Sullman v Sullman - [2002] NSWSC 169

No judgment structure available for this case.

Reported Decision:
(2002) DFC 95-248

New South Wales

Supreme Court

CITATION: Sullman v Sullman [2002] NSWSC 169

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 5016/99

HEARING DATE(S): 29/1/02-4/2/02, 6/2/02-8/2/02

JUDGMENT DATE: 27 March 2002

PARTIES :

Penelope Ann Sullman (plaintiff; cross-defendant)
Michael John Sullman (defendant; cross-claimant)

JUDGMENT OF: Campbell J

COUNSEL : D E Grieve QC (plaintiff; cross-defendant)
R C Lethbridge SC; with N Jackson (defendant; cross-claimant)

SOLICITORS: M C Griffith & Co (plaintiff; cross-defendant)
Hunt & Hunt (defendant; cross-claimant)

CATCHWORDS: FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS - construction of section 20 Property (Relationships) Act 1984 application of transitional provisions for 1999 amendments - whether contributions after end of relationship can be taken into account - whether financial contributions can be taken into account under section 20(1)(b) - meaning of "just and equitable" - EVIDENCE - no Jones v Dunkell inference available where witness not called is a solicitor and solicitor giving evidence would involve waiver of legal professional privilege - EVIDENCE - effect of failure to cross-examine - PERSONAL PROPERTY - ownership and possession - title to motor vehicle

LEGISLATION CITED: Property (Relationships) Act 1984
Child Support (Registration and Collection) Act 1988 (Cth)
Property (Relationships) Legislation Amendment Act 1999
De Facto Relationships Act 1984
Family Law Act 1996
Conveyancing Act 1919
Casino Control Act 1992
Child Support (Assessment) Act 1989

CASES CITED: D v McA (1986) 11 Fam LR 214
Roy v Sturgeon (1986) 11 NSWLR 454
Howland v Ellis [2001] NSWCA 465
George v Hibberson [1987] DFC 95-054
Evans v Marmont (1997) 42 NSWLR 70
Myers v Myers 21 October 1986; (1987) DFC 95-056
Stephenson v State Bank of New South Wales Ltd (1996) 39 NSWLR 101
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
Hibberson v George (1989) 12 Fam LR 725
Nguyen v Schieff [2002] NSWSC 151
Paric v John Holland (Constructions) Pty Ltd [1984] 2 NSWLR 505

DECISION: Application for adjustment of property interests refused. Declaration of proportionate beneficial interests in motor vehicle.

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

27 March 2002

5016/99 PENELOPE ANN SULLMAN v MICHAEL JOHN SULLMAN

JUDGMENT

HIS HONOUR:

Nature of the Claims

1 Michael and Penelope Sullman were married, and had four children. They separated, and in 1993 were divorced. At the time of the divorce, Mr Sullman agreed to transfer the family home to Mrs Sullman, and to undertake some obligations for the maintenance of the children.

2 After the divorce, each of them lived in a relationship with a new person. However, neither of those relationships worked out. In November 1995 Mr Sullman came to live, with his former wife and their children, at the family home. He says that after he came back he and Mrs Sullman lived in a de facto relationship.

3 By, at the latest, August 1999 that relationship was over. However, during the period from November 1995 to August 1999 Mr Sullman says that he spent very large sums of money for the benefit of the family. He says that in consequence, his assets were very seriously depleted. He says that at the start of the relationship his financial position was better than that of Mrs Sullman, but that now his financial position is much worse than that of Mrs Sullman. He seeks an order under section 20 of the Property (Relationships) Act 1984 for an adjustment of the interests of Mr and Mrs Sullman in property.

4 Mrs Sullman seeks a declaration that a Toyota Landcruiser motor vehicle, which is registered in Mr Sullman’s name, is her property, and an order that he transfer the vehicle to her.

Background to the Resumption of Cohabitation

5 Mr Sullman was born on 2 March 1944. Mrs Sullman was born on 7 September 1952. They married, in England, in January 1979. They had four children – James, born March 1981, Elizabeth, born March 1983, Christopher, born October 1986, and Edward, born April 1989.

6 At the time of their marriage they were both English citizens and lived in England. Mr Sullman had business interests in the insurance industry.

7 In January 1988 the family moved to Australia. Mr Sullman had obtained employment with Lend Lease, and Lend Lease acted as sponsors of the family for immigration purposes.

8 In about July 1988 Mr Sullman sold his interests in the insurance business in England for around A$6 million. At the time, he told his wife:

“I am going to set up a trust in Guernsey. I am going to call it the Fitzjohn Trust with you and the children as beneficiaries. With the amount of interest it will be earning and my salary we will not even need to touch the capital, we should be earning about $24,000 per week”.

9 In March 1991 Mr and Mrs Sullman purchased, in their joint names, a property at 8 Lane Cove Road Ingleside, a suburb immediately inland from Mona Vale. The vendor of that property was moving to England, so the purchase price was paid in sterling. That purchase price was £800,000, and came from the Guernsey account. At the then rate of exchange, this amounted to approximately $2 million Ex D5, p.237.

10 In the latter part of 1991 (one piece of evidence says September, another November) Mr and Mrs Sullman separated.

11 Miss Elaine Sullivan had been Mr Sullman’s secretary before the Sullman family moved to Australia. On 7 July 1992 Miss Sullivan had a son, Lawrence, of whom Mr Sullman was the father.

12 On 4 March 1993 the Family Court in Sydney made a decree nisi, dissolving the marriage of Mr and Mrs Sullman. On 30 March 1993 the Family Court made orders, by consent, dealing with the property of Mr and Mrs Sullman. So far as is presently relevant, it made orders which had the effect of transferring to Mrs Sullman the Ingleside property, discharged from any mortgage, all furniture furnishings and contents in that home, and a Toyota Sahara motor vehicle registered number PGY192. The orders also made provision for Mrs Sullman to transfer to Mr Sullman all her rights in a property known as 44 Roundwood Park, Harpenden, Hertfordshire England, all her interests in joint bank accounts whether in the United Kingdom, Channel Islands or Australia, and some debentures in Vital Video Company Limited. There was a declaration that Mr Sullman was the sole owner of the Fitzjohn Trust.

13 Maintenance for the children was dealt with by an Agreement made on 30 March 1993. That Agreement was varied on 8 July 1994, Ex D1 by an Agreement which has not since been varied or contractually discharged. (There is a dispute between the parties as to whether the Agreement has been discharged by operation of law, by reason of Mr Sullman having ceased to be a resident of Australia.) Under it, Mr Sullman agreed to provide:

· Periodic support for each child at the rate of $200 per week per child, with that amount being increased proportionately to the increase in the consumer price index from 1 July 1995;

· All private school expenses invoiced by the school “in respect of the education of the aforesaid four children at their present school or at such school agreed between the parties or failing agreement by order of the court”

· Medical insurance cover identical to the benefits afforded under the medical insurance cover which was provided to employees and their families by the Lend Lease Corporation Limited.

14 The Agreement provided, and both Mr and Mrs Sullman understood, that it applied to each child until that child turned 18.

15 There were early difficulties with payment of amounts for child support. In consequence, on 25 August 1993 the Child Support Agency wrote to Mr Sullman’s employer requiring it, under the provisions of the Child Support (Registration and Collection) Act 1988 (Cth), to make deductions from Mr Sullman’s salary at the rate of $3,043.75 per month, and remit them to the Agency. When the new maintenance Agreement was entered on 8 July 1994, it was also registered with the Child Support Agency, and Mr Sullman’s employer made deductions from his salary, at the rate appropriate under the agreement of 8 July 1994, and remitted them to the Agency. The Agency passed them on to Mrs Sullman.

16 In April 1993 Mrs Sullman married Mr Nicholas Meyer.

17 Mr Meyer and his four children moved into the Ingleside home.

18 Following the making of the consent orders concerning property, the relationship between Mr and Mrs Sullman was fairly friendly. They were able to talk together quite amicably about matters such as the children, Mrs Sullman’s financial affairs, and their respective new partners. They met from time to time in connection with Mr Sullman having access to the children, and in connection with activities like the children’s sporting events.

19 In December 1994, Mr and Mrs Sullman had lunch, and attended James’ prize giving at Shore School. At that time, Mr Sullman said to Mrs Sullman “Elaine is convinced I want to marry you again and that’s true. That’s what I want.”. Mrs Sullman told him the idea was ridiculous. Her perception of the meeting is that Mr Sullman was being flirtatious with her.

20 In 1995 Mr and Mrs Sullman continued to meet each other occasionally, when attending sporting matches or school functions connected with the children. Between late 1994 and November 1995 Mr Sullman said to her on a number of occasions words to the effect that he “wanted to be reconciled with” her.

21 In about June of 1995 Mr and Mrs Sullman met at the home of Mrs Donna Tenukest, a friend of Mrs Sullman. It was not a chance meeting. At the time Mrs Tenukest lived at Neutral Bay, Mr Sullman was living at Turramurra, and Mrs Sullman was living at Ingleside. Mrs Tenukest says that the meeting took place after Mr Sullman rang her, asked her to organise a meeting between him and Mrs Sullman, and said, “I would like to work out where the status of Penny is in her relationship to Nicholas and have a chance to talk with her.” That meeting marked the start of Mr and Mrs Sullman meeting each other occasionally for purposes other than the welfare of their children.

22 Prior to August 1995 Mr Sullman had been living in a rented house at North Turramurra with Miss Sullivan and Lawrence. In August 1995 Miss Sullivan and Lawrence left Australia. Mr Sullman paid for their airfares from Australia to England, paid for furniture to be transported to England for them, and provided Miss Sullivan with £21,500 with which to purchase a car. At that time, Mr Sullman also began to pay her maintenance at the rate of £1,000 per month (approximately equivalent to $30,000 per year). His purpose in making this payment was so that Miss Sullivan would not have to work and could stay at home and look after Lawrence until he was old enough to start school.

23 At some stage around August 1995, Mr Sullman told Mrs Sullman that he had split up with Miss Sullivan. He told her that Miss Sullivan hated Australia, was going back to England, and was not coming back. T 222-223

24 Mr and Mrs Sullman met on a couple of occasions at Mr Sullman’s home at Turramurra, after Miss Sullivan and Lawrence had moved out.

25 In either late July, or early August of 1995, Mrs Sullman separated from Mr Meyer. At first this was a separation under one roof. The Ingleside property has a downstairs flat, and Mr Meyer and his children moved to live in that flat.

26 Mr Meyer took the stance that he would not move out until he was paid money. Mrs Sullman swore, in an affidavit on 16 March 2000 for the purpose of some Family Court proceedings, that she said to Mr Sullman “I think that as a result of having to pay Nicholas I will have no alternative but to sell the house and re-establish myself”. Mr Sullman said, “I would not want that to happen. I will want to make sure that the children could stay in the home.” There was a mediation between Mrs Sullman and Mr Meyer, as a result of which Mrs Sullman agreed, on 2 August 1995, to pay Mr Meyer $130,000. She agreed to pay $125,000 on or before 6 November 1995, and $5,000 within seven days thereafter. Mr Meyer agreed to vacate the property upon payment of the $125,000.

27 In August 1995 Mr and Mrs Sullman made a loan application to MLC Building Society Limited (“MLC”). The amount applied for was $260,000. Mr Sullman explained the amount to Mrs Sullman as including not only the $130,000 for the settlement with Mr Meyer, but also about $40,000 to enable Mrs Sullman to have a new car. He also told Mrs Sullman that he would need about $100,000 to finalise his settlement with Miss Sullivan.

28 The Consent Orders of the Family Court made in March 1993 had made provision for title to the Ingleside house to be vested in Mrs Sullman, and Mr Sullman had executed a transfer of his interest in the house around the time those orders were made. However, that transfer had not been registered by the time application was made to MLC for the loan. Mr Sullman gives evidence that in about August 1995 someone dealing with the loan application at MLC, told him that their searches showed that the house was still registered in joint names. Mr Sullman says that, thereupon, he and Mrs Sullman had a discussion,

“MR: We don’t have to change the house back into joint names; your lawyers never effected the transfer to your name back in 1993.

MRS: Are they going to grant the loan?

MR: It looks like it”

29 Mr Sullman says that he relied on that conversation and the home being in joint names to enter the loan with MLC and become a “joint borrower”.

30 I do not accept that Mr Sullman relied on those matters. Prior to the mortgage to MLC being registered, the transfer which Mr Sullman had executed in 1993 was registered, so that the title to the Ingleside property was put in the name of Mrs Sullman alone. The mortgage which MLC received was a mortgage granted by Mrs Sullman alone. The application form to MLC (which, on Mr Sullman’s account, was executed before searches showed that the house was still registered in joint names) showed the application being made by Mr and Mrs Sullman each in the capacity of borrower, and by Mrs Sullman (alone) in the capacity of property owner. Mr Sullman was willing to become a joint borrower with Mrs Sullman before he discovered that title to the house was still in their joint names. As well, the conversation which Mr Sullman deposes to does not show Mrs Sullman assenting to his proposal that the house not be changed back into joint names, so there is an inherent unlikelihood about Mr Sullman relying on the conversation in entering the loan with MLC.

31 The loan application was granted. On 12 October 1995 settlement was effected on the loan of $260,000 which MLC had made to Mr and Mrs Sullman.

32 In October 1995, Lend Lease and Mr Sullman came to an arrangement under which they would part company. Mr Sullman was not longer required to attend work, but his salary continued to be paid until 3 January 1996. He was offered a termination package consisting of:

· one year’s salary and fringe benefit budget;

· the equivalent of one year’s rental subsidy of $800 per week;

· “the pay-out of any unvested ESAP units that are held in trust for you”

33 On 2 November 1995, Mrs Sullman and Mr Meyer entered a deed to give effect to the settlement arrived at the previous August. In accordance with that deed, $130,000 was paid to Mr Meyer from the proceeds of the loan from MLC. The rest of the borrowed money was paid:

· $93,000 to Mr Sullman

· $23,824.25 to Mrs Sullman

· balance in payment of various legal expenses of Mrs Sullman

34 Mrs Sullman paid the amount of $23,824.25, which she received, into an account which she maintained with the National Australia Bank. On 20 December 1995 she withdrew $12,136 from that account, and gave it to Mr Sullman. She wrote on the bank statement, against the entry relating to this withdrawal, a note “for Mike” at the time. Thus, of the total amount borrowed, Mr Sullman received $105,136, and Mrs Sullman received, or had applied in discharge of her obligations, $154,864.

35 The amount of $93,000, which Mr Sullman initially received, (minus a bank fee of $25) was credited on 13 October 1995 to an account he maintained with the Commonwealth Bank at Miller and Berry Streets North Sydney. Immediately before that credit was effected, the account contained $22.14. On 17 October 1995 an amount of $38,800.94 was debited to that account to fund an international money transfer of £18,500 to Miss Sullivan. There was only one credit to the account between the time of payment in of the proceeds of the MLC loan, and payment out of the amount for Miss Sullivan. That credit was an amount of $5,979.91, for Mr Sullman’s pay. It follows that, of the amount sent to Miss Sullivan, $32,798.89 (say $32,800) was the product of the borrowing from MLC.

36 Mr Sullman had been able to pay the balance of the amount he wished to pay to Miss Sullivan by obtaining an overdraft in England. By then, the total amount he wished to pay Miss Sullivan had shrunk to of the order of $80,000. The money he raised on overdraft in England was used to buy Miss Sullivan a new car.

FIRST QUESTION - WAS THERE A DE FACTO RELATIONSHIP?

The Rival Contentions

37 When Mr Meyer was paid his $125,000 he left the Ingleside property. Mr Sullman moved in very soon thereafter, on 7 November 1995. Mr Sullman alleges that that was the commencement of a de facto relationship. He says that he moved his personal belongings into the property, that he and Mrs Sullman slept in the main bedroom together and they had sexual relations, and that they commenced sharing domestic tasks together such as shopping, cooking, cleaning, eating together and enjoying leisure time together and with the children. Mr Sullman says he began to pay for expenses for the family, including Mrs Sullman’s credit card liabilities, that they went out together on outings and holidays, and that they attended social functions together, and some of his work functions. He says that this de facto relationship continued until early August 1999. He accepts that there were periods, between November 1995 and August 1999, when he was not living in the same premises as Mrs Sullman, but says that none of these absences destroyed the existence of a de facto relationship.

38 Mrs Sullman gives a completely different account. She denies that there was ever a de facto relationship between herself and Mr Sullman. She says that the reason why she permitted Mr Sullman to move back was because she was mentally and physically exhausted by the breakdown of her marriage to Mr Meyer. She says that all four of her children were refusing to go on access with Mr Sullman, and that she was concerned by the very poor relationship which existed between Mr Sullman and his children. As well, she says that she hoped that if Mr Sullman was living in the house she would have fewer difficulties with the payment of child support and school fees than she had had in the past. Though she accepts that while at Ingleside, and on various holidays, they slept in the one bed, she denies that there were sexual relations. She says that Mr Sullman did not carry out any domestic tasks, and that eating and having leisure time together with the children was a rarity. She says that going on outings was also a rarity. She says, “All holidays were at the insistence of [Mr Sullman] so that he could see the children and I accompanied them to take care of the children and because the children refused to go unless I went.” She says that they attended social functions rarely, and that she attended a small number of work functions because Mr Sullman asked her to, saying that her going would help him. She paints a picture of him, from the time he first moved in, going to the casino “several times a week from about 8.00pm to 2-8am the next morning”, of him drinking heavily in the evenings, betting by telephone on horses in Australia and the United Kingdom, and spending much of the day asleep. Mr Sullman’s counsel accurately summarises the picture which Mrs Sullman seeks to present of Mr Sullman as being a “boorish drunken wastrel”.

The Legal Test for the Existence of a De Facto Relationship

39 Section 4 of the Property (Relationships) Act 1984 provides as follows:

“(1) For the purposes of this Act, a de facto relationship is 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.

(2) In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as may be relevant in a particular case:

(a) the duration of the relationship,

(b) the nature and extent of common residence,

(c) whether or not a sexual relationship exists,

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

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

(f) the degree of mutual commitment to a shared life,

(g) the care and support of children,

(h) the performance of household duties,

(i) the reputation and public aspects of the relationship.

(3) No finding in respect of any of the matters mentioned in subsection (2) (a) (i), or in respect of any combination of them, is to be regarded as necessary for the existence of a de facto relationship, and a court determining whether such a relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.

(4) Except as provided by section 6, a reference in this Act to a party to a de facto relationship includes a reference to a person who, whether before or after the commencement of this subsection, was a party to such a relationship.”

40 Section 5 has the effect that a “domestic relationship” includes a de facto relationship.

41 Section 6 says:

“(1) This Act (except Part 5) does not apply to or in respect of:

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

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

(2) Without affecting subsection (1), this Act, as amended by the Property (Relationships) Legislation Amendment Act 1999, does not (except for Part 5) apply to or in respect of:

(a) a domestic relationship that ceased before the commencement of this subsection, or

(b) a person in so far as he or she was a party to a relationship referred to in paragraph (a).”

42 The “appointed day” is 1 July 1985. Any de facto relationship which there might have been between Mr and Mrs Sullman arose well after that day. Thus, section 6(1) does not have the effect of stopping the Act from applying to any such de facto relationship.

43 The definition of “de facto relationship” contained in section 4 is a new definition inserted by the Property (Relationships) Legislation Amendment Act 1999. Sub-section 6(2) was also inserted into the Act by the Property (Relationships) Legislation Amendment Act 1999. The new section 4, and sub-section 6(2) each commenced on 28 June 1999.

44 Prior to 28 June 1999 the Property (Relationships) Act 1984 was known as the De Facto Relationships Act 1984. The De Facto Relationships Act 1984 contained the following definitions in section 3:

de facto partner

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

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

de facto relationship

45 These definitions had been construed by Powell J in D v McA (1986) 11 Fam LR 214, at 227, by saying:

“…it seems to me that each case will involve the court making a value judgment having regard to a variety of factors relating to the particular relationship, those factors including, but not being limited to, the following:

(a) the duration of the relationship;

(b) the nature and extent of common residence;

(c) whether or not a sexual relationship existed;

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

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

(f) the procreation of children;

(g) the care and support of children;

(h) the performance of household duties;

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

(j) reputation and “public” aspects of the relationship;”

, In the Marriage of Pavey

In the Marriage of

Re Fagan

Waterford v Director-General of Social Services

Lambe v Director-General of Social Services

Re Semple

Re Tang

Re RC

Re Fergson

Re Tozer

Re Pearce and Director-General of Social Security

In the Marriage of L and L

46 That analysis has been followed many times (eg Roy v Sturgeon (1986) 11 NSWLR 454 at 458-459). It differs from the definition adopted by the 1999 amending Act only in that the element “the procreation of children” is omitted from the 1999 definition (presumably because the 1999 amendments enabled the definition of “de facto relationship” to extend to a homosexual relationship), and Powell J’s phrase “the degree of mutual commitment and mutual support” has been replaced in the 1999 definition by “the degree of mutual commitment to a shared life”. These differences are hardly likely to make a difference to any decision about whether or not Mr and Mrs Sullman lived in a de facto relationship.

47 Nonetheless, it is still necessary to identify the correct legal tests to apply when making a decision about whether or not Mr and Mrs Sullman lived in a de facto relationship. The correct way to make that decision, taking into account the changes which were effected by the 1999 legislation, is, first, to see whether there was a domestic relationship within the terms of the amendments effected in 1999, and then decide whether any such domestic relationship had ceased before 28 June 1999. If there was a domestic relationship (within the meaning of the amendments effected in 1999) but it ceased before 28 June 1999, one would then decide whether there was a “de facto relationship” within the meaning of the Act unaffected by the 1999 amendments. Thus, I shall consider first whether there was a “de facto relationship” within the meaning of the Property (Relationships) Act 1984, including the 1999 amendments. I will consider the various elements of the definition one by one, but in a different order to that in which those elements appear in the definition.

Paragraph (b) - The Nature and Extent of Common Residence

48 In tracing the nature and extent of common residence of Mr and Mrs Sullman, I shall also outline events in the relationship between Mr Sullman and Miss Sullivan. The existence of Miss Sullivan and Lawrence, and Mr Sullman’s ongoing contact with them, are an essential element in evaluating the nature and extent of common residence of Mr and Mrs Sullman, and, ultimately, in deciding whether there was a de facto relationship, and if so, when.

49 When Mr Sullman moved back to the Ingleside property he brought personal possessions, and moved into the main bedroom. He did not retain the North Turramurra property in which he had previously lived. From the beginning of the time he moved back to Ingleside, Mr Sullman did not go out to work.

50 Soon after Christmas 1995 Mr and Mrs Sullman and their children went to the Hyatt Hotel in Coolum, Queensland, for a holiday.

51 By November 1995, Mrs Sullman and her four children had acquired a right of permanent residency in Australia, as a result of her marriage to Mr Meyer. In July of 1998 Mrs Sullman and the four children became Australian citizens. Mr Sullman, however, remained an English citizen. Once his employment with Lend Lease ended, he could no longer stay in Australia on an employer-sponsored visa. This difference in the respective Australian residency rights of Mr and Mrs Sullman cuts two ways as far as the existence of a de facto relationship is concerned. That she, by acquiring a right of permanent residency, and later citizenship, showed an intention to remain in Australia, while he showed no such intention, is one factor which counts against the existence of a de facto relationship. On the other hand, however, Mr Sullman’s precarious immigration status provides a reason for periods of separation between Mr and Mrs Sullman, over the time that Mr Sullman asserts a de facto relationship existed.

52 In early January 1996, within days of his employment ending, Mr Sullman took Elizabeth, his daughter, to the UK, and then to Singapore to visit a friend. While in the UK in January 1996, Mr Sullman applied for a further visa to Australia, and was granted a three-month visitor visa. An officer from the Department of Immigration told him:

“Don’t apply for a further visa once this one has expired because we will not consider a further one for a six month period after you return to England. You need to show that you have re-established yourself in the UK.”

53 Mr Sullman returned to Australia on 22 January 1996. He told Mrs Sullman what the immigration officer had told him. Mr Sullman proposed that Mrs Sullman and the children should join him, on a lengthy world trip. Though Mrs Sullman expressed some misgivings about the children missing so much school, and about the cost, she agreed.

54 On 22 April 1996 Mr Sullman returned to the UK.

55 On 1 July 1996 Mrs Sullman and the two younger children arrived in the UK. In August 1996 James and Elizabeth also arrived in the UK. From July 1996 to October 1996 Mr and Mrs Sullman, and the children who were with them at the time, visited the following places:

· United Kingdom (including visits to relatives and friends in St Albans, Ringwood, Kent, Harpenden and London, a week when Mr Sullman took Christopher, Edward and Lawrence on a camp while Mrs Sullman visited her parents, and visits to York, Chichester London, and a theme park called Alton Towers)

· A one week cruise of the Aegean Sea, visiting Turkey and Greece

· USA (including Los Angeles, Las Vegas, Mammoth Lakes, San Francisco and other destinations)

· A cruise to Alaska from San Francisco

· Canada (including Vancouver, a train trip across the Canadian Rockies to Lake Louise, Banff and Calgary)

· Hawaii

56 While in Hawaii, on 4 October 1996, Mr Sullman obtained an Australian visa which lasted until 19 September 2000. The visa itself is not in evidence, but Mr Sullman says that it was a visitor’s visa, granted on the condition that he leave Australia every six months. A record from the Department of Immigration and Multicultural Affairs tendered in evidence concerning the visa, shows that the Department somehow came to be of the view that Mr Sullman was married.

57 In the course of this trip Mr Sullman bought various presents for Mrs Sullman – a large black pearl which cost more than US $1,000 (which Mr Sullman said was a gift to her from Elizabeth) and a leather coat.

58 In October 1996 Mrs Sullman and the children returned to Australia. Mr Sullman went to the UK. Miss Sullivan and Lawrence had been living in an apartment in Bransgore House, Bransgore, Hampshire, but as Lawrence became older that apartment was no longer suitable for them. While in the UK in November 1996 Mr Sullman finalised the purchase for them of a house called ‘Robin Hill’, Melchet Park, Sherfield English, Romsey. The purchase price of that property was around £200,000. Mr Sullman paid all of it, and took title in his own name. Mr Sullman and Miss Sullivan executed a lease on 14 November 1996, which gave Miss Sullivan a tenancy in the property for three years from 1 November 1996. The lease made provision for Miss Sullivan to pay a rent of £7 per month, pay outgoings, and repair the interior. The rent was never actually paid.

59 Mr Sullman explained the purchase of Robin Hill to Mrs Sullman as follows:

“MR: The flat is no longer suitable for Lawrence. He needs a garden to play in. I’m going to look for another house for her to live in. She is being a pain in the neck and wants to have a property similar to you.

MRS: If you want to do that with her where is the money coming from to purchase this property?

MR: This is an asset Penny for us in the future.

MRS: What’s Elaine’s interest in the property?

MR: Nothing. I can kick her out at any time.”

60 Mr Sullman did not tell Mrs Sullman about the lease that had been entered. This conversation (which was deposed to by Mrs Sullman) is an example of the two of them planning for a future together.

61 In December 1996 Miss Sullivan and Lawrence came to Australia. She flew at her own cost, and stayed with friends while in Sydney. The only occasions when Mr Sullman saw her on this visit was a day when she brought Lawrence to Mona Vale just before Christmas to spend the day with Christopher and Edward, and another occasion just after Christmas 1996 when Mr Sullman collected Lawrence from the place where Miss Sullivan was staying, took Lawrence Christopher and Edward on a day’s outing, and returned Lawrence at the end of the day.

62 At some time in 1996 (the evidence does not disclose when, or for how long) Mr Sullman took Lawrence on a holiday to Euro Disney in Paris. Miss Sullivan also went on that holiday.

63 In January 1997, the death occurred of the wife of Mr Sullman’s older brother, Brian. Mr and Mrs Sullman went to the UK for the funeral, taking eight days for the trip, and returning on 19 January. No children travelled with them.

64 On 10 July 1997, Mr Sullman returned to the United Kingdom. The conditions of his visitor’s visa required him to leave Australia around this time. He spent time in July and the first half of August of 1997 seeking employment in the UK and also attended interviews in Germany and Sweden.

65 On 13 August 1997, in Southampton, Mr Sullman purchased a Llalique statue for £559, and some jewellery (a necklet, bracelet and earrings) for £1,085. Mr Sullman says that each of these was a birthday present for Lawrence to give to his mother. (Lawrence at this time had only recently had his fifth birthday.) Mrs Sullman was not aware of these purchases at the time.

66 After returning to the UK he told Mrs Sullman (still in Australia) that he was going to Las Vegas. He told Mrs Sullman:

“I have had a letter from the MGM Grand in Las Vegas offering me free accommodation, as long as I do lots of gambling there. I am very tired and need to rest so I think I will take them up on it.”

67 He omitted to mention that Miss Sullivan and Lawrence were going with him, and that Las Vegas was not the only United States destination. The hotel bill for his stay at the MGM Grand Hotel in Las Vegas shows that he arrived on 31 August and departed on 6 September, had one room, and was charged only for tips, taxes, merchandise, movies and ‘phone calls – meals and accommodation, were not charged for. The room rate (shown on a subheading on the bill, but not charged for) was US $325 per night. From the fact that tips connected with meals, but not the meals themselves, appear on the hotel bill I would infer that the meals were complimentary.

68 On 15 September 1997 Mr Sullman returned to Australia. On his return, he said to Mrs Sullman, “The only chance I have of getting a job is to go back to England to live”. The evidence does not enable me to make a finding about what response Mrs Sullman gave to this piece of information.

69 Soon after that, Mr Sullman arranged for a UK firm to prepare a mail-out to around 100 employment agencies and other employment prospects. That mail-out was sent on 7 October 1997. Mr Sullman had previously made efforts to get a job in Australia. He had sent his curriculum vitae to employment agencies, and had also written to executives at AMP, Zurich, Westpac, Associated Planners, Norwich, and IFMA. However by October 1997 the focus of Mr Sullman’s efforts to get a job was the UK.

70 In the first part of November 1997 - that is, after spending six or seven weeks in Australia, and well before his visa required him to leave – Mr Sullman returned to the UK. The evidence does not accurately fix his day of departure. Mr Sullman describes it as “at the beginning of November 1997” Affidavit 21 November 2000, para 39, and “in November 1997” Affidavit 21 November 2001, para 46.4. Mrs Sullman describes it as “in November 1997” Affidavit 14 December 1999, para 20. When Mr Sullman, in cross-examination, had the topic of an event which occurred very soon before his departure introduced to him, it was by the following:

“early November 1997”

71 On 11 November 1997 Mrs Sullman wrote a letter to Mr Parsons, of Pittwater House School, seeking scholarships for her two younger boys. In the course of that letter she said, of Mr Sullman,

“He has met these payments up to now but having unsuccessfully tried to obtain a new employer sponsor he has had to leave Australia and return to the UK as his visa expired”. Ex CC21

72 I regard this as solid evidence that Mr Sullman had left prior to 11 November 1997.

73 The account statement for Mr Sullman’s American Express card Ex CC45, page 283 shows a debit at Tony D’Amici’s restaurant in Mona Vale attributed to 11 November 1997, followed by a debit in Bahrain attributed to 13 November. The form of the American Express account differentiated between amounts which had been charged using a card issued in the name of Mr Sullman, and amounts which had been charged using a card issued in the name of Mrs Sullman. The entries I have just referred to are in the portion of the account which relates to debits to Mr Sullman’s card. However, the evidence does not tell me whether the date attributed to a particular debit is the date when that debit was actually incurred, or the date (possibly later) when that debit was posted to the account. I would not regard these debits to the American Express account as providing a ground for doubting that Mr Sullman had already left by 11 November 1997.

74 Mr Sullman has not tendered any plane tickets or boarding passes, or his passport, to establish with precision the date on which he departed.

75 When Mr Sullman had moved into the Ingleside property in November 1995, he had brought with him a number of suitcases, two double beds and two TVs. Until November 1997 he always left clothing at the property while he was away. When he left in November 1997, he took most of his clothes with him. The beds and the TVs remained at the property.

76 Mr Michael Bailey, a work colleague of Mr Sullman from Lend Lease, gives evidence that “in November 1997” Mr Sullman told him that he had run out of money and was therefore going to England to see if he could get a job there, and that “just prior to going” Mr Bailey went to dinner at the Ingleside home, and a conversation to the following effect took place:

MR BAILEY: “Are you going to England Penny?”

MRS SULLMAN: “Once Mike has established himself over there and got a job I will go over there to live.”

MR BAILEY: “Do the children want to go?”

MRS SULLMAN: “James and Elizabeth aren’t very keen but they’ll do what they’re told.”

MR SULLMAN: “I’ve spoken to James and he refuses to come. I’ve explained that because of his visa he’d have no choice but he says that the immigration department won’t find him.”

77 Mrs Sullman denied this conversation in her affidavit. Though I have some reservations about Mr Bailey’s affidavit evidence, because the affidavit was composed in the course of perhaps two occasions when Mr Bailey and Mr Sullman met for dinner, and Mr Bailey accepts that Mr Sullman assisted him to formulate the text of the affidavit “a little” T 166 Mr Bailey specifically denied that Mr Sullman had suggested to him the language of the conversation I have just quoted T 167. I accept that a conversation occurred along the lines that Mr Bailey deposed to. Concerning a different conversation in his affidavit, Mr Bailey acknowledged that Mr Sullman had helped him to fix the date T.168. I am not satisfied that it was “in November 1997” that Mr Sullman told him that he had run out of money and was going back to England, or that it was “just prior to going” that the conversation occurred.

78 On the morning of his departure for the UK in November 1997 Mr Sullman met Mrs Tenukest at a coffee shop in Neutral Bay Junction. Mrs Tenukest had rung him to request the meeting. Mrs Sullman had told Mrs Tenukest that Mr Sullman was returning to England to look for work, and had expressed concern to Mrs Tenukest that he had made no financial arrangements for her and the children. Without any specific request from Mrs Sullman, Mrs Tenukest took it upon herself to arrange the meeting with Mr Sullman. Mr Sullman gave evidence:

79 As well, Mrs Tenukest asked Mr Sullman what he had done about making financial arrangements for Mrs Sullman and the children. Mr Sullman told her that Mrs Sullman had the use of a credit card, but that he had no immediate source of income, so he could not organise anything.

80 Mrs Tenukest also gives evidence that Mr Sullman said, at that meeting, that he “had always maintained his relationship with Elaine”, that Elaine was his “life partner and he had no intentions of resuming his relationship with Penny. He had never given her any reason to think that he was resuming his relationship with her.” Affidavit Tenukest, para 12 In cross-examination Mrs Tenukest gave evidence as follows:

“A. I said words to Mike to the effect that "I'm just - I feel that you're abandoning Penny and the children and that you have never been honest in your commitment back, you know, into the family or the relationship.” T.392

Q. Well, ma'am, he had a relationship with Miss Sullivan, didn't he, because they had a child?

OBJECTION.

81 In my view it is probable that a conversation along the lines to which Mrs Tenukest deposes, took place. Mrs Tenukest strikes me as a person who would not hesitate to have the sort of blunt and direct conversation that she deposes to, if she thought her friend was about to be abandoned. Her evidence needs to be considered with some care, given that she had cast herself into the role of Mrs Sullman’s advocate and protector in this meeting, and also in connection with some events in July 1999 which I shall mention later. However, I do not regard that as a reason for rejecting her evidence. The question of whether Mr Sullman intended to resume a relationship with Miss Sullivan, when he returned to England, was one which would readily occur to anyone who was familiar with the family history, as Mrs Tenukest was. Mr Sullman accepts that the topic of his intentions concerning Miss Sullivan was raised in the discussion. He gives a very different account of the conversation to that which Mrs Tenukest gives Affidavit 21.11.01, para 46.4. His version includes his responding to Mrs Tenukest’s enquiry about whether Mrs Sullman had enough money, by saying that she had three credit cards she could use. I do not accept that Mrs Sullman in fact had three credit cards that she could use. Thus, either he was making an inaccurate statement to Mrs Tenukest in this respect, or his evidence on this topic is incorrect. Mr Sullman’s account also attributed to Mrs Tenukest an offer to lend Mr Sullman some money. It strikes me as improbable that Mrs Tenukest made any such offer. These matters, together with my general view that Mr Sullman is not completely satisfactory as a witness, lead me to prefer Mrs Tenukest’s account of the conversation.

82 In late November or early December 1997 Mrs Sullman decided to sell the Ingleside property. In May 1997 Mr Sullman had established a periodical debit authority, which enabled $2,000 to be debited to Mr and Mrs Sullman’s joint account with the ANZ Bank at the end of each month, and paid to the mortgagee of the Ingleside property. The payment due at the end of October 1997 was dishonoured. The payment due at the end of November 1997 was likewise dishonoured. The NRMA Building Society (which had taken over the MLC mortgage business) threatened to take enforcement action. Mrs Sullman applied to the NRMA Building Society for a bridging loan. Eventually the NRMA Building Society approved a bridging loan of $30,000, on condition that the arrears were paid from the proceeds of sale. This bridging loan was drawn down in March 1998. By then, the regular payments of the loan which were due at the end of December 1997 and January 1998, had also been dishonoured. Mrs Sullman did not consult Mr Sullman about selling the house, or about taking out the second loan. Neither did she inform him what she had done.

83 When the bridging loan was drawn down, the money was disbursed as follows:

84 In either December 1997 or very early January 1998 a deed of declaration of trust and indemnity was entered into between Mr Sullman and Miss Sullivan relating to the Robin Hill property. It acknowledged that Miss Sullivan had made a contribution towards the purchase price of the property of £50,000, and that the beneficial interest in the property was held as to 25% for Miss Sullivan, and as to 75% for Mr Sullman. Miss Sullivan was to have the right to decide whether the property should be sold while the tenancy agreement was still on foot, and Mr Sullman was to have the right to decide whether the property should be sold once the tenancy agreement had expired. The £50,000 that the deed talked of was paid by Miss Sullivan making available to Mr Sullman £50,000 from the proceeds of sale of Bransgore House. Mr Sullman organised the sale of the Bransgore property after he returned to the UK in November 1997. The evidence is silent about what use had been made of the Bransgore property between the time that the Robin Hill was purchased as a home for Miss Sullivan and Lawrence in November 1996, and the time that the Bransgore property was sold a little over a year later. It is silent about whether anyone obtained any financial benefit from the Bransgore property during that time.

85 Mr Sullman spent Christmas and New Year of 1997 with Miss Sullivan and Lawrence Affidavit 21.11.01, para 3. When an English solicitor wrote to him on 7 January 1998, her letter was addressed to him at the Robin Hill property. After some date in January 1998, Mr Sullman lived with his brother Brian, at 44 Roundwood Park, Harpenden. (This is a property which Mr Sullman had bought for his brother and sister-in-law to live in.)

86 In December 1997 Mr Sullman telephoned Mrs Sullman and said, “Please stop spending so much as I cannot afford it”. She replied, “I have no money to pay for Christmas”. Following that conversation, Mr Sullman sent Mrs Sullman an amount of $1,261 in December 1997, and a further amount of $2529.50 in January 1998.

87 Soon after 8 January 1998, Mr Sullman received a copy of an American Express statement for December 1997, relating to an account that Mrs Sullman was authorised to debit. He saw that an amount of $17,800 had been debited, dated 8 December 1997, by Pittwater House. Ex CC45, page 286 Mrs Sullman had debited to the American Express Card, the school fees for Christopher and Edward at Pittwater House, for the whole of 1998, before the school had issued an invoice in relation to those fees. Mr Sullman telephoned Mrs Sullman. His account of the conversation which ensued is as follows:

“MR: What the hell are you up to?

MRS: I have paid a year in advance for the children’s school fees.

MR: I thought you and the children were coming over to the UK once I had organised a job and somewhere to live.

MRS: You thought wrong, didn’t you.

MR: “I have been told by a friend that you have put the house on the market – is this true?

MRS: Yes.

MR: Why didn’t you tell me?

MRS: It is my property – I will do what I like with it.

MR: It’s our joint property.

MRS: No it’s not. I transferred it into my name in accordance with the Court Orders.

MR: I cannot trust you anymore. I will have to cancel your AMEX card.”

88 Soon after that conversation, Mr Sullman cancelled the additional cardholder facility which Mrs Sullman had on his American Express account. He had obtained, by 20 January 1998, a “temporary credit” from American Express for the entire amount debited to the card for the school fees Ex D5, page 139. Mr Sullman also gives evidence that this was the first time he learned that the home had been transferred to the cross-defendant’s sole name.

89 Mrs Sullman denies that account of the conversation. Her account is:

“MR: What the hell are you up to?

MRS: I have paid the school fees.

MR: What you have done is fraudulent. You could go to jail for that and I‘d like to see you in jail. I have phoned American Express and the school. You have now got to write to the school and tell them you have done this in error otherwise you will end up in jail. I have already cancelled your American Express Card.”

“The Cross-Claimant dictated a letter to me which I sent to Pittwater House School to the effect that I had made an error and requesting that they make a refund to American Express. To my knowledge most of the fees were refunded to the Cross-Claimant’s American Express card except for the school fees that were due.

sic

90 (Mrs Sullman’s reference to Mr Sullman knowing that she would not return to the UK is a reference to some evidence which she gave about her response to Mr Sullman informing her, on 15 September 1997 that the only chance he had of getting a job was to go back to England to live. She says that at that time she replied to him saying, “The children and I won’t be going. Our home is here.” There is no corroboration of this evidence. I am not sufficiently confident on the accuracy of Mrs Sullman’s recollection to hold that it is more likely than not that this particular piece of evidence of hers, concerning 15 September, is correct.)

91 Something of the flavour of how relations stood between Mr and Mrs Sullman in January 1998 can be gained from contemporaneous file notes made by Mrs BA Keating, an officer of Pittwater House School, of telephone conversations on 12 January 1998. The first file note relates to a call that Mr Sullman made to the School. Mr Sullman gave Mrs Keating his contact number in the United Kingdom. It is the telephone number of the Robin Hill property. The file note continues:

“Sullman, Mr (tel in 11am)
- he has rec’d his statement with $17800 – charged for 1998 and he is disputing the charge.
- he said Mrs Sullman was told not to use the card and it was cx in UK on 8/12/97.
- in order to recover the money Amex have advised him to request a credit from us as the fees are not actually due yet. If we refuse they will involve the police and act against Mrs Sullman for fraud.
- he also stated that if the children stayed at TPHS he would be responsible for the fees as they are due each term but he didn’t have $17800 at the moment
- if TPHS refuses to give the credit he threatened to withdraw the children & therefore no fees would be due and we would have to refund the money.

92 Next, Mrs Keating telephoned Mrs Sullman:

“BAK – explained Mr Sullman wanted the money recredited
- that he said she had approval to be using the card etc & that Amex & he would send the police regarding the fraud if the school did not recredit.

Mrs Sullman – adamant the card was not cx
- not to give the credit back
- he could send the police if he wanted to
- he left her penniless & was responsible for the fees etc & Blaa[?]
- she was happy to contact him however she did not have a number

93 Mrs Keating then telephoned Mr Sullman. The note is as follows:

“BAK – contacted Mr Sullman explained I had been advised to speak with Mrs Sullman and had done so – and that she did not want the credit put through etc.
- also explained the school acted in good faith and had done nothing wrong & were not to know their marital problems
- said we would not be able to put the credit through while there was contradicting advice coming from each parent. Suggested he put his request in writing or contact Mrs S to come to an agreement.
- suggest if they agreed together to a credit TPHS would probably have no problems but the decision was still not mine.

94 A little over an hour later, Mrs Sullman telephoned the school:

“Mrs Sullman – phoned to say she would have to ask to put through a credit for the fees
- she had discussed the situation with Mr S and he is happy to pay fees each term
- she is apparently forced into this situation by Mr S who will withdraw the children if she doesn’t agree.

95 Mrs Sullman then, about an hour later, faxed a letter to Mrs Keating saying:

“We are reviewing our financial position and are forced to authorise the withdraw of the Amex payout and will pay the school fees on a term to term basis.”

96 Pittwater House refunded $12,717 to American Express, which represents the cost of school fees for three terms. This credit appeared on Mr Sullman’s American Express Statement in February 1998 Ex D5, page 140, and the temporary credit for the entire amount of fees charged to the American Express account was removed.

97 Mr Lethbridge SC, counsel for Mr Sullman, urges that I not make too much of this incident, saying that it is common enough for parties in a relationship to have arguments, sometimes serious arguments, and common enough for those arguments to be about money. It seems to me that this incident involves more than a serious argument about money. For Mrs Sullman to have taken the step, at all, of charging a whole year’s school fees in advance to the credit card, when they had not been invoiced by the school, shows the depth of her uncertainty about whether Mr Sullman would continue to pay those fees periodically. For her to tell Mrs Keating that she did not know where to contact Mr Sullman by telephone (at a time when Mr Sullman was readily contactable at the telephone number of the Robin Hill property), and that Mrs Keating needed to act as an intermediary to relay messages from Mrs Sullman to Mr Sullman, is consistent with there then being a rift between them. For Mr Sullman to tell the administration of the school his children attended that Mrs Sullman had engaged in fraud, and that he would call in the police to deal with that fraud if the school did not refund the money, is serious indeed. If Mr Sullman was correct in telling Mrs Keating that Mrs Sullman was told not to use the card, and it was cx (which I take to mean “cancelled”) in UK on 8 December 1997, that means he had left Mrs Sullman with no available source of funds whatsoever. However, I find that this statement, which he made to Mrs Keating, was not correct, as the American Express Card had not been cancelled. That he misrepresented the truth to Pittwater House in this respect is detrimental to his credit.

98 Christopher and Edward continued as students at Pittwater House School during 1998. Their fees for terms 2, 3 and 4 of 1998 were not paid. The gist of Mr Sullman’s evidence about payment of Pittwater House fees thereafter is that he thought the boys had scholarships from Pittwater House which paid the fees. Mrs Sullman had written a letter on 11 November 1997 to a school officer, the text of which was either composed by, or approved by, Mr Sullman, requesting scholarships. He says that when a credit for the bulk of the amount paid for fees appeared on his American Express statement, he assumed that scholarships must have been granted, and that it was only at the end of 1998 that he discovered that no scholarships had been granted. I reject this explanation from Mr Sullman for non-payment of the fees. At one stage in his communications with the school on 12 January 1998 Mr Sullman had talked of withdrawing the children from the school as he could not pay the fees, and had referred to the earlier request made for scholarships. However, the last communication of the day was the letter which Mrs Sullman wrote, at Mr Sullman’s dictation, saying that the fees would be paid on a term-to-term basis. That letter made no mention of the boys needing scholarships if they were to stay at the school.

99 Mrs Sullman submitted the house for auction in March 1998, but it was not sold. On the day the property was passed in at the auction, Mr Sullman telephoned Mrs Sullman and had a conversation:

“MR: I have had my spies out. Did the property sell?

MRS: No”

100 The highest offer received for the property on that day was $1,825,000.

101 By March 1998, Mr Sullman had formed the view that there was a possibility that he would be able to set up his own business in the United Kingdom. He says that in March 1998 he telephoned Mrs Sullman and said:

“There is a possibility I can set up my own business. Why don’t we meet halfway for a holiday to celebrate and to sort out what we are going to do. I want to see the children, and I want you all to be able to stay living in the home.”

102 In April 1998 Mr Sullman, Mrs Sullman, Christopher and Edward holidayed in Thailand for two weeks. Mr Sullman paid for everyone’s airfares and accommodation. There is a photograph in evidence, taken on that Thailand trip, which shows Mr and Mrs Sullman posing for the camera, with Mr Sullman having his arm around Mrs Sullman’s shoulder. After that holiday, they returned to Sydney. Mr Sullman stayed at the Ingleside house for a week or two before returning to the UK on 9 May 1998.

103 Mrs Sullman told Mrs Tenukest, in advance, that she was going to go with the two boys to Thailand. Mrs Tenukest was asked:

104 Mr Sullman’s account of what happened thereafter is:

“While in the UK I signed a contract in relation to the setting up of my business. I returned to Sydney in August 1998 and visited the family from 18 August 1998 to 1 September 1998.”

105 Mrs Sullman gives evidence that she has no recollection of Mr Sullman visiting from 18 August 1998 to 1 September 1998. In an affidavit in reply, Mr Sullman did not seek to provide any corroborating detail in relation to any such visit. However, a Mrs Lindesay gives evidence that she recollects Mr Sullman was living at the property when she moved into the downstairs flat as a tenant in August 1998, and that he moved out a few days after she arrived. In these circumstances I accept Mr Sullman’s evidence that there was a visit from 18 August 1998 to 1 September 1998. However, it is of some significance that he described his stay as having “visited the family”, rather than “stayed at home”.

106 Mrs Lindesay continued to occupy the downstairs flat for 13 months from August 1998.

107 In October 1998 Mr Sullman paid for Mrs Sullman, James, James’ girlfriend, Christopher and Edward to stay with him at the Sea World Resort in Surfers Paradise for one or two weeks. After that holiday Mr Sullman returned with the family to the Ingleside property for a few days, then returned to England.

108 In November 1998 Miss Sullivan informed Mr Sullman that if they were to be married, Lawrence’s birth certificate could be changed. Lawrence’s birth certificate, as it then stood, showed Lawrence’s name as “Lawrence Sullman”, but showed his parents with surnames “Sullman” and “Sullivan” respectively. Thus it was apparent on the face of the birth certificate that he was illegitimate. Miss Sullivan had ascertained that, if the parents of an illegitimate child were to marry, that child would thereby be legitimated, and the registry authority in England would issue a birth certificate which showed the mother’s surname as being her (later acquired) married name. Mr Sullman agreed to the proposal. Miss Sullivan then contacted a travel holiday agent and booked a “marriage package” to Sri Lanka. Mr Sullman paid for the trip on his credit card.

109 On 2 January 1999 Mr Sullman and Miss Sullivan were married in Sri Lanka. They returned to the UK three days later.

110 In April 1999 Mr Sullman went to Melbourne for the purpose of giving evidence in a court case connected with his former employment. His travel expenses were met by Lend Lease. Mrs Sullman, Christopher and Edward went to Melbourne (at Mr Sullman’s expense) to meet him. They stayed a week to ten days. The case settled, Mr Sullman was not required to give evidence, and they all returned to Sydney, where Mr Sullman stayed a few days at Ingleside. Part of Mr Sullman’s purpose in coming to Sydney on this occasion was for the trial of a criminal charge which had been brought against him, and which he successfully defended – see paragraph 295 below.

111 During the time Mr Sullman was in Sydney in April 1999, he accidentally left his mobile phone in Mrs Sullman’s car. While Mrs Sullman was out driving, a couple of days after they returned from Melbourne, she answered a call on the mobile phone. It was Miss Sullivan, who said she wanted to speak to her husband. She explained that they had married in Sri Lanka in January. This was news to Mrs Sullman.

112 When Mrs Sullman let Mr Sullman know that she had heard about the marriage, he immediately gave an explanation, that the marriage was a marriage of convenience, connected with changing Lawrence’s birth certificate. Mr Sullman returned to the UK before the end of April 1999, one or two days after Mrs Sullman had found out about the marriage.

113 (The evidence included a certified copy of Lawrence’s original birth certificate and of the amended birth certificate. The amended birth certificate does indeed show Lawrence as having been born to parents each with the surname Sullman. It also shows that Mr Sullman made the declaration which enabled the amended birth certificate to be issued on 22 November 2000. That is one year and ten months after the marriage. It is also one day after the date when Mr Sullman swore his first affidavit in these proceedings, in which he gave evidence that the reason why he and Miss Sullivan married, was to obtain a change in Lawrence’s birth certificate. Obtaining a change in Lawrence’s birth certificate was not, in Mr Sullman’s mind, a matter of pressing importance at the time he married Miss Sullivan.)

114 In July 1999 Mr Sullman telephoned Mrs Sullman and asked her to meet him in Queensland with the children, as he had to come to Australia for some business. Mrs Sullman, Christopher and Edward then flew to Queensland, where they spent about a week at Hope Island with Mr Sullman and Mr Tony Skelton. Mr Skelton is an English friend of Mr Sullman, and is Christopher’s godfather. Mr Sullman and Mr Skelton had been working together on the new business venture. Mrs Sullman paid for the airfares for herself and the children by using frequent flyer points. Both Mr Sullman, and Mr Skelton, came to Sydney and stayed at the Ingleside house for a few days, before Mr Sullman and Mr Skelton returned to England.

115 For some months before this, Mrs Sullman had been having difficulties with NRMA about non-payment of both loans which had been taken out on the property. She had told Mr Sullman about these difficulties. While in Queensland, Mr Sullman made arrangements for himself and Mrs Sullman to meet the chairman of a software company called IDT Limited that Mr Sullman was dealing with in relation to the business which Mr Sullman was then trying to start. That chairman also owned a wholesale mortgage company, called Flexi-Mortgage, in Sydney. Mr and Mrs Sullman had dinner with the chairman, who told them that he would arrange for them to meet his mortgage manager in Sydney.

116 When they got back to Sydney Mr Sullman told Mrs Sullman that he thought they should borrow $600,000, on the security of the Ingleside property. He explained that amount as being $300,000 for NRMA, $50,000 for Mrs Sullman to live off, $25,000 to pay for tickets for the family for the Olympic Games, and the rest for Mr Sullman’s new business.

117 Mr and Mrs Sullman went to see an officer of Flexi Mortgage in Sydney. Mr Sullman told that mortgage manager, in Mrs Sullman’s presence, that they wished to apply for a loan of $600,000. An application form was filled out, and they both signed it.

118 The next morning Mrs Sullman drove Mr Sullman and Mr Skelton to the airport, and they left for England. Mr Skelton gives evidence, on which he was not cross-examined, that at the airport Mrs Sullman gave Mr Sullman an “enormous hug” and said:

“Don’t forget to ring me as soon as you get to Heathrow. I don’t want the responsibility of sending off the application for the Olympic tickets without talking to you following the survey.”

119 Mrs Sullman told her friend, Donna Tenukest, about the application to borrow $600,000. Mrs Tenukest wrote a letter to the mortgage company on 21 July 1999. The letter stated that a copy of it was being sent to ASIC, to Mrs Sullman, to Mr Tony Skelton, to Mr Peter O’Brien (a friend of, and financial adviser to Mrs Sullman), to Mr Brian Sullman, to Mr Ian Allen, (a friend of Mr and Mrs Sullman) and to IDT Pty Ltd (a company with which Mr Sullman was dealing in connection with his proposed new business). In fact not all, and perhaps none, of these people and organisations were sent a copy. The letter stated that Mrs Tenukest was legally qualified, that the proposed mortgage was not of financial benefit to Mrs Sullman because she did not have any income and could not service the loan, that she was no longer married to Mr Sullman, and that Mr Sullman was no longer a resident of Australia. She asserted that for Flexi Mortgage to make the advance to Mrs Sullman would be unconscionable, that the arrangement would be entered into by Mrs Sullman under duress, and that it would be an unfair bargain. She stated that the letter should be taken as giving Flexi Mortgage constructive notice of the circumstances of Mrs Sullman, and that it would be used in her defence if the advance were to be made, and any attempt was made following a default, to seek possession of the property.

120 Unsurprisingly, Flexi Mortgage was not prepared to proceed. Mr Sullman telephoned Mrs Sullman and attempted to persuade her to have Mrs Tenukest withdraw the letter. There was more than one such telephone conversation. By, at the latest, early August 1999 it was clear to both of them that the letter would not be withdrawn. Further, after talking it over with Mrs Tenukest, Mrs Sullman came to appreciate that mortgaging her house in the way that Mr Sullman wished, was not a good idea. She told Mr Sullman that she would not proceed with the mortgage application. Mr Sullman asserts that it was at this time that the relationship came to an end.

121 The evidence includes a letter, in Mrs Sullman’s handwriting, dated 28 July 1999. It says:

“Dear Donna,

I have today received a copy of the letter sent to Mr Johnson of Flexi-Mortgage Pty Ltd. I had no idea that you had written this to him and you did not have my permission to do so, nor to send copies to other people particularly when you had not shown me a copy of this.

It is incorrect of you to state that you are my personal adviser. On the subject of my original mortgage I approached Mike and asked him if he would be willing to repay a mortgage for me as I had no way of paying off the personal loan that you were in fact involved in obtaining for me from the NRMA which I am unable to repay without selling the house.

I also need part of the monies to pay off other debts I have and to finance the repayment of the monies I have borrowed for my application of Olympic tickets, which I did not submit until the last day as I was awaiting to hear from Mr Johnson that the mortgage had been approved.

I am also concerned about other matters you have brought to my attention, both Mike and I are separated from our spouses and already have a de facto relationship and plan to re-marry once our divorces are finalised.

Without this loan for which he and I have applied I will have no option but to sell the property which will produce an unstable environment for the children, especially for my daughter who is about to start her HSC exams and is studying hard at the moment. Mike repaying the mortgage may well be an unfair bargain as he takes on the liability to repay the mortgage and much of the mortgage is being utilised for my and the children’s benefit. But he has agreed to do so because he wants to maintain the family stability as much as possible while he is working in the UK and we remain in Australia.

Mike has been paying the mortgage to the NRMA which is in our joint names, which was used mainly to pay monies to Nicholas Meyer when we separated.

I will now have to seek legal advice to attempt to overcome the problems caused by the letter you have sent. I may now have to transfer ownership of the property for the mortgage to proceed.

In the future please do not send letters on my behalf without my knowledge or discuss my affairs without my knowledge.

Penny

122 In an affidavit which she swore on 7 June 2001, Mrs Sullman said that Mr Sullman had faxed to her a draft of a letter, from her to Mrs Tenukest, and told her to write it out, fax it to Mrs Tenukest and get her to retract her letter. Mrs Sullman said that she refused to do so, and threw his fax in the bin. That evidence of Mrs Sullman is manifestly incorrect, as the letter I have just quoted exists in Mrs Sullman’s handwriting. Not only does that letter exist, but a copy of it was tendered from files which Flexi-Mortgage produced on subpoena to the Court.

123 Mr Sullman responded to the evidence which I have just mentioned by denying that he had faxed her a letter. He said:

“I will put it into my own words and send it to Donna”

124 He exhibited to his affidavit the letter I have just quoted, in Mrs Sullman’s handwriting. Affidavit 21.11.01, para 73

125 Mrs Sullman replied to that allegation saying:

“To the best of my recollection the cross-claimant faxed the draft letter to me and as requested by him I re-wrote the letter and faxed it back to him. To the best of my knowledge I did not fax or give the letter to anyone else. Later I screwed up both the cross-claimants’ fax and my letter and threw them in the bin.” Affidavit 14.12.01, para 46

126 In cross-examination Mrs Sullman gave yet another version T.301ff, namely that the words of the letter were dictated to her over the phone when Mr Sullman rang in the early hours of the morning, and that Mr Sullman asked her to fax what she had written back to him so that he could read it himself, which she did.

127 I accept that, whatever the precise mode might have been by which Mr Sullman communicated with Mrs Sullman, the wording of the letter is Mr Sullman’s. Further, whether the actual text of the letter was communicated to Mrs Sullman over the phone or by fax, Mr Sullman was telephoning Mrs Sullman urging her to write it in her own hand, and send it to Mrs Tenukest. Mrs Sullman gave evidence,

128 The copy of the letter which was produced from the files of Flexi-Mortgage bears a fax header which shows it as coming from “Sullman”, at the telephone number of the Ingleside house. The fax header also bears the date “Feb 20 2000”.

129 Mrs Sullman gave evidence about this date entry,

130 She went on to deny that she faxed the letter to Mr Johnson, of Flexi-Mortgage.

131 I do not understand this evidence of Mrs Sullman as involving a concession that, on 28 July 1999, her fax machine would have transmitted an incorrect date to the recipient of a document sent from it. However, even if Mrs Sullman had, on, or soon after 28 July 1999 sent a copy of that letter to Flex-Mortgage, I would not regard it as involving her in making any admission in terms of its contents. Mr Sullman was desperate to obtain the loan from Flexi-Mortgage. Mrs Sullman telephoned Mrs Tenukest, told her that Mr Sullman had been applying a lot of pressure for her to get Mrs Tenukest to retract the letter, and asked what she should do. If she was prepared to go as far as this with Mrs Tenukest, it is possible that she might have been prepared to send a copy of the letter which Mr Sullman composed to Flexi-Mortgage. However, I do not find it is more likely than not that she sent the letter to Flexi-Mortgage on or about 28 July 1999. Even if she had done so, I would regard the contents of the letter as being the product of pressure from Mr Sullman, not an admission by Mrs Sullman.

132 The periods when Mr and Mrs Sullman were living in the same premises can be summarised as follows:

Begin End Place Approx weeks until cohabitation next resumed

Early Nov ‘95 Early Jan ‘96 Ingleside and Coolum 2 -3

22 Jan ‘96 22 Apr ‘96 Ingleside 10

1 Jul ‘96 Late Oct ‘96 Overseas trip 2 –3

13 Nov ‘96 10 Jul ‘97 Ingleside, and Jan ’97 visit to England (8 days) 8 – 9

15 Sept ‘97 Eary Nov ‘97 Ingleside 20

April ‘98 9 May ‘98 Thailand (2 weeks) and Ingleside (a week or two) 12 -13

18 Aug ‘98 1 Sept ‘98 Ingleside 4 – 5

Oct ‘98 Oct ‘98 Gold Coast (1 or 2 weeks) and Ingleside (a few days) 23

Apr ‘99 Apr ‘99 Melbourne (7 – 10 days) then Ingleside (a few days) 8 - 9

Jul ‘99 Jul ‘99 Hope Island (about a week) and Ingleside (a few days)

133 This can be further summarised by saying that, in the period of around two years from early November 1995 to when Mr Sullman left for England at the beginning of 1997 Mr and Mrs Sullman were living in the same premises for the whole time except for approximately 22 to 25 weeks. That is, for more than three quarters of the time during those two years they were living in the same premises. Further, for most of the time that they were living in the same premises during those two years, they were living in the family home at Ingleside.

134 A different picture emerges after Mr Sullman’s departure for England in November 1997. In the period of approximately 21 months from the beginning of November 1997 to the beginning of August 1999, they spent between approximately 67 weeks and 70 weeks living in different premises. On those occasions when they were together during that period of 21 months, it was predominantly in holiday destinations. During those 21 months, Mr Sullman spent, at the most, six weeks living at the Ingleside property.

135 From his departure in November 1997 Mr Sullman regarded himself as a resident of the United Kingdom for tax purposes T 92.

136 On 16 February 2000 Mr Sullman swore an affidavit in support of an application to the Family Court to have the 1994 maintenance agreement set aside. His evidence included:

“Since around December 1997 I have been living in the UK and I mostly return to Australia around the time of school holidays when I spend time with the family including the children of the marriage”.

Paragraph (c) - Existence of a Sexual Relationship

137 It is more probable that there was a sexual relationship between them. They had previously been married, and had had a sexual relationship then. There was no discussion, when Mr Sullman moved back into the Ingleside house, about where he would sleep – he moved back to the bed he had previously occupied with Mrs Sullman. The Ingleside house had been inspected by a valuer from MLC, who issued a report on 7 September 1995 describing its accommodation as follows:

338 I said earlier that there was a dispute about whether the Child Support Agreement which Mr and Mrs Sullman entered in March 1993 and varied in July 1994, has terminated by operation of law. Those agreements were drafted on the basis that they were to be registered under the provisions of the Child Support (Assessment) Act 1989 (Cth), that the money paid under the agreement was to be credited against Mr Sullman’s liability under any existing or future administrative assessment, and was intended to constitute one hundred percent of the annual rate of child support payable under any relevant administrative assessment made pursuant to that Act. Those agreements were registered with the Child Support Agency.

339 On 17 March 2000 Registrar Messner, of the Family Court, ordered that an enforcement summons, which Mrs Sullman had filed in the Family Court on 16 December 1999, seeking to enforce the 1993 and 1994 agreements, be struck out. The Registrar, in the course of the reasons for that decision, said that:

“The agreement although registered with the Child Support Agency is not capable of enforcement by that Agency or under the Child Support Act because of a terminating event. That terminating event is the husband’s permanent move to the United Kingdom.”

340 The Registrar also held that the Agreement was not a Maintenance Agreement as defined in section 4 of the Family Law Act, and hence was not a maintenance agreement capable of registration under section 86 of the Family Law Act. The Registrar went on to make some obiter observations, that if it was wrong to conclude that the Agreements were not a Maintenance Agreement within section 4 of the Family Law Act, that,

“The Agreement therefore was terminated upon the terminating event being that the husband was no longer a liable parent within the definition of the Child Support Assessment Act.”

341 Mrs Sullman has appealed against that decision of the Registrar. That appeal had not been heard by the time of the hearing of this case before me.

342 Mr Sullman accepts, even after any relationship between himself and Mrs Sullman came to an end, he had a moral obligation to support his children. T.78 His explanation for not having paid Mrs Sullman anything for maintenance since May 1999 is, “I would say I have really paid them in advance.” T.79

343 Mrs Sullman ceased receiving payments of child support, identified as such, in relation to the period from, effectively, the beginning of January 1996. From that time, expenses connected with the children were paid from the general financial contributions which Mr Sullman made for the benefit of the family. If child support had been paid in accordance with the agreement from that time, and taking into account the Consumer Price Index increases, the following amounts would have been payable.

PERIOD PAYABLE	CALCULATION	SUM DUE FOR PERIOD
1.1.96 - 30.6.96	$208.42 (CPI 0.3%) x26 x4	$21,675.00
1.7.96 – 30.6.97	$208.42 (CPI 0.3%) x52 x4	43,351.00
1.7.97 – 30.6.98	$210.50 (CPI 1%) x52 x4	43,784.00
1.7.98 – 30.6.99	$213.24 (CPI 1.3%) x52 x3 James turns 18 on 6.3.99 - $11,088 x 249/365	33,265.00 7,564.00
1.7.99 – 30.6.00	$220.28 (CPI 3.3%) x52 x3	34,363.00
1.7.00 – 30.6.01	$234.16 (CPI 6.3% x52 x2) Elizabeth turns 18 on 4.2.01 - $12176 x 247/365	24,352.00 8,239.00
1.7.01 – 31.12.01	$247.74 (CPI 5.8% est) x26 x2	12,882.00
TOTAL	$229,475.00

344 Mr Sullman is right in the principle which lies behind his explanation for having paid nothing for maintenance since May 1999, namely, that amounts which he ought have paid in connection with the maintenance of his children, and which would have been payable regardless of any de facto relationship, can and should be offset against the actual contributions which he has made for the benefit of the family, of a kind which are taken into account under section 20(1)(a) and (b). However, one needs to look at the amounts of contributions, and the amounts properly payable in connection with maintenance, more closely, to ascertain where the net balance lies.

345 The reader will recall that when I was calculating the contributions which Mr Sullman had made to the basic household expenditure (see paragraph 267 above), I calculated the amount which he paid in excess of school fees and children’s medical insurance. I calculated it that way, because Mr Sullman was already obliged to pay those amounts, in accordance with the maintenance agreement which had been entered. When I say he was “obliged” to pay those amounts, I am not talking about a legal obligation, or in any way trying to predict or pre-empt the result of the appeal from the Registrar of the Family Court. Rather, I am saying that, as a matter of what was just and equitable between Mr and Mrs Sullman, and regardless of any strict legal obligation, Mr Sullman had an obligation to pay those amounts.

346 In similar way, he had an obligation to provide for the support of his children, which arose prior to and independently of the de facto relationship. Counsel for Mr Sullman submits that, once the relationship had started, all amounts which Mr Sullman paid for the benefit of the family, should properly be seen as contributions to the welfare of the family, within the meaning of section 20(1)(b). That submission is right. However, in taking the next step in the reasoning to arrive at the quantum of an order to be made under section 20, namely deciding what adjustment of property interests is just and equitable having regard to those particular contributions to the welfare of the family, one cannot ignore his pre-existing obligation to maintain his children. Once one has calculated the total payments which Mr Sullman made for the benefit of the family, the next step in deciding what is just and equitable having regard to those payments, is to then deduct from those total payments the amount which he was already under an obligation to pay, regardless of the existence of the de facto relationship.

347 During the period from the beginning of January 1996 to the end of October 1997, the amount which Mr Sullman was obliged, in this way, to pay for child support was, as derived from the table in paragraph 343 $(21,675 + 43,351 + (4/12 x 43,784)) = $79,620. This exceeds the amount of $78,076 which I have found (in paragraph 273 above) to be his contributions which count for the purpose of section 20(1)(a).

Mrs Sullman’s Contributions

348 In deciding what is a just and equitable adjustment of the property rights, it is also necessary to work out the contribution which Mrs Sullman made. If one adopts a literal approach to section 20(1)(b), her contribution included making available her home for the family to live in, and doing all of the household tasks which I have earlier listed. However, in adjusting the property interests between Mr and Mrs Sullman, it would not be just and equitable to give her credit for the entirety of those contributions. She would have made the home available for the children regardless of the de facto relationship, and would have performed household tasks for the children regardless of the de facto relationship. The only credit she is entitled to, for the purpose of calculating what is just and equitable within the meaning of section 20, is any extra benefit which she conferred, of the types I have mentioned, over and above what she would have done in any event, regardless of the existence of the de facto relationship. This “extra benefit” was making her home available to Mr Sullman, and performing household tasks for him.

349 Insofar as she made her house available to Mr Sullman, an allowance in the nature of rent would need to be made by him.

350 Before moving into the Ingleside house in November 1995 Mr Sullman was living in rented accommodation in Turramurra. The rental was paid as part of his remuneration by Lend Lease. Mr Sullman’s “guess” was that the rental for it was $600 or $700 per week T.172. The Ingleside accommodation was at least as comfortable as that at Turramurra, if not decidedly better.

351 When Mr Sullman received his termination payments from Lend Lease, it included a rental subsidy of $61,967.90.

352 I do not think that Mrs Sullman should receive credit for the whole of the amount of the rental which was being paid at Turramurra, or for the whole of the amount of the rental subsidy which was included in Mr Sullman’s termination pay. The Turramurra house was one where Mr Sullman lived with Miss Sullivan and Lawrence, and the rental payment covered accommodation for all of them. Even though the termination pay included an amount called “rental subsidy”, there is a real likelihood that Mr Sullman’s remuneration package, inclusive of a “rental subsidy”, would have been negotiated at a time when he was actually paying rent, namely during the time that he was living with Miss Sullivan. Notwithstanding the characterisation that the payment was given as between Mr Sullman and his employer, I cannot see that it is just and equitable, as between Mr and Mrs Sullman, for Mrs Sullman to receive the whole of it. Rather, it seems to me that the amount of credit which Mrs Sullman should get for making the house available for Mr Sullman, is more of the order of $250 per week. I see no reason why that amount should abate during the periods that Mr Sullman was away from Ingleside during that two-year period. This yields a credit in Mrs Sullman’s favour of $26,000.

353 I shall leave to one side, for the present, any valuation of Mrs Sullman’s homemaking services provided to Mr Sullman.

What is Just and Equitable for the “More Than Basic” Living Expense Payments, up to November 1997?

354 I have found that during the period up to November 1997 Mr Sullman probably made payments for the welfare of the family, which went beyond the provision of basic housekeeping, school fees, medical insurance and child maintenance. I have not been able to quantify the amount so provided. Even if I could quantify it, there would still be a problem about how it was that Mr Sullman having spent that money led to the conclusion that it was just and equitable that Mrs Sullman should, now, have some of her property taken away from her.

355 The most significant of these expenses would have related to the holidays. So far as the long holiday in 1996 is concerned, it was Mr Sullman who was the moving force in the family going on that holiday. There was no trace of a suggestion made at the time that going on that holiday might result in Mrs Sullman having the equity in her home eroded. The holiday has not resulted in Mrs Sullman having any extra assets, apart from the pearl. Likewise, for all the other holidays, Mr Sullman was the moving force, and there was no suggestion made at the time, that taking the holiday might result in Mrs Sullman having the equity in her home eroded.

356 In Myers v Myers (Brownie J, NSW Supreme Court, 21 October 1986, unreported) Brownie J considered a claim under section 20 where the man of the de facto couple had paid for an “expensive holiday”. His Honour said (at 8-9):

“contribution”

“welfare of the partners”

“welfare”

357 Though his Honour described it as a “small matter” it played no part at all in his Honour’s subsequent reasoning, nor in his calculation of the quantum of the order made.

358 In my view, the payments which Mr Sullman made for the extensive holidays (whatever the quantum of those payments might have been) is not such as to make it just and equitable for Mrs Sullman to now pay him money. The only exception I would make to this relates to the pearl, for which Mrs Sullman should make an allowance equal to its value. I assess that at $2,000.

359 Similarly, I can see no reason why whatever payments Mr Sullman might have made for expenses other than holidays (being expenses beyond provision of basic housekeeping, school fees, medical insurance and child maintenance) ought result in the making of an order. As well, in carrying out the comparison of contributions which section 20 calls for, Mrs Sullman has credits in her favour of $26,000 (notional rent), and the value of her homemaking services. When Mr Sullman has not established the quantum of the contributions he made, during the period up to November 1997, for items other than basic housekeeping, school fees, medical insurance, child maintenance and holidays, I cannot find that the value of these contributions which he has made exceeds the value of the notional rent, plus the homemaking services provided for Mr Sullman, minus the value of the pearl. Mr Sullman’s contributions to the “more than basic” living expense payments, up to November 1997, do not warrant any order in is favour.

Effect of Mr Sullman’s Payments After November 1997

360 The payments which Mr Sullman made after November 1997, need to be considered in a different way. I have identified those payments in paragraph 161 ff above. $24,000 of the $71,266.30, which I have there identified, was used in payment of the mortgage, and I have already given credit for it. Thus, there are payments made after 1 December 1997 by Mr Sullman totalling $47,266.30 for which I have so far not given credit.

361 That sum, plus payment of the first term school fees for Christopher and Edward at Pittwater House in 1998, and school fees for terms 1 and 2 for Christopher and Edward at Knox in 1999, is the sole contribution which Mr Sullman has made to the support of his children in the period of over four years since he left in November 1997. While his reduced circumstances are such that, during that time, he could not have afforded to pay child support at the rate provided for by the agreement, in my view the payments of the order of $47,000 which he has actually made since 1 December 1997 for a purpose other than payment of the mortgage ought be regarded (as I infer Mr Sullman himself regarded them at the time of making them) as payments for the maintenance of the children. To the extent that they were made, they are, in my view, fully attributable to his obligation, arising from a time prior to the de facto relationship commencing, to maintain his children. In my view they do not give rise to any circumstance which makes it just and equitable for Mrs Sullman to now pay him money.

362 Mrs Sullman has paid (or will pay this year) the following amounts connected with the children.

TERM	DESCRIPTION	COST $
1999	Term 3 at Knox for Christopher and Edward as boarders	18,500
2000	Terms 1,2 & 3 at Knox for Christopher and Edward as boarders	60,000
2001	Terms 1, 2 & 3 for Christopher and Edward as day students	24,947
2002	Term 1 at Knox for Christopher and Edward as day students	8,856
Subtotal paid by Mrs Sullman to Knox to date	112,303
2001	Term 1,2,3 & 4 at Macleay College for Elizabeth’s Journalism Diploma	7,000
2002	Term 1 at Macleay College for Elizabeth’s Journalism Diploma	1,750
Subtotal paid by Mrs Sullman to Macleay College to date	8,750
1/2000 to date	Lap-top hire for Edward at $89.30/month as part of lap-top program at Knox	1,160.90
2002	Fees payable for terms 2 & 3 at Knox for Christopher and Edward as day students	17,712
2002	Fees payable for terms 2,3 & 4 at Macleay College for Elizabeth’s Journalism Diploma	5,250
8/5/2000 to date	MBF private health insurance for Mrs Sullman and the four children until 21 at $395.30 per quarter	2,767
Subtotal paid by Mrs Sullman to Macleay, Knox & MBF to date	26,889.90
Total of payments by Mrs Sullman to Macleay, Knox & MBF to date	147,942.90

363 When these are the actual amounts which Mrs Sullman has paid since term 3 of 1999, and when they do not include amounts which Mrs Sullman paid in connection with the children from 1 December 1997 until term 3 of 1999, I can comfortably conclude that the $47,000-odd which Mr Sullman has paid, for purposes other than the mortgage, since 1 December 1997 is all consumed by his obligation to maintain his children.

364 The table in paragraph 362 includes amounts which are not strictly within the scope of the maintenance agreement. Mr Sullman has, since mid 1999, not approved of Christopher and Edward continuing at Knox. Any tertiary education (such Elizabeth’s journalism diploma) was outside the scope of the maintenance agreement. The laptop hire for Edward has already been taken into account as part of the basic expenses. The amount claimed for health insurance covers Mrs Sullman and the four children until 21, while the maintenance agreement covers only the children, until 18. Even though most of them are outside the letter of the maintenance agreement in this way, they are still legitimate expenses which Mrs Sullman has. Those expenses can be used for the very limited purpose for which I use them, namely, as confirmation that the $47,000 odd which Mr Sullman has paid after November 1997, other than for the mortgage, ought be regarded as all used up in partial performance of his pre-existing obligation to maintain his children.

A Detrimental Reliance Case?

365 Mr Sullman gave evidence, in paragraphs 33 and 34 of his affidavit of 21 November 2000, of a conversation with Mrs Sullman which might have provided the basis for an argument that he had relied on a representation by Mrs Sullman that he had an interest in the house. Mrs Sullman denies those conversations Paras 51 and 52 Affidavit Mrs Sullman 7 June 2001. Mr Sullman was not cross-examined on the conversation, nor was Mrs Sullman cross-examined on her denial. No submissions were made to me about this conversation. In these circumstances I shall not take this evidence any further into consideration.

ORDERS:

366 The orders I make are:

1. I declare that the plaintiff and the defendant are beneficial owners of Toyota Landcruiser motor vehicle registration TZF585 in the respective proportions 23,000:35,824.

2. Otherwise, amended summons dismissed.

3. Cross-claim dismissed.

367 I have not heard argument on costs. Uninstructed by such argument, the preliminary view which I would take on how the costs should fall is that the cross-claimant should pay the costs of the cross-claim, the plaintiff should pay the costs of the amended summons, and those two sets of costs should be set off. I would assess the costs of the amended summons as being 5% of the entire costs of the hearing. The result of effecting the set off, would therefore be that the cross-claimant pays 90% of the cross-defendant’s costs of the proceedings. If the parties wish to argue that some different order as to costs should be made, they may do so by re-listing the matter within 21 days from today’s date. To avoid incurring costs of a court appearance unnecessarily, I shall make a costs order now, but also direct that the orders not be entered for 28 days, so as to give the parties the opportunity to re-list the matter, and present any further evidence and argument which they might wish to present on the question of costs.

368 I therefore also order:

4. That the cross-claimant pay 90% of the cross-defendant’s costs of the proceedings.

5. That these orders not be entered until 28 days from today’s date.

**********

Last Modified: 03/28/2002

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Citations

Sullman v Sullman [2002] NSWSC 169

Most Recent Citation

The Queen v Gaudry [2021] VSC 113

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Statutory Material Cited

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Cited Sections

CITATION:	Sullman v Sullman [2002] NSWSC 169
CURRENT JURISDICTION:	Equity
FILE NUMBER(S):	SC 5016/99
HEARING DATE(S):	29/1/02-4/2/02, 6/2/02-8/2/02
JUDGMENT DATE:	27 March 2002
PARTIES :	Penelope Ann Sullman (plaintiff; cross-defendant) Michael John Sullman (defendant; cross-claimant)
JUDGMENT OF:	Campbell J

COUNSEL :	D E Grieve QC (plaintiff; cross-defendant) R C Lethbridge SC; with N Jackson (defendant; cross-claimant)
SOLICITORS:	M C Griffith & Co (plaintiff; cross-defendant) Hunt & Hunt (defendant; cross-claimant)
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS - construction of section 20 Property (Relationships) Act 1984 application of transitional provisions for 1999 amendments - whether contributions after end of relationship can be taken into account - whether financial contributions can be taken into account under section 20(1)(b) - meaning of "just and equitable" - EVIDENCE - no Jones v Dunkell inference available where witness not called is a solicitor and solicitor giving evidence would involve waiver of legal professional privilege - EVIDENCE - effect of failure to cross-examine - PERSONAL PROPERTY - ownership and possession - title to motor vehicle
LEGISLATION CITED:	Property (Relationships) Act 1984 Child Support (Registration and Collection) Act 1988 (Cth) Property (Relationships) Legislation Amendment Act 1999 De Facto Relationships Act 1984 Family Law Act 1996 Conveyancing Act 1919 Casino Control Act 1992 Child Support (Assessment) Act 1989
CASES CITED:	D v McA (1986) 11 Fam LR 214 Roy v Sturgeon (1986) 11 NSWLR 454 Howland v Ellis [2001] NSWCA 465 George v Hibberson [1987] DFC 95-054 Evans v Marmont (1997) 42 NSWLR 70 Myers v Myers 21 October 1986; (1987) DFC 95-056 Stephenson v State Bank of New South Wales Ltd (1996) 39 NSWLR 101 Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 Hibberson v George (1989) 12 Fam LR 725 Nguyen v Schieff [2002] NSWSC 151 Paric v John Holland (Constructions) Pty Ltd [1984] 2 NSWLR 505
DECISION:	Application for adjustment of property interests refused. Declaration of proportionate beneficial interests in motor vehicle.

Begin	End	Place	Approx weeks until cohabitation next resumed
Early Nov ‘95	Early Jan ‘96	Ingleside and Coolum	2 -3
22 Jan ‘96	22 Apr ‘96	Ingleside	10
1 Jul ‘96	Late Oct ‘96	Overseas trip	2 –3
13 Nov ‘96	10 Jul ‘97	Ingleside, and Jan ’97 visit to England (8 days)	8 – 9
15 Sept ‘97	Eary Nov ‘97	Ingleside	20
April ‘98	9 May ‘98	Thailand (2 weeks) and Ingleside (a week or two)	12 -13
18 Aug ‘98	1 Sept ‘98	Ingleside	4 – 5
Oct ‘98	Oct ‘98	Gold Coast (1 or 2 weeks) and Ingleside (a few days)	23
Apr ‘99	Apr ‘99	Melbourne (7 – 10 days) then Ingleside (a few days)	8 - 9
Jul ‘99	Jul ‘99	Hope Island (about a week) and Ingleside (a few days)