your relationship ended in May 2003?
A. Again on the same basis.
…
Q. Dr Barbetti, it is simply a complete nonsense to suggest to this court that that sentence in paragraph 3 of the statement that you gave to the police, that you were in a de facto relationship with the plaintiff from January 1988 and that it finished in May 2003, is limited only to the sexual relationship between you and the plaintiff on the date it commenced and the date it concluded. It’s a nonsense to suggest that, isn’t it?
A. No, it is not.

27 The plaintiff expressed a desire to obtain work but she said the first defendant stay home and look after Kritsada and the home; he encouraged her to learn English and so she commenced a language course which was completed in 2000. From time-to-time the parties with Kritsada travelled to Thailand.

28 Overall, the plaintiff attended to the domestic duties and provided the primary care for Kritsada; the first defendant remained in full-time employment with Sydney University but shared some household tasks outside of his employment. In September 1996 the first defendant sold the home unit at Ashfield for $134,500 and purchased a house in Richards Avenue, Marrickville in his sole name for $290,000; the parties thereupon moved to this Marrickville property.

29 In about 2000, the plaintiff obtained casual cleaning work for one or two days a week for which she received an average of about $100 per week; she sent a quarter of the earnings to her mother in Thailand with the balance spent on herself, Kritsada and the household. The casual work finished at the end of 2003 and the plaintiff was unable to find replacement work. They continued residence in the Marrickville property.

30 In early-May 2003, the plaintiff said she became aware that the first defendant had commenced a relationship with the second defendant, Napawan Klanprachar. The first defendant considered his relationship with the plaintiff had deteriorated markedly in 2000 and 2001. He said it ended in June 2002 when he told her – “I am very unwell today and I don’t know if this severe depression will ever get better. The future does not look good, and I don’t know what’s going to happen or even if I can continue to work.” This evidence was plainly at odds with his August 2003 statement to the police, which fixed the termination date, consistent with what the plaintiff said, as May 2003. It transpired that the first defendant commenced a relationship with the second defendant in December 2002 and, as he said, “thereafter only returned intermittently to reside in separate rooms (with the plaintiff) at my house at 10 Richards Avenue in Marrickville until it was sold in August 2003.” The second defendant owned a medium-sized restaurant at Salaya, near Mahidol University about 30 km west of Bangkok and on moving to Australia to live in November 2002 she and the first defendant established a partnership in a family day-care business operated from a property jointly owned by them at Spring Hill in Brisbane purchased for $175,000 in December 2002. After selling the Marrickville house in August 2003 for $750,000 the first and second defendants bought a property at Chapel Hill in Brisbane for $562,000 using the sale proceeds from the Marrickville house; they then commenced residence there and conducted from the premises the day-care business. The first and second defendants were married in July 2003.

31 The plaintiffs case was that the de facto relationship with the first defendant ceased in May 2003 when, at a family dinner with her sister and two children, a friend and her child and Kritsada, the first defendant announced:

I am separating from Noi. I have met a new woman. I intend to marry her as soon as possible. She and I will go into business together.

32 Eventually, on the sale of the Marrickville house and at the first defendant’s insistence before settlement of the sale, the plaintiff and Kritsada moved out of the house on 26 September 2003. With the help of friends in the Thai community, the plaintiff and her son moved into their present rented accommodation of a two- bedroom home unit. Her income is mainly from pensions and allowances in the total amount of about $478 per week supplemented by income from casual cleaning work of an average of $50 per week; in addition, she does volunteer work one day a week at a child-care centre. The first defendant pays the plaintiff $100 per week as child support for Kritsada, who, pursuant to a consent order of Rose J in the Family Court of Australia made under the Family Law Act 1975 (Cth), is to reside with the plaintiff and to have telephone contact with the first defendant.

33 The first defendant retired from his academic employment in February 2005 and is in receipt of a superannuation pension of $2,165 per fortnight. Of course, there is the income from the child-care business conducted with the second defendant in an undisclosed amount.

34 Relevantly, on separation from the first defendant, the plaintiff did not receive any proceeds from the sale of the Marrickville property as the home of the former de facto relationship. She said that on the say that she and Kritsada moved out of the Marrickville property she took only bed linen, clothing, personal items, a small number of plates, cutlery, pots and pans, ironing board with iron and a television set. The plaintiff said the first defendant removed from the home prior to his departure a large amount of bedroom, lounge and dining furniture, refrigerator, washing machine, kitchenware, crockery, cutlery, utensils, rugs, paintings, electric fan and telephone handsets, together with family photo albums, photographs, pieces of silk cloth and dried flower arrangements personal to the plaintiff. The plaintiff said she then had about $4,000 in cash from her part-time cleaning work and $7,000 saved from the family allowance which had been put aside for Kritsada’s education – apart from a few hundred dollars, those monies have been expended on the rental bond, furniture and legal fees concerning the family law dispute about Kritsada’s custody. The first defendant disputed much of the plaintiff’s version of the items concerned.

35 Finally as to the relationship between the parties, it ought be noted that in late August 2003 the plaintiff obtained an apprehended violence order against the first defendant and shortly thereafter he obtained such an order against her. It seems that those orders operated by consent for 12 months but have now lapsed.

Issues for determination

36 As the matter was argued by the parties, the following issues arise for

determination –

(a) The period of the parties' de facto relationship.

(b) The extent of the parties’ respective initial contributions made at the commencement of

the relationship and how they should be treated in the ultimate property division between the parties.

37 Depending upon the conclusions to the above issues will fashion the Court’s ultimate decision under s 20(1) of the Property (Relationships) Act in adjusting the interests with respect to the property of the parties in a just and equitable manner.

Legal principles as to the proper approach

38 The scheme of the Property (Relationships) Act in presently relevant respects was not in contention between the parties. It may be shortly stated. A “de facto relationship” is defined as “a relationship between two adult persons: (a) who live together as a couple, and (b) who are not married to one another or related by family”: s 4(1). In determining the existence of such a relationship all the circumstances of the relationship are to be taken into account, including its duration, common residence, sexual activity, financial arrangements, property matters, mutual commitment to a shared life, care and support of children, performance of household duties and public recognition of the relationship: s 4(2). Those circumstances, and the weight to attach to any of them, are to be evaluated as may seem appropriate in the particular case: s 4(3). An order under the statute shall not be made unless at least one of the parties to the application was resident within New South Wales on the day the application was made: s 15(1). A court may make or refuse to make an order: s 16. An order shall not be made unless the relationship has existed for a period of at least two years: s 17(1). An order may be made where there is a child of the parties to the relationship: s 17(2). Where a relationship has ceased, an application for an order can only be made within the period of two years after cessation or with the leave of the court where greater hardship would be caused to the applicant if leave were not granted than would be caused to the respondent if leave were granted: s 18. A court, in proceedings for an order, shall, so far as practicable, make such order as will finally determine the financial relationship between the parties and avoid further proceedings between them: s 19.

39 The types of orders which may be made under the Property (Relationships) Act, as relied on in this case, are prescribed by s 38(1) for the payment of a lump sum (para (d)), the transfer of property (para (a)) and the sale of property with distribution of the proceeds of sale (para (b)). In so doing by thus adjusting interests with respect to their property as seems just and equitable, the Court is to have regard exclusively to the matters contained in s 20(1) of the statute, namely –

(a) the financial and non-financial contributions made directly or

indirectly by or on behalf of the parties to the acquisition, conservation or

improvement of the parties’ property or to their financial resources; and

(b) the contributions, including as a homemaker or parent, made by

either of the parties to the welfare of the other party or to the family and

to a child of the parties.

40 It is plain, in my view, that the types of orders which may be made adjusting the interests of the parties as to their property are very wide and the statute, even though prescribing the specific matters to which regard is to be had, grants the Court a very wide discretion in doing so as to what is just and equitable in the circumstances. Of course, the discretion is not unfettered and is, it seems to me, to be exercised judicially and in accordance with settled principle. Even so, as Young CJ in Eq observed in Loibner v Owens [2006] NSWSC 410 in para [43], the discretion allowed by s 20 is “a holistic value judgment” of the case: see to the same effect Davey v Lee (1990) 13 Fam LR 688 at 689 per McLelland J; Kardos v Sarbutt (2006) 34 Fam LR 550 at 561 in para [36] per Brereton J (with whom Basten JA and Hunt AJA agreed); and Bilous v Mudaliar (2006) 35 Fam LR 55 at 63 in para [41] per Ipp JA (with whom Giles and McColl JJA agreed).

41 It was common ground between the parties, which I accept, that the proper

approach to the exercise of the powers conferred by s 20 of the Property (Relationships) Act was as outlined

by Hodgson JA in Chanter v Catts (2005) 64 NSWLR 360 at 366 in para [22] as follows:

It is accepted that the exercise of jurisdiction under s 20 of the Act involved three steps:
(1) identification and valuation of the property of the parties;
(2) identification and valuation of the respective contributions of the parties, of the types referred to in s 20;
(3) determination of what if any order is just and equitable having
regard to these contributions.
See Lipman v Lipman (1989) 13 Fam LR 1 at 18; Jones v Grech (2001) 27 Fam LR 711 at 722 [29].

42 In Kardos v Sarbutt (34 Fam LR at 558-561 in paras [29]-[38]), Brereton J

reviewed, by reference to the cited authorities, the nature and extent of the s 20 jurisdiction and the settled principles in respect of the three-step process. Without repeating all that his Honour there said, it is instructive to state the principal matters of present relevance, as follows:

[29] The exercise of jurisdiction under s 20 involves three main steps. The first is the identification and valuation of the property of the parties which determines the “divisible pool of property” – that is, “the property of the parties to the relationship or either of them” referred to in s 20 which may be the subject of an adjustive property order under that section. The second is the evaluation and balancing of the respective contributions of the parties of the types referred to in s 20, and typically though not invariably results in an apportionment between the parties on a percentage basis of the overall contributions of the types referred to in s 20 of each of them, made to the date of the hearing. The third is the determination of what order is required sufficiently to recognise and compensate the applicant’s contributions, and typically results in an order which leaves the applicant with that percentage identified in the second step of the divisible property identified in the first step …
[30] As to the first step, the exercise of the identification and valuation of the property of the parties is undertaken typically, though not invariably, as at the date of the trial …, though sometimes as at the date of separation … The starting point is that ordinarily property is valued as at the date of trial (Williams v Williams (1984) 9 Fam LR 798; [1984] FLC 91-541; Hauff v Hauff (1986) 10 Fam LR 1076; [1986] FLC 91-747). The primary reason for this is that the jurisdiction under s 20 is to adjust interests with respect to “the property of the parties to the relationship or either of them” and speaks from the date at which the jurisdiction is exercised, so that what is in issue is the property of the parties and each of them at the date of trial. Establishing the divisible pool at any other date may lead to failure to have regard to relevant assets available for division, or to the bringing into account of property no longer available …
[31] Although usually the preferable approach is to value the property as at the date of trial, giving where appropriate separate and special consideration to contributions to value made between separation and trial, nonetheless the ultimate task of evaluating the respective contributions of the parties may sometimes be facilitated by adopting the date of separation for identifying and valuing the property, particularly when there have not been ongoing contributions by one party which have benefited the other since separation … although ordinarily the parties’ property is to be valued at the date of trial, in a particular case there may be reasons to justify another date, which might be the date of separation: Omacini v Omacini (2005) 191 FLR 317; 33 Fam LR 134; [2005] FLC 93-218; [2005] Fam CA 195.
[32] As to the second step, a number of principles have been established relating to the evaluation and balancing of the respective contributions of the parties of the types referred to in s 20.
[33] First, where there is a division of roles in the relationship between the homemaker and parent on the one hand and the breadwinner on the other, contributions of a de facto partner as a homemaker and parent are not to be regarded as inferior in any way to the financial contributions made by the other partner …
…
[35] Second, contributions made before the cohabitation commences are relevant contributions for the purposes of s 20 … as are contributions made after separation and before trial …
[36] Third, in proceedings under s 20, the court is not required to undertake a reductionist process analogous to the taking of partnership accounts by examining every alleged “contribution” of the kinds described in the section with a view to putting a monetary value on each in order to reach an accounting adjustment; rather, the court is required to make a holistic value judgment in the exercise of a discretionary power of a very general kind …
…
[38] As to the third step – the determination of what order is required in order sufficiently to recognise and compensate the applicant’s contributions – the court is concerned with what is just and equitable having regard to, and only to, the respective contributions of the parties of the type referred to in s 20, and there is no warrant for regard to other factors such as the respective means and needs of the parties, which are made relevant to equivalent applications under the Family Law Act by s 79(4)(e) of that Act, an equivalent of which is conspicuously absent from the Property (Relationships) Act, and the omission of which was deliberate, as appears from the Law Reform Commission’s report of June 1983: Report on De Facto Relationships, No 36 of 1983, to which the draft bill was an appendix, and from which the policy underlying the legislation appears …

43 As arising in this case, it ought be mentioned that as to the first step of the process – identification and valuation of the property of the parties – the first defendant’s superannuation entitlements are to be included: see Chanter v Catts (64 NSWLR at 366 in para [23] per Hodgson JA. And, as Bryson JA explained in that case (64 NSWLR at 383 in para [90]), the superannuation entitlements of a party are clearly a “financial resource” within the meaning of that term in s 3(1) of the Property (Relationships) Act and within the definition of “property” in s 3(1) so that it is not necessary for the other party to have made direct contributions to the superannuation scheme concerned; his Honour relevantly added (64 NSWLR at 389 in para [113]) that it “was correct to treat a partner who stays at home to look after children thus enabling the other partner to go to work and earn a superannuation entitlement as making a contribution to that superannuation entitlement”.

44 As to the second step – identification and valuation of the respective contributions of the parties – it is to be emphasised, as Bryson JA did in Chanter v Catts (64 NSWLR at 378 in para [69]), that the contributions in the capacity of homemaker “should not be disregarded or undervalued. The need to recognise contributions by a wife ‘not in a token way but in a substantial way’ … has been applied to de facto relationships …” This concept was repeated by Brereton J in Kardos v Sarbutt (34 Fam LR at 559 in para [33]) to the effect that “where there is a division of roles in the relationship between the homemaker and parent on the one hand and the breadwinner on the other, contributions of a de facto partner as a homemaker and parent are not to be regarded as inferior in any way to the financial contributions made by the other partner.”

45 I have referred earlier to an issue in these proceedings as being the parties’ post separation expenditure. Specifically, the evidence disclosed such expenditure by the first defendant of around $500,000. The question this raises is whether as a matter of principle such expenditure may be taken into account in step two of the process in assessing the asset pool for distribution according to step three of what may be a just and equitable order in the discretion of the court. Such expenditure in the authorities has been characterised as a “negative” contribution and, in taking it into account, one approach has been to “add-back” into the asset pool the amount of that expenditure. This concerns whether the ultimate method adopted by the court is to value property as at the date of separation or the date of trial, as I have earlier commented is available. In any event, the discretion is for the court as is plain from the views of Brereton J in Kardos v Sarbutt cited earlier by adopting what was said in Omacini.

46 The respective needs and means of the parties was debated during the

proceedings. The first defendant took the position, following what Brereton J said in Kardos v Sarbutt, as referred to earlier, that those aspects were irrelevant under the Property (Relationships) Act although they did have express relevance under s 75(2) of the Family Law Act. However, for the plaintiff, and although not challenging the relevance as stated for the first defendant, relied on Bryson JA in Chanter v Catts (64 NSWLR at 377 in para [66]) in following the majority of the Court of Appeal in Evans v Marmont (1997) 42 NSWLR 70 for the proposition that the needs and means of the parties have general relevance as subsidiary factors to the question of what is just and equitable having regard to the contributions of the parties – the transitional process from step two to step three of the process – but otherwise the needs and means have no relevance and a disproportion in their assets is not a reason why it is just and equitable to make an adjustment.

47 I will follow the above-stated principles in considering and determining the present matter.

Period of the parties’ de facto relationship

48 Although no issue existed that the parties were in a de facto relationship so as to sufficiently attract the application of the Property (Relationships) Act, when that relationship commenced and ceased is of importance in the process of identifying and valuing the property and contributions of the parties at the relevant time, including the length of time they subsisted so that an assessment of a just and equitable order could be made. Also, of course, when the relationship terminated is relevant to the s 18 time-limitation point within which the plaintiff’s application was to be brought.

49 On the one hand, the plaintiff said the de facto relationship commenced no later than November 1990 – the time of the Thai commitment ceremony – and terminated in May 2003 – when the first defendant announced his decision to separate from the plaintiff with the intention to marry the second defendant. On the other hand, the first defendant’s position was that the relationship did not commence until December 1994 – when the parties commenced residence together at the plaintiff’s sister’s Auburn home until they moved to the Ashfield home unit in March 1995 – and terminated in June 2002 – when the first defendant told the plaintiff he was unwell and that the future did not look good with the plaintiff’s response for him to return to his wife. Therefore, on the plaintiff’s case the duration of the relationship was 12.5 years and on the first defendant’s case it was 7.5 years.

50 The duration of a de facto relationship depends upon what is such a relationship. Section 4(1) of the Property (Relationships) Act defines a de facto relationship as one between two adult persons “who live together as a couple” and s 4(2) sets out relevant matters to take into account in determining whether it exists. A “common residence”, relied on here by the first defendant, is but one such matter and the sub-section makes it clear that “all the circumstances of the relationship are to be taken into account.”

51 The authorities disclose that the following propositions exist as to the

establishment of a de facto relationship –

Petersen v Gregory; Estate of Glen Alfred Petersen

Horton v Russell

Petersen

In re Fagan

Graham v Wiegand

52 Mr A Cooper, solicitor/advocate for the first defendant, submitted that although a relationship between the parties commenced in 1988 did not make it relevantly of a de facto nature and it was not until the parties cohabited in Australia from December 1994 that the plaintiff contributed as a homemaker; prior to that the parties merely provided each other with emotional support and cooked for each other but it was not until cohabitation commenced that in a real way any contribution by the plaintiff commenced. Prior to December 1994 the first defendant lived for the overwhelming amount of time with his then wife, Ms Hewett, and the plaintiff’s efforts were solely directed to her life in Thailand with her family.

53 Counsel for the plaintiff, Mr ADB Fox, supported her case on this aspect by a wider approach to the relevant events of the parties’ relationship from the time in December 1987/January 1988 when sexual relations commenced through the time they spent together when the first defendant visited Thailand, taking trips together and the financial support provided to the plaintiff for medical and living expenses and purchase of properties in Thailand. The significant event, as counsel emphasised, was the Thai ceremony of marriage, or commitment ceremony, in November 1990 when the plaintiff became the first defendant’s minor wife on the payment by him of a dowry – the ceremony was a public declaration of the parties’ commitment to each other; the evidence of Dr Hein and Dr Grave affirmed how the relationship was seen as the parties becoming a couple committed to each other. As the first defendant accepted in evidence, the ceremony was seen as a sign of a long-term commitment made by both parties. Thereafter, the plaintiff considered they were married, that she was “obliged” to him and was not to have a relationship with any other man. Even though still married to Ms Hewett, the first defendant accepted that the pregnancy of the plaintiff in mid-1993 when she visited Australia and they spent much time together was planned – Kritsada was then born in April 1994. Indeed, the first defendant admitted that from November 1990 the parties were in a loving and completely committed relationship which culminated in them establishing residence in Australia in December 1994.

54 On the authorities, my view is that a de facto relationship may be described as one where the parties concerned live life together as a couple. It is only in that way that the various indicia of such a relationship in s 4(2) of the Property (Relationships) Act may be given effect. I prefer the broader view stated by Mr Fox of the events concerned as establishing a de facto relationship. I have very much in mind the significance of the Thai marriage or commitment ceremony in November 1990, the public perception of that ceremony as to how the parties were then to live their lives, the expressed feelings of mutual obligation and commitment, regular sexual relations, financial relations between the parties and the nature and extent of their lives together since November 1990 after a few years of a closely developing relationship. It is to be noted that the first defendant in the migration documents of 14 November 1994 claimed the de facto relationship commenced in December 1987 and that was confirmed by him in his statement of 22 August 2003 to the NSW Police Service when he said it existed since January 1988 – although those early dates may have been the time sexual relations began, the fact that such statements were made show, at the least, how the first defendant regarded the plaintiff and of his intentions for the future. Certainly, following Gzell J in Joy v Cox [2007] NSWSC 1224 in para [44], what is contained in public documents is an important factor in determining the existence of a de facto relationship.

55 I find that the parties’ de facto relationship commenced not later than November 1990.

56 Until 2002 it seems the parties lived together in an unremarkable way as a couple with Kritsada, even though, as the first defendant said, their relationship deteriorated markedly in 2000-2001. In determining when the relationship ended, either June 2002 or May 2003, depends upon when the test of such a relationship in s 4 of the Property (Relationships) Act was no longer satisfied.

57 The first defendant said he told the plaintiff in June 2002 that he was “unwell” with severe depression but conceded in cross-examination that those words did not convey an intention to end the relationship. In the meantime, he had met the second defendant and, although continuing to live at the Marrickville property with the plaintiff and Kritsada, purchased the Spring Hill property in Brisbane in December 2002 with the second defendant as an investment property. In April 2003 a property in Brisbane was rented from which the second defendant conducted a child day-care facility; he then commuted to Brisbane from time-to-time to stay with her and said he returned only intermittently to reside with the plaintiff in the Marrickville house in separate rooms. However, he conceded that regular sexual relations with the plaintiff continued until May 2003 and thereafter on some occasions. The plaintiff travelled with Kritsada to Thailand on 6 July 2002 to be with her ill mother and, after her mother died later that month, returned to Sydney on 2 August 2002. The second defendant travelled to Sydney in early November 2002. With the plaintiff’s agreement, she stayed in the Marrickville house and occupied the spare bedroom by herself – the plaintiff then understood the first and second defendants’ relationship to be business in nature; she said she was assured of that by the first defendant professing his continued love for her and an offer to marry her two years before he was due to retire.

58 After a trip to Thailand in January 2003 by the first and second defendants the first defendant continued residence with the plaintiff in the Marrickville property. However, the first defendant then travelled with the second defendant to Tasmania, ostensibly on business, but on returning to Sydney told the plaintiff all business with the second defendant in future would be on the telephone. Then, in late May 2003 the first defendant announced at a Sunday night dinner with the plaintiff, her sister and their children that he was separating from the plaintiff. He moved into the spare bedroom of the Marrickville house but the plaintiff said she shared it with him for a few days until he moved from the house. The plaintiff continued to live in the Marrickville house with Kritsada until the first defendant sold it and she moved from it to rented accommodation with Kritsada on 26 September 2003. By then, the first defendant had purchased the Chapel Hill property in Brisbane with the second defendant and they commenced to live in it. The first and second defendants were married in July 2003.

59 In that complex of facts, the competing positions of the parties’ views as to when the de facto relationship ceased is to be seen. It must be said that the first defendant had a history of conducting relationships with different women at the same time. However, in the August 2003 statement to the NSW Police Service concerning the apprehended violence order applications around that time by each party against the other, the first defendant said his de facto relationship with the plaintiff finished in May 2003.

60 I accept that the parties were capable of being in a continued de facto relationship even though one partner, here the first defendant, was conducting a liaison with another person, here the second defendant. As regrettable as that situation may be, I do not think it necessarily changes the nature of the subsisting relationship – after all, many marriages survive affairs occurring during their existence and, so too, in de facto relationships. I conclude that it was not until late-May 2003 that the parties’ de facto relationship terminated. Until then, all the relevant conditions of its existence continued and it was the then statement by the first defendant that he was separating from the plaintiff which was the operative fact.

61 In the result, the de facto relationship in this case was of 12.5 years duration from November 1990 to May 2003. It follows that the plaintiff’s present application filed on 11 October 2004 was brought within the statutory limitation period of two years and it is unnecessary to consider under s 18(2) of the Property (Relationships) Act the grant of leave to extend time.

Parties’ contributions at commencement of the relationship

62 In the period of a few years before the de facto relationship commenced in

November 1990 the plaintiff’s income and asset position was modest. From about 1986 she received a wage of 3,000 baht ($A150) per month for her cooking work with the archaeological project and shared income with her parents and two siblings from the sale of various crops cultivated on her father’s land. She received also 3,000 baht per month from the first defendant from 1987. As stated earlier, she managed to save enough to purchase in 1987 for 160,000 baht Lot 115 in one of the Thai provinces from her brother-in-law and planted 2,700 teak trees on it at a cost of 14,330 baht - the total value of the property was then about $A6,500. The first defendant, not admitted by the plaintiff but which I accept, contended that he contributed 150,000 baht to the purchase of the land and trees. The tree plantation was solely later maintained by the plaintiff and her family. She had no liabilities.

63 The evidence of the first defendant revealed his net asset position as at November 1990 to be –

$

Two Honda Civic motor vehicles (half share)
2,500

Home unit at Old Street, Ashfield (half share)
35,000

Investment unit in Perth (half share)
50,000

Home unit at Alt Street, Ashfield (half share)
10,000

Superannuation interest (but less than)
34,554

Total (approximately): $ 132,054

64 Clearly, then, the assets brought to the relationship by the first defendant were about twenty times those brought by the plaintiff but where he had made a quite substantial contribution to the plaintiff’s asset of Lot 115 and of the teak plantation.

Parties’ financial and non-financial contributions during the relationship

65 Period from November 1990 to December 1994: The contributions made during this period by the plaintiff were essentially as a homemaker, in providing familial support to the first defendant and in accompanying him on various work trips. She resided principally in Thailand, apart from the six-months’ visit to Sydney in 1993, and worked as a rice farmer and in a shop earning a modest income. From April 1994 when Kritsada was born she was the primary carer of the child.

66 The first defendant from his university employment on a net annual salary of $35,000 provided financial support to the plaintiff. He made a minor non-financial contribution by cooking meals at the plaintiff’s family home and sometimes assisted in maintaining the teak trees when he visited Thailand by clearing undergrowth.

67 Period from December 1994 to May 2003: During this period the initial three months saw the parties and Kritsada residing at the plaintiff’s sister’s house at Auburn in Sydney and then from March 1995 to September 1996 at the Alt Street, Ashfield home unit. In September 1996 they moved to the Marrickville property when it was purchased by the first defendant in his name for $290,000 following the sale of the Ashfield unit with proceeds of $121,000, property settlement with Ms Hewett and first defendant’s savings of $94,000 and a Commonwealth Bank mortgage of $75,000.

68 On the financial side, the plaintiff from part-time cleaning work earned a very modest income of about $1,000 per annum. She inherited with her brother and sister after their father died in 1996 a block of land being Lot 143 in the Sukhothai Province of Thailand and the first defendant paid 120,000 baht (about $A6,000) to the plaintiff’s brother and sister to buy out their interest. Also, the plaintiff inherited wholly in her own name and right Lot 53 and Lot 57 in Sukhothai Province. In addition, the plaintiff’s father had use of a house, known as 89/5 Ban Ko Noi, in the village where they lived and it was common ground that the land and house should relevantly be treated as assets of the plaintiff. The parties in 1995 built a new house on 89/5 from a contribution of $A50,000 made by the first defendant and that property has since been fully maintained by the plaintiff’s family. Therefore, the plaintiff’s financial contributions during this period were Lots 53, 57, half of Lot 143 and the land on which the 89/5 house was built. The first defendant accepted that those financial contributions were made by the plaintiff and which had a value of around $A44,000.

69 On the non-financial side, the plaintiff, not disputed by the first defendant, was the primary homemaker and primary carer of Kritsada, including as to cooking meals, cleaning the Marrickville property, washing, ironing, carrying firewood, gardening, trimming trees around the house and in providing the first defendant with familial type support with his work and activities; she assisted with designing and supervising the construction of the 89/5 house. In quantitative terms, the first defendant in evidence assessed the plaintiff’s non-financial contributions compared to his as being 70 per cent but counsel for the plaintiff put that a more accurate figure was 90 per cent.

70 For the first defendant, he continued the role of the breadwinner from his employment with his net annual income rising over time to about $82,000 by the end of the relationship plus accrued superannuation entitlements. He said he received in 1993 an inheritance of $140,000 and some shares in BT valued at $2,000 on the death of his uncle. Mr Fox submitted that that income permitted the parties to lead a modest lifestyle on a par with typical marriages wherein the husband is the breadwinner and the wife the homemaker. It ought be noted that the first defendant said he paid a couple of thousand dollars each year to help support the plaintiff’s family in Thailand.

71 Non-financially, the first defendant claimed contributions by way of caring for Kritsada in the afternoon after his work, cooking at weekends with the plaintiff, doing some family washing and occasionally cutting firewood; he also in Thailand shared work concerning the construction of the 89/5 house and assisting maintenance of the teak plantation on Lot 115 – the plaintiff did not dispute those contributions.

72 There may be no doubt that this relationship had the first defendant as the effective financial contributor with a relatively modest participation by the plaintiff. However, on the non-financial side I incline towards the degree of contribution of the plaintiff as suggested by Mr Fox. In her evidence, not seriously challenged by Mr Cooper in cross-examination, the plaintiff presented as a dedicated and committed partner in the role of homemaker and carer who felt obliged to support and act in the interests of the first defendant and Kritsada as a family. It was not suggested she had any outside interests to reduce her effectiveness in that role. It is true that the first defendant made some relatively minor non-financial contributions, but it was the plaintiff who carried the burden, wholly so when he was absent for work, and particularly from mid-2002 when the first defendant became distracted with the second defendant.

Value of the parties’ financial position as at May 2003

73 The evidence dealt in detail with the parties’ financial resources. There were some differences in amounts, principally being the real property in Thailand and the value of the first defendant’s superannuation. It was in those two latter areas that the real contest in this case arose.

74 It is convenient to summarise the respective assets and liabilities of the parties according to the values ascribed by each of them, as follows –

Description Plaintiff’s value First Defendant’s Value

$

$

Plaintiff’s Assets

Lot 115 (land)
8,339

22,752

Teak plantation on Lot 115
22,298

162,286

Lots 53 and 57
6,651

21,997

Lot 143
5,384

15,483

89/5 house and land
23,818

78,168

ASG Scholarship Fund
(for Kritsada) (50%)
5,500
2,500-5,500

Household contents in Australia
500

2,500

Household contents in Thailand
700

15,000

Total:
$73,190

$323,686

First Defendant’s Assets

Marrickville property (100%)
750,000

600,000

Spring Hill property (100%)
175,000

175,000

Toyota Hilux (In Thailand)
3,000

5,000

Commonwealth Bank accounts
Nominal

Nominal

ASG Scholarship Fund
(for Kritsada) (50%)
5,500
2,500-5,500

Qantas shares
5,000

5,000

Telstra Shares
5,000

5,000

Skandia Super Fund
30,000

30,000

Household contents
Nominal

Nominal

Interest in State
Superannuation Fund
289,552
(if taken as a
lump sum)
No figure
conceded

Total: $1,263,052
$825,500
plus super

Total gross assets
of both parties: $1,336,242 $1,149,186
plus super

Plaintiff’s liabilities

Nil
-

-

First Defendant’s Liabilities

Mortgage to CBA over Marrickville property
30,000

30,000

Spring Hill property mortgage
200,000

200,000

Credit card debts
Nominal

10,000

Total: $230,000
$240,000

75 Marrickville property: It is to be noted that although the Marrickville property was valued by the first defendant at $600,000 as at May 2003 it was in fact sold for $750,000 on 1 August 2003; it was purchased in September 1996 for $290,000. As at May 2003 there was $30,000 still owing on the mortgage to the Commonwealth Bank so that the net equity available in the property according to the plaintiff was $720,000. In that situation of the amount received on the sale of the Marrickville property three months after May 2003, I do not think it unreasonable to accept $750,000 as its value as at May 2003. As Griffith CJ held in Spencer v Commonwealth of Australia (1907) 5 CLR 418 at 432, the value of land is what a willing purchaser would be prepared to pay to a vendor not unwilling, but not anxious, to sell.

76 Superannuation: As at 30 June 2003, the first defendant’s withdrawal lump sum benefit from the State Superannuation Scheme was $289,552.39 in the event of resignation, dismissal, discharge or retirement on or after reaching age 55 years. In the alternative, the first defendant could elect to take retirement benefits, estimated as at 30 June 2003 but projected to normal retirement age at 60 years, of a pension of $1,888.03 per fortnight (indexed annually) plus a lump sum basic benefit of $40,422.69; an alternative lump sum benefit of $472,007.50 was available on normal retirement. As it happened, the first defendant retired in February 2005, just before his 60th birthday on 4 October 2005 and opted for the benefit of a lump sum of $47,000 plus a lifetime pension which currently stands at $2,165 per fortnight; the $47,000 was rolled-over into an investment fund with Skandia, the present balance of which is $30,000 although he said also that it was only now $10,000 as $20,000 had been used to service his various borrowings. In any event, the superannuation benefits, I think, are a significant asset in the hands of the first defendant.

77 Mr Cooper acknowledged that the Court of Appeal, as I have observed, held in Chanter v Catts (64 NSWLR in para [23] per Hodgson JA) that superannuation entitlements were to be included as assets in the first step of the process and an order in the third step does not depend upon the contributions considered in the second step as being direct or indirect contributions. However, he put that it does not follow that the first defendant’s pension here should be included in the pool of assets but rather there should be separate consideration by reference to Coghlan (2005) 33 Fam LR 414 especially in para [75]. Significantly, it was put that the plaintiff made no contributions to the superannuation asset before cohabitation or after separation but it was conceded that during cohabitation, found by me here to be 12.5 years, the plaintiff’s indirect contribution to the superannuation aspect was significant by reason of her homemaker and parenting contributions. Mr Cooper identified two elements of superannuation: first, the $30,000 invested in the Skandia fund; and, second, the fortnightly pension of $2,165 - as to the former, he accepted that it should be included in the asset pool; but, as to the latter, he said it should be recognised as a payment to the plaintiff of 70 per cent (the estimate of her homemaker and parenting contributions) of one-half of the total capital improvement in the superannuation fund during the existence of the de facto relationship, that is, $45,000.

78 For the plaintiff, Mr Fox took the straightforward approach to superannuation of including in the asset pool as at May 2003 the then capital value of superannuation of $289,552. For the purposes of step one in the process, counsel submitted that that was the proper valuation of the superannuation asset.

79 I agree with Mr Fox’s approach. As at May 2003, when the first defendant was still in employment and age 57 years, the then lump sum withdrawal benefit was $289,552. If he had then taken early retirement the benefit would have been a lifetime pension of $1,384.09 per fortnight (indexed annually) plus a lump sum of $34,415.68 or an alternative lump sum benefit of $367,932.64; as I have noted above, the May 2003 projection benefit for normal retirement at age 60 years was $1,888.03 per fortnight lifetime pension plus lump sum of $40,422.69 or an alternative lump sum benefit of $472,007.50. Those projections are to been in light of what benefits the first defendant ultimately achieved on retirement in February 2005 of a fortnightly lifetime indexed pension of $2,165 plus a lump sum of $47,000. Those facts, together with the indirect contributions made by the plaintiff for 12.5 years during cohabitation with the first defendant as homemaker and parent, are relevant more to the third step of the process in determining what, if any, order should be made as to superannuation; but, in my view, in the first step of the process it is only proper to value the superannuation asset at $289,552.

80 In view of my approach, I do not think, as the plaintiff sought to do, that the

Skandia investment may properly be included as part of the asset pool as at May 2003. That investment was made by the first defendant on his retirement in February 2005 from the lump sum superannuation benefit of $47,000 then received. It can only have relevance in considering the first defendant’s post-separation assets and expenditure.

81 Properties in Thailand: This proved to be the most contentious issue in the proceedings. Its determination was not assisted by the parties not availing themselves of the opportunity of a joint valuation and resulted in competing valuations from three persons which was compounded by language difficulties, with the need for translation of reports and of oral evidence, and valuers’ practices in Thailand. The two witnesses for the plaintiff gave their evidence via telephone link to Thailand through an interpreter and the first defendant’s witness gave evidence in court through an interpreter. Although the respective valuations were given in 2006 and 2007, the way in which the parties argued the case was to regard the valuations as being relevant as at the date of their separation in May 2003 and thereafter to the date of the trial. Also, the parties agreed on a conversion rate for present purposes for the Thai baht to Australian dollars. Those procedural aspects greatly assisted a consideration of the substantive issues raised.

82 The properties and the respective valuations given to them by the parties’ experts were as follows –

Property Plaintiff’s valuation First Defendant’s valuation

Lot 115 (land) 229,337.50 baht
($A 8,339) 629,000 baht
($A 22,752)

Lots 53 and 57
180,425.50 baht
($A 6,651) 605,000 baht
($A 21,997)

Lot 143
148,050 baht
($A 5,384) 426,000 baht
($A 15,483)

89/5 house/land 654,999 baht
($A23,818) 2,180,000 baht
($A 78,168)

Teak Plantation
(On Lot 115) 613,000 baht
($A22,298) 8,000,000 baht
($A162,286)

Totals:
1,826,012 baht
($A66,490) 11,840,000 baht
($A300,686)

83 For the plaintiff, Watcharin Hanlakorn gave evidence as to the value of the five properties being Lots 115 (land), 53, 57, 143 and 89/5 in a report dated 6 November 2006. He was a valuer employed by Pasupat Appraisal Company Limited in Bangkok. Mr Hanlakorn was a valuer registered with the Valuers Association of Thailand and said he conducted about 100 valuations each year. He holds a Bachelor in Civil Engineering and a Diploma in Construction from the Rajamongkhala Institute of Technology, Bangkok. Since 2007 he has been a senior valuer with Colliers International Thailand with over five years’ experience in valuing real property in Thailand. His commission from the plaintiff was to assess the market value of the subject properties. In his report he analysed in some detail the locations, physical characteristics, transportation available, public facilities, surrounding area, living area/building size, type of building, construction/decoration and repair and maintenance features. In his task, Mr Hanlakorn used the market approach for the properties, other than the 89/5 house, which he defined by reference to the International Valuation Standards 2000 at pages 93-95 as:

…the estimated amount for which a property should exchange on the date of valuation between a willing buyer and a willing seller in an arms length transaction after proper marketing wherein the parties had each acted knowledgeably, prudently and without compulsion.

84 I consider that approach to be consistent with that stated as to the valuing of land by Griffth CJ in Spencer v Commonwealth as cited by me earlier. As to the 89/5 property, he used the cost approach for the house based on the depreciated replacement cost plus the market approach to value the site as it is rented and earns regular income for the owner.

85 Mr Hanlakorn was challenged in cross-examination concerning the error in valuing Lot 115 without reference to the teak plantation and in failing to take account of increases in land values issued by the Thai government over the period 2003 to 2005. He denied any errors and maintained the government valuations were of the land or unimproved value only for taxation purposes; he affirmed his use of the market approach method.

86 The first defendant relied on the report of Manas Mangkonthong, undated but translated on 27 April 2007, the Chief Executive Officer of the Office of Knowledge Management Legal and Administrative Company Limited. Mr Mangkonthong was a barrister at the Thai Bar who practised regularly in courts on behalf of clients and, as he said in his report:

…can hold a brief to represent a client and cross-examine in Court anywhere in the country and in any jurisdiction without limitation including Civil, Commercial, Criminal, Bankruptcy and Administrative cases, etc.

87 As to the valuation of properties in Thailand, Mr Mangkonthong said he had been doing it for 20 years for use by him in the Thai courts. However, he conceded he was not qualified as a valuer with the Valuers Association of Thailand but his experience of valuing covered “land, building blocks on the piece of land, everything that is on the piece of land.” In these proceedings he valued the plaintiff’s real properties, the teak plantation and the 89/5 house and, in doing so, relied on his experience which “as the valuer comes with my lawyer experience … as a lawyer, I have to represent the cases … Use it in the court of Thailand.”

88 Significantly, Mr Mangkonthong prepared his report from government documents as to the properties concerned without an inspection of the properties, other than the teak plantation later, and from information given by members of his “team” in the various provinces in Thailand. He said the values he determined were the values the government gave to the properties for taxation purposes “as the standard point and then I use other factors to consider the price.” Otherwise, the methodology he used to reach the valuations was not specified in his report or in his oral evidence. The following cross-examination occurred:

Q. But your report doesn’t set out any of this methodology, does it?
A. This is just part of what I used to value this land. All these government documents, you can always check any time at all.

Q. … Your report does not set out that methodology, does it?
A. No, I didn’t.

Q. …The methodology which you’ve adopted is one that does not involve determining the willingness of a seller of a property and the willingness of a possible buyer to buy that property?
A. My calculation arises from the people around the area, what’s the selling price and the buying price around the same area. You do not know the satisfaction of your own buyer.

Q. But you have not set out in your report a methodology which explains that, have you?
A. With this, my intention in the first place is that I’m willing to give evidence as a witness. If anyone has any questions, you can ask me anything at all.

Q. …Your methodology does not disclose any recent sales, transactions that occurred in the same area as the subject properties, does it?
A. It is an index in itself …

Q. In your report, you have not sought to compare recent sales in the area of each of the subject properties, have you? I’m asking you what your report says.
A. I’m telling you the true and correct value that you can buy and sell … My report didn’t show you the minimum price. I’ve only put in here the truth and the true value of what I have encountered.

(Mr Mangkonthong nodded assent that the market approach of comparing recent sales was not the proper way to value Thai property.)

Q. You indicated to the court a minute ago that you relied on information provided by people who worked with you in order to complete your report. Is that correct?
A. Yes.
…

Q. And that your report was prepared based on that information?
A. Based on that and also from my analysis.
Q. This report was finalised before you had inspected the properties. That’s correct?
A. That is correct.

89 Amnat Jermlae, a Forestry Officer with the Thai Department of National Parks, Wildlife and Vegetation, gave evidence in a report dated 22 October 2006 and affirmed in a report dated 9 October 2007 valuing the teak plantation on Lot 115. Mr Jermlae was the Head of the Conservation Development Study Unit in the Department and held a Bachelor of Agriculture degree; he had worked in river management and natural resource conservation. Although he did not specialise in the valuation of teak plantations, this was his first and formal one, he had valued other timbers with his specialty in growing forests.

90 Mr Jermlae visited the subject plantation and found 2,620 trees of which only 1,138 were live trees and 1,482 were dead; they were planted 2 x 2 metres apart rather than the preferable margin of 4 x 4 metres so that their value was lower with the reduced growing capacity. By using the formula of perennial trees of the Forestry Industry Organisation, he found the buying and selling prices based on the size of the subject plantation of 81.76 cubic metres of wood, of nine graded levels of quality, was 5,000-6,000 baht per one cubic volume but not exceeding 7,500 baht. He concluded a valuation estimated at 613,200 baht. It was suggested to Mr Jermlae in cross-examination that his approach was erroneous.

91 Mr Mangkonthong agreed an assessment of value based on cubic metres as opposed to a per tree approach was correct and, importantly, Mr Mangkonthong’s valuation relied on there being 2,000 teak trees on the site without regard to the dead trees. Also, Mr Mangkonthong valued the plantation, in the absence of an inspection, as if the trees were planted 4 x 4 metres apart and not, as they were, 2 x 2 metres apart. Importantly also, and contrary to his other evidence, Mr Mangkonthong based his valuation on 4,000-5,000 baht per tree so that for 2,000 trees he simply calculated a total value of 8,000,000 baht. Nowhere in his evidence did Mr Mangkonthong take into account as Mr Jermlae did the particular characteristics of this plantation who thereby exposed, without any challenge, the appropriateness of his approach.

92 I prefer and accept the valuation of the teak plantation by Mr Jermlae over that by Mr Mangkonthong. I will, therefore, adopt the value for it of 613,200 baht ($A22,298).

93 Given my earlier conclusions as to Mr Mangkonthong’s evidence as to the valuation of the real properties, I prefer and will adopt the evidence of Mr Hanlakorn. I have to say I found Mr Mangkonthong’s evidence to be uncomfortable and lacking in any logical methodology or basis; I do not accept he was appropriately qualified to give such evidence and certainly he could not, unlike Mr Hanlakorn, support his conclusions.

94 In the result, I find the plaintiff’s real property and teak tree assets in Thailand as at May 2003 had a value in the total amount of 1,826,012 baht, that is, $A66,490. They form part of the asset pool in that sum for the purpose of these proceedings.

95 Other assets: The remaining identified assets of the parties as at May 2003 did not receive a great deal of attention by the parties and there was little variation in the respective values assigned to them. I will, therefore, deal with each quite shortly.

96 The Spring Hill property in Brisbane was acquired without any contribution by the plaintiff so that, as conceded by Mr Fox, it should not form part of the asset pool.

97 As to the parties’ respective household effects, I think, as was suggested, nominal amounts may be assessed – for the plaintiff’s chattels in Australia and in Thailand I will allow $1,200 and for the first defendant $5,000, a total of $6,200.

98 There was insufficient evidence of monies held by the parties in bank accounts to make any provision.

99 The first defendant had a Toyota Hilux for use in Thailand. The plaintiff valued this at $3,000 and the first defendant said the value was $5,000 but its value was not traversed in the evidence. I will put it at $4,000.

100 Finally, three assets in joint names were identified, namely: interest in the Australian Scholarship Group Friendly Society Limited being a scholarship fund for Kritsada’s education in the total amount of $11,020; Telstra shares worth $5,000; and Qantas shares since sold and the proceeds held by Paul & Paul, Solicitors, in the amount of $4,968. Those amounts were common ground. The total value of those three assets, which I will accept, was $20,988 for inclusion in the asset pool. However, they were jointly owned by the parties and so any distribution in the third step of the process will require transfer of ownership, which the plaintiff sought, rather than mere distribution from the pool as a money amount.

101 Conclusion as to asset pool and valuation: In the result, I identify the assets of the parties and their valuation as at May 2003 as follows –

Description
Value

$

Thai properties
66,490

Marrickville property
750,000

Superannuation
289,552

Household effects
6,200

Toyota Hilux
4,000

ASG Scholarship Fund
11,020

Telstra shares
5,000

Paul & Paul trust monies
4,968

Total:
$1,137,230

102 The parties’ liabilities, apart from the mortgage over the Spring Hill property which has been excluded from the pool, were in the agreed amount of $30,000 in respect of the mortgage to the Commonwealth Bank for the Marrickville property. There was insufficient evidence to make any allowance as to any other liabilities, such as credit card debts. Therefore, the value of the net assets in the pool for distribution is $1,107,230. Of that amount, $78,184 constitutes the net assets held by the plaintiff, made up of $66,490 for the Thai properties, household effects of $1,200, ASG Scholarship Fund of $5,510, Telstra shares of $2,500 and Paul & Paul trust monies of $2,484.

Treatment of first defendant’s post-separation expenditure

103 After separation in May 2003, the first defendant said in evidence that his expenditure was for “general living expenses”. As at that date, the parties’ principal assets in Australia, as Mr Fox identified, were the Marrickville property and the first defendant’s superannuation interest both of which were under his control. The Marrickville property on sale in October 2003 rendered net proceeds to the first defendant of $720,000 which were used to purchase unencumbered the Chapel Hill property in Brisbane for $562,000 with the second defendant as tenants in common. The plaintiff did not receive anything from the sale proceeds of the Marrickville property as the first defendant denied any need to consult with her or to pay her anything. Indeed, from the start of the separation the plaintiff, apart from the few household effects referred to earlier, received nothing from the first defendant who simply walked away from the relationship to commence another relationship with the second defendant. The plaintiff continued her role in caring for the parties’ then nine-year old son, Kritsada, who resided with her.

104 However, the first defendant’s evidence disclosed that from late-2003 he began expenditure of not insignificant sums of money after he obtained a line of credit from the Commonwealth Bank of $300,000 secured against the Chapel Hill property. Although denying he simply went on a “spending spree”, the first defendant admitted in cross-examination to expenditure over a period from May 2004 to June 2006 of about $500,000 or, put another way as he conceded, of about $12,000 per month since May 2003. The suggestion by Mr Fox in cross-examination of the first defendant that the extraordinary amount of expenditure resulted in him not having any regard for the legitimate claims of the plaintiff in a property settlement was denied and he maintained he was entitled to use the funds as he saw fit and not to pay the plaintiff anything. Mr Fox thereupon submitted that “it is simply not reasonable or believable that expenditure at the rate of $144,000 per annum for a person of his relatively modest means, now living on a pension of about $2,000 per fortnight, is other than reckless conduct.” In the circumstances here, I agree with that submission. It may not, in my view, be unreasonably inferred that the first defendant had resolved on a course of expenditure in his own interest to deny access to any claims of the plaintiff for distribution of assets by reason of their relationship of at least 12.5 years.

105 For completeness, it ought be noted the matters the subject of the first defendant’s expenditure included legal fees associated with these proceedings and Family Court proceedings concerning Kritsada, purchase of two motor vehicles, medical expenses for the first and second defendants, improvements to the Chapel Hill property, support payments for Kritsada, travel and accommodation, alleged work-related expenses as a scientist but after retirement, establishment of an endowment fund for post-graduate students at the University of Queensland, university tuition fees for a nephew of the second defendant, payments to discharge loans and losses of second defendant’s restaurant in Thailand, repayment of credit card debts and interest charges.

106 In summary, the first defendant agreed in cross-examination that his net assets were now worth about $350,000 so that since separation, when his net assets were about $720,000, he has spent at least half.

107 In my view, the course of conduct by the first defendant in his post separation expenditure is relevant in considering the third step of the process as to a just and equitable order for distribution of property. Such conduct favours some relief being granted to the plaintiff who, effectively, has benefited nought from her homemaking and parenting contributions to the relationship.

Treatment of superannuation entitlements

108 Earlier, I have outlined details of the first defendant’s superannuation position and concluded that as at May 2003 it gave him an accrued capital interest of a lump sum then worth $289,552. As it happened, on retirement he took an indexed lifetime pension, including an initial basic benefit lump sum, which is currently $2,165 per fortnight. It is indeed a most significant and valuable asset of the first defendant which, to date, the plaintiff has not shared notwithstanding the period of at least 12.5 years in her homemaking and parenting role, a role which the first defendant wished her to perform rather than engage in employment during their relationship. The May 2003 capital value of the superannuation entitlement was estimated to rise to a lump sum benefit of $472,007.50 at retirement at age 60 years in April 2005.

109 By the first defendant electing to take pension rather than a lump sum on his retirement in February 2005, no portion of which can be commuted to a lump sum, he has thereby effectively removed from the asset pool after that date the superannuation interest. However, my view is that pursuant to s 38(1)(e) of the Property (Relationships) Act an order could be made for the first defendant to pay a fortnightly sum to the plaintiff to recognise the superannuation component but that would frustrate the Court’s duty in s 19 to make such order, so far as is practicable, as will finally determine the financial relationships between the parties.

110 I conclude that the superannuation entitlements of the first defendant are relevant to take into account in considering a just and equitable order in the third step of the process. If that be according to the pool of assets as at separation in May 2003 then it is proper to accept the capital value of superannuation being $289,552 or, if later as at the date of trial, then a periodic payment would be appropriate. In that latter respect, no such periodic payment was claimed as the plaintiff’s case was for calculation as at the date of separation, no doubt with s 19 in mind. Also, of course, a periodic payment would be of diminishing value in real terms as time passes.

Date for division of property

111 Given the extensive post-separation expenditure of the first defendant and the position with the superannuation interest, Mr Fox submitted for the plaintiff that the calculation for the division of property between the parties should be conducted on the basis of their assets, financial resources and liabilities as at May 2003 when separation occurred. In the alternative, if it be as at the date of trial then the court should notionally “add-back” into the asset pool those assets expended by the first defendant post-separation. Mr Cooper for the first defendant presented his submissions mainly by reference to the asset pool at the date of trial but with reference to the May 2003 position excluding the post-separation “add-back”. I did not discern, however, any real resistance by Mr Cooper to using May 2003 as the datum point which, if adopted, would remove from direct consideration the inclusion of the post-separation expenditure.

112 Ordinarily, though not invariably, property is valued at the date of trial. However, as Brereton J said in Kardos v Sarbutt (34 Fam LR at 559 in para [31]), “nonetheless the ultimate task of evaluating the respective contributions of the parties may sometimes be facilitated by adopting the date of separation for identifying and valuing the property, particularly when there have not been ongoing contributions by one party which have benefited the other since separation.” This is clearly so in the present case post-separation. In addition, there is the added difficulty, as I have outlined, with respect to the superannuation issue. In the circumstances, I am satisfied that it is proper here to determine appropriate orders with respect to the property division in light of the property pool as at the date of separation in May 2003.

113 Even so, and perhaps in an indirect sense, I think it proper to take into account in considering a just and equitable order the first defendant’s post-separation expenditure in the sense of “a holistic value judgment” as to his conduct and ability to so engage by denial to the plaintiff of any real recognition and benefit from the 12.5 years of their relationship. In that respect, I adopt the words of Young CJ in Eq in Loibner v Owens [2006] NSWSC 410 in para [43] that “expenses incurred by [the first defendant] after separation were as a result of choices made by [him] in which the [plaintiff] had no say, or expenses from which [she] will not benefit.”

A just and equitable property adjustment

114 Mr Fox based the order sought by the plaintiff with regard to the parties’ respective financial positions at the commencement of the relationship in November 1990 (arguably that it commenced to some degree in 1988) and their overall financial and non-financial contributions during its course to May 2003, including the inheritances each received in that period. He submitted that that would result in the plaintiff receiving 26 per cent of the property pool.

115 Mr Cooper emphasised that the first defendant made all the income for the joint benefit of the parties during their relationship. There was no dispute that the plaintiff undertook the majority of homemaker/parent/welfare functions which he put at 70 per cent – I have found it to be closer to 90 per cent. It followed, so it was argued, that –

The first defendant made almost all the financial contributions.

. The plaintiff made most of the homemaker contributions.

· During the relationship, the first defendant acquired assets in his own name in Australia and the

plaintiff acquired assets in Thailand in her own name.

. The plaintiff’s contribution should not be considered unimportant, but, weighed against the fact that

the first defendant paid for everything, it cannot be said to be substantial.

116 Mr Cooper relied heavily on the valuation of the plaintiff’s properties in Thailand being at the higher level according to his expert evidence – contrary to the finding I have ultimately made in this matter – to found the submission that the plaintiff should receive 70 per cent of one-half of the total capital improvement to the superannuation which he calculated at $45,000; the first defendant would retain the pension. Even if the Thai properties were valued towards the low point, the contribution made by the plaintiff to the Australian properties was equal to or outweighed by the first defendant’s contribution to the Thai properties. In all the circumstances, then, Mr Cooper put that the proper determination was for the parties to retain their assets in their own name. Effectively, he submitted the plaintiff’s claim should be dismissed.

117 However, Mr Cooper, very properly and fairly if I may say so, conceded that if the approach of Mr Fox were adopted then he could not resist the plaintiff receiving 26 per cent of the relevant property pool as being an amount within the available range, albeit at the high end. He added, of course, that the real question was 26 per cent of what.

118 It is not possible, as both parties agreed, to adopt a purely mathematical approach in determining what may be just and equitable to the property division. That is to accept, which I do, the holistic approach.

119 At the commencement of the relationship, I have found that the assets brought to it by the first defendant were about twenty times those brought by the plaintiff. Her net asset position was modest with ownership of Lot 115 and the teak trees but where the first defendant made a substantial contribution. However, I have found also that the plaintiff acted as a dedicated and committed partner in the role of homemaker and, later, as carer of the parties’ child. The first defendant desired she perform that role rather than engage in employment.

120 During the course of the relationship the first defendant acquired the Marrickville property which turned out to be a valuable asset with a significant capital appreciation and he had a modest inheritance from his uncle. Also from inheritances, the plaintiff acquired properties in Thailand being Lots 53, 57, half of Lot 143 and the land at 89/5 in Ban Ko Noi. The first defendant made financial contributions to the Thai properties. At the end of the relationship, as I have assessed, the plaintiff had net assets of $78,184 comprised mainly of the Thai properties and the first defendant had $1,029,046 being principally the Marrickville property and superannuation. Jointly in the asset pool, the parties had an interest in Kritsada’s scholarship fund and shares in Telstra and Qantas worth a total of $20,988.

121 On separation, apart from the Thai properties, the plaintiff received no benefit from the first defendant who simply walked away to commence the relationship with the second defendant and took the assets in his name and the whole of a superannuation pension. He then was able financially to embark on a “spending spree” to the extent of about $500,000 at the rate of expenditure of $12,000 per month. In my view, in a very real sense the first defendant has benefited solely from the fruits of the relationship with the plaintiff notwithstanding the role she played in it in most important respects by performing home duties to enable the first defendant to concentrate on his career and by being the stable family base. She continues the care of Kritsada, albeit that the first defendant provides some financial support. That result, I am comfortably satisfied, simply cannot be right. It is unfair and unjust to the plaintiff as would require an adjustment of the property interests, particularly bearing in mind the length of the relationship of at least 12.5 years during the prime time of the plaintiff’s life from 31 to 44 years of age.

122 In the circumstances, I have no difficulty in accepting as appropriate an order to the effect that the plaintiff receive 26 per cent of the property pool as at May 2003. Indeed, I consider such amount to be well within the available range and certainly not excessive at the high end.

123 I interpose reference to the s 18 limitation point. In view of my finding as to the date the de facto relationship ceased it is strictly unnecessary to deal with this. However, if I be wrong in my finding, then, as a matter of discretion, I would have granted leave to the plaintiff under s 18(2) of the Property (Relationships) Act to bring the present application. My reasons for so finding equate to my conclusions on the circumstances justifying the making of a property adjustment order in the plaintiff’s favour. In addition, I accept the submission put for her that she has limited means with a modest income from employment as a cleaner and a single parent’s pension. On the other hand, as Mr Fox submitted, “there is no countervailing hardship to the First Defendant of such magnitude that it outweighs the hardship to the Plaintiff in the event leave is not granted to her to maintain the present proceedings.”

124 If I be in error in determining the value of the assets as at the date of separation rather than the date of trial then I should indicate my acceptance of Mr Fox’s submission that it would be appropriate to notionally add-back into the then property pool the assets expended since separation by the first defendant’s expenditure according to the approach in Kowaliw [1981] FLC 91-092 at 76,644; Omacini (2005) 191 FLR 317 in para [39]; Kardos v Sarbutt (2006) 34 Fam LR 550 in para [31]; and Townsend (1994) 18 Fam LR 505 at 509 in paras [40]-[45] per Nicholson CJ. Specifically, the circumstances as I have found them here show, in my view, that the first defendant by his post-separation expenditure has expended money on legal fees and embarked on a course of conduct designed to reduce the assets or has reduced the value of assets by acting recklessly, negligently or wantonly. Such add-backs, on the evidence, amount to $504,734. Otherwise, the joint net asset position as at the date of trial may readily be calculated, by applying my findings as to the value of the Thai properties, at $427,128. The total amount is, for this purpose, therefore, $931,862 plus the first defendant’s pension. A holistic approach, as in Loibner v Owens [2006] NSWSC 410 in para [43] supports also adding-back into the pool the post separation expenditure.

125 Necessarily, the order to adjust the property interests here will have to be by payment of a lump sum to the plaintiff but three of the assets are presently in the joint names of the plaintiff and the first defendant so that an appropriate order would be to transfer that property from one to the other. The assets concerned are the ASG Scholarship Fund for Kritsada, Telstra shares and proceeds from the sale of Qantas shares held by Paul & Paul, in the total amount of $20,988. As part of the property adjustment, I think it appropriate, as sought by Mr Fox and not really challenged by Mr Cooper, for those assets to be transferred from the first defendant to the plaintiff giving her a value of $10,494.

126 The calculation of the property adjustment in favour of the plaintiff is 26 per cent of the net assets of the parties as at May 2003 of $1,107,230, that is, $287,880. Given the value of the plaintiff’s assets of $78,184, that leaves $209,696 for distribution made up of $10,494 for the three transferred assets and $199,202 as a lump sum cash payment. In the event the first defendant fails to comply with payment of the amount of $199,202, then, as sought by the plaintiff, the Chapel Hill property in Brisbane should be sold with the proceeds made available to pay the plaintiff the amount due to her. Otherwise, the parties should be declared as the owners of all assets presently held by them and be solely responsible for all liabilities held in each of their respective names.

Costs

127 Mr Fox submitted that if an award were made in the plaintiff’s favour for more than $60,000 (the jurisdictional limit of the Local Court and having in mind Pt 42 r 42.30 of the Uniform Civil Procedure Rules 2005) then the first defendant should pay her costs of and incidental to the proceedings on a party-party basis. However, counsel said, any offers of compromise made during the course of the proceedings by either party will need to be dealt with separately following delivery of the Court’s judgment. Mr Cooper relied on Pt 42 r 42.30 and on what Brereton J said in Kardos v Sarbutt (No. 2) [2006] NSWCA 206 in para [13], by relying on s 117 of the Family Law Act 1975 (Cth), to the effect that “the prima facie position … that each party bear his and her own costs” so as to conclude (in para [35]) that “the starting position should be that each party should bear its own costs”. Mr Cooper, however, claimed costs from the plaintiff if the first defendant be successful as Pt 42 r 42.30 was silent in inhibiting a defendant’s costs.

128 In Dunstan v Rickwood (No. 2) [2007] NSWCA 266, the Court of Appeal (per McColl JA with Beazley and Ipp JJA agreeing) considered Kardos v Sarbutt (No. 2) in light of the costs provisions in ss 3 and 98(1) of the Civil Procedure Act 2005, s 364 of the Legal Profession Act 2004 and Pt 42 r 42.1 of the Uniform Civil Procedure Rules 2005 which in their overall effect make costs to be in the discretion of the court, either on an ordinary basis or an indemnity basis, and where costs should follow the event unless some other order should be made as to the whole or any part of the costs. After finding that the remarks of Brereton J in Kardos v Sarbutt (No. 2) were obiter dicta, McColl JA observed (in para [37]) that this State has not seen fit to adopt a provision like s 117 of the Family Law Act 1975 (Cth) and then concluded (in para [40]):

In my view, this Court should approach the question of the costs of the trial on the basis of the general discretion established by s 98 and UCPR 42.1. Prima facie, costs should follow the event. On that basis, the respondent having been successful at trial is entitled to her costs.

129 I am bound by the decision in Dunstan v Rickwood (No. 2) and, in any event, may I say I respectfully agree with it. Accordingly, costs here, and having in mind that the plaintiff has been found entitled to an award higher than the $60,000 jurisdictional limit of a Local Court, should be determined in the ordinary way as prima facie following the event and within the exercise of the Court’s general discretion. However, as Mr Fox foreshadowed, there may be some circumstance which requires the basis of any costs order to be considered separately after judgment is given. I will do so.

Conclusion and orders

130 Pursuant to s 20 of the Property (Relationships) Act 1984, the plaintiff is entitled to an adjustment in her favour of 26 per cent of the property interests of the parties to the relationship valued as at the date of separation in May 2003 being a lump sum payment by the first defendant to her of $199,202 within 28 days of an order being made. Failing the first defendant’s compliance with that payment, the first and second defendants are to take all necessary steps to effect a sale of their property at Chapel Hill in Queensland to enable the proceeds thereof to satisfy the amount of $199,202 due to the plaintiff plus interest in accordance with the draft order proposed by the plaintiff. In addition, within 14 days of an order being made the first defendant is to transfer to the plaintiff his interest in the ASG Scholarship Fund, the Telstra shares and the balance of monies held in trust by Paul & Paul, Solicitors, in relation to the Qantas shares. Otherwise, the parties should be declared the owners of all assets presently held by them and be solely responsible for all liabilities held in each of their respective names.

131 As to costs, I see no reason why the first defendant should not pay the plaintiff’s costs of the proceedings, including of the first defendant’s cross-claim which was dismissed, in the ordinary way and on the usual basis. However, I will hear the parties on costs should a different order be sought. As to the second defendant’s costs, in light of her submitting appearance, it is appropriate that no order be made so that each party is to bear her or his own costs in that respect.

132 The plaintiff should bring into court at a time to be arranged short minutes of order to give effect to my decisions in this matter, at which time I will hear the parties on costs and on any other outstanding issue before making final orders.

**********

Property	Plaintiff’s valuation	First Defendant’s valuation
Lot 115 (land)	229,337.50 baht ($A 8,339)	629,000 baht ($A 22,752)
Lots 53 and 57	180,425.50 baht ($A 6,651)	605,000 baht ($A 21,997)
Lot 143	148,050 baht ($A 5,384)	426,000 baht ($A 15,483)
89/5 house/land	654,999 baht ($A23,818)	2,180,000 baht ($A 78,168)
Teak Plantation (On Lot 115)	613,000 baht ($A22,298)	8,000,000 baht ($A162,286)
Totals:	1,826,012 baht ($A66,490)	11,840,000 baht ($A300,686)

CITATION:	Sudsai v Barbetti & Anor [2008] NSWDC 30
HEARING DATE(S):	22 October 2007, 23 October 2007, 24 October 2007, 25 October 2007, 26 October 2007, 10 December 2007 and 11 December 2007
JUDGMENT DATE:	18 March 2008
JURISDICTION:	Civil
JUDGMENT OF:	Hungerford ADCJ
DECISION:	(1) Plaintiff entitled to adjustment in her favour of 26 per cent of the property interests of the parties valued as at the date of separation in May 2003; (2) First defendant to pay the plaintiff a lump sum of $199,202 within 28 days; (3) Failing the first defendant’s compliance with payment, the first and second defendants take all necessary steps to effect a sale of their property at Chapel Hill in Queensland and to apply the proceeds to satisfy the payment to the plaintiff in (2) hereof plus interest; (4) First defendant to transfer to the plaintiff within 14 days his interest in the ASG Scholarship Fund, Telstra shares and funds held in trust by Paul & Paul, Solicitors, in relation to Qantas shares; (5) Otherwise, the parties be declared the owners of all the assets presently held by them and be solely responsible for all liabilities held in each of their respective names; (6) No order as to the second defendant’s costs; (7) Plaintiff and first defendant to he heard on costs; and (8) Plaintiff to bring into Court short minutes of order.
CATCHWORDS:	FAMILY LAW – De facto relationships – Adjustment of - parties’ property interests – Application under s 20 of Property (Relationships) Act 1984 – Relevant property – Superannuation entitlements - Contributions of financial and non-financial nature – Inheritances – Evaluation of contributions – Proper date to value assets – Valuation of overseas real property – Duration of de facto relationship – Nature of a de facto relationship – Time limit of 2 years within which claim to be brought – Leave available to extend limitation period – Significant post-separation expenditure by one party to the - relationship – Notional add-back of such expenditure into asset pool – Homemaking and parenting roles – Nature and type of orders which may be made – Just and equitable order – Holistic approach – Payment of a lump sum – Sale of real property to secure payment – Transfer of interest in personal property – Principles as to costs of proceedings.
LEGISLATION CITED:	Civil Procedure Act 2005, ss 3 and 98(1) District Court Act 1973, ss 51 and 134 Evidence Act 1995, ss 128 and 132 Family Law Act 1975 (Cth) ss 75(2) and 117 Legal Profession Act 2004, s 364 Marriage Act 1961 (Cth) Property (Relationships Act 1984, ss 3(1), 4, 14(1), 15(1), 16, 17, 18, 19, 20, 38 and 42 Uniform Civil Procedure Rules 2005, Pt 42 r 42.1 and Pt 42 r 42.30
CASES CITED:	Bilous v Mudaliar (2006) 35 Fam LR 55 Chanter v Catts (2005) 64 NSWLR 360 Coghlan (2005) 33 Fam LR 414 Davey v Lee (1990) 13 Fam LR 688 Dunstan v Rickwood (No 2) [2007] NSWCA 266 Evans v Marmont (1997) 42 NSWLR 70 Fagan (1980) 23 SASR 454 Graham v Wiegand [1999] NSWSC 1024 Horton v Russell [2006] NSWSC 506 Joy v Cox [2007] NSWSC 1224 Kardos v Sarbutt (2006) 34 Fam LR 550 Kardos v Sarbutt (No 2) [2006] NSWCA 206 Kowaliw [1981] FLC 91-092 Loibner v Owens [2006] NSWSC 410 Omacini (2005) 191 FLR 317; 33 Fam LR 134 Petersen v Gregory; Estate of Glen Alfred Petersen [2007] NSWSC 8 Spencer v Commonwealth of Australia (1907) 5 CLR 418 Townsend (1994) 18 Fam LR 505
PARTIES:	Benjarat (Noi) Sudsai – Plaintiff Michael Francis Barbetti – First Defendant Napawan Klanprachar – Second Defendant
FILE NUMBER(S):	4268 of 2004
COUNSEL:	Mr ADB Fox (Plaintiff) Mr A Cooper, Solicitor/Advocate (First and Second Defendants)
SOLICITORS:	Stuart Fowler & Partners (Plaintiff) Barry & Nilsson, Brisbane (First and Second Defendants)

$
Two Honda Civic motor vehicles (half share)	2,500
Home unit at Old Street, Ashfield (half share)	35,000
Investment unit in Perth (half share)	50,000
Home unit at Alt Street, Ashfield (half share)	10,000
Superannuation interest (but less than)	34,554
Total (approximately):	$ 132,054

Description	Plaintiff’s value	First Defendant’s Value
$	$
Plaintiff’s Assets
Lot 115 (land)	8,339	22,752
Teak plantation on Lot 115	22,298	162,286
Lots 53 and 57	6,651	21,997
Lot 143	5,384	15,483
89/5 house and land	23,818	78,168
ASG Scholarship Fund (for Kritsada) (50%)	5,500	2,500-5,500
Household contents in Australia	500	2,500
Household contents in Thailand	700	15,000
Total:	$73,190	$323,686
First Defendant’s Assets
Marrickville property (100%)	750,000	600,000
Spring Hill property (100%)	175,000	175,000
Toyota Hilux (In Thailand)	3,000	5,000
Commonwealth Bank accounts	Nominal	Nominal
ASG Scholarship Fund (for Kritsada) (50%)	5,500	2,500-5,500
Qantas shares	5,000	5,000
Telstra Shares	5,000	5,000
Skandia Super Fund	30,000	30,000
Household contents	Nominal	Nominal
Interest in State Superannuation Fund	289,552 (if taken as a lump sum)	No figure conceded
Total:	$1,263,052	$825,500 plus super
Total gross assets of both parties:	$1,336,242	$1,149,186 plus super
Plaintiff’s liabilities
Nil	-	-
First Defendant’s Liabilities
Mortgage to CBA over Marrickville property	30,000	30,000
Spring Hill property mortgage	200,000	200,000
Credit card debts	Nominal	10,000
Total:	$230,000	$240,000

Description	Value
$
Thai properties	66,490
Marrickville property	750,000
Superannuation	289,552
Household effects	6,200
Toyota Hilux	4,000
ASG Scholarship Fund	11,020
Telstra shares	5,000
Paul & Paul trust monies	4,968
Total:	$1,137,230