Supresencia v Powell

[2002] NSWSC 773

Reported Decision: (2002) DFC 95-261

New South Wales

Supreme Court

CITATION:	Supresencia v Powell [2002] NSWSC 773
FILE NUMBER(S):	SC 3991/01
HEARING DATE(S):	20/08/02,21/08/02
JUDGMENT DATE:	30 August 2002
PARTIES :	Nenita Sabrin Supresencia (Plaintiff) Murray Norman Powell (Defendant)
JUDGMENT OF:	Acting Master Berecry

COUNSEL :	T Hodgson (Plaintiff) M Bridger (Defendant)
SOLICITORS:	Keddies Solicitors (Plaintiff) Jack Rigg (Defendant)
CATCHWORDS:	Lengthy relationship - nature of contributions - no financial contributions by plaintiff - significant non financial contributions - parenting and homemaker role - nature of assets - broad definition of property - maintenance - factors determining an application - extent of courses or programmes.
LEGISLATION CITED:	Property (Relationships) Act 1984
CASES CITED:	Spencer v the Commonwealth (1907) 5 CLR at 418 The Marriage of R & E Shaw 12 FamLR 806 The Marriage of Antmann (1980) 6 FamLR 560 at 565 Wallace v Stanford (unreported Court of Appeal 9 December 1994) Marriage of Rolfe (1978) 25 ALR at 219, Mallet v Mallet 156 CLR 605 at 636 Evans v Marmont (1997) 42 NSWLR 70
DECISION:	See para 44.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BERECRY AM

30 August 2002

3991/01 – Nenita Sabrian SUPRESENCIA v Murray Norman POWELL

JUDGMENT

1 MASTER: The plaintiff commenced proceedings under the Property (Relationships) Act 1984 seeking an order adjusting the interest of the parties with respect to property and for provision for maintenance.

2 It is not in issue that the parties lived in a de facto relationship. The relationship commenced in 1980 and continued, with the exception of one break, until 31 May 2001. In 1983 the defendant left the plaintiff for a period of approximately six months, thereafter cohabitation resumed. It is not seriously in issue that the relevant period, for the purpose of this application, is the total of the two periods, namely 1980-1983 and 1984-2001.

3 The plaintiff was born on 13 May 1956, she is currently forty six years of age. The defendant was born on 16 May 1925 and is currently seventy seven years of age. The parties met in the Philippines, the plaintiff being a citizen of that country, in 1980. Her evidence is that she worked in a bar which was run by her aunt. It was in this establishment that the defendant met the plaintiff. At that time the defendant was living permanently in the Philippines, he owned an apartment and had investments in that country. Shortly after they met, they began living in a de facto relationship.

4 Upon the commencement of the relationship the plaintiff ceased to work. The defendant was not in the workforce and had not worked since approximately 1970, he relied solely on his investments. It is the plaintiff’s evidence that the defendant wished her to cease work and look after him. The apartment that he owned was part of a converted motel. Their apartment consisted of a bedroom, a lounge/dining room area, kitchen and although there was no evidence of this, I assume bathroom and toilet facilities.

5 The evidence is that the parties had a reasonable standard of living in the Philippines. The defendant’s evidence is that they ate out at restaurants on a regular basis, he had a motor vehicle, he was able to provide overseas holidays and they were able to do things that Philippinos with money are able to enjoy. During their time in the Philippines, they had maids to assist them with their domestic chores. There were at times three maids, but generally two maids one of whom was a live-in. Although the accommodation was restricted and they ate out on a regular basis, it seems that there were still things for a maid to do.

6 Shortly after the relationship commenced, the plaintiff fell pregnant. On 3 October 1981 their son Thomas was born. The plaintiff’s evidence is that she looked after the day-to-day needs of both the plaintiff and the child. She provided the role of a carer. She prepared meals, did the washing and helped clean the unit. She readily conceded that the maids also assisted with these functions. The defendant, whilst conceding that he performed no tasks of a domestic nature, was reluctant to concede that the plaintiff played any significant role as a carer for either himself or the child, however, reluctantly he did admit that she performed these functions although with the qualification that she was assisted by maids.

7 The relationship broke down in 1983 when Thomas was a little over twelve months old. The evidence is not terribly clear but it seems that the defendant formed a view that the plaintiff wanted to have the son euthanased. The defendant’s evidence was that Thomas had been ill on a number of occasions and it was the defendant and one of the maids who took him to either the hospital or the doctor. On one occasion he says the plaintiff said words to the effect that “Thomas is no good, have the doctor given him a needle.” The defendant’s evidence is that he took that to mean that she wanted the child’s life terminated. He says he became concerned about this and wanted to take steps to remove the child from the plaintiff. His evidence in relation to this matter was unconvincing and inconsistent. Having formed an opinion that the plaintiff may do harm to the son, he did not contact the Philippino Police. What he did was to leave the Philippines. He flew to Sydney where he spent two months and then from there he went to Samoa. His evidence was that the purpose of going to Samoa was to secure a wife so that he could take her back to the Philippines whereupon an application would be made to the relevant Philippino agency for custody of Thomas. However, the marriage in Samoa lasted six weeks. I have grave doubts whether there was ever the intention that the defendant attributed to his actions. On returning to the Philippines, he resumed cohabitation with the plaintiff.

8 His affidavit evidence contradicts the evidence given in the witness box. In para 20 of his affidavit of 14 May 2002 the plaintiff states as follows:-

“Whilst I lived in Manila I was very concerned for Thomas’ safety. Kidnapping children was not a rare event. For that reason I ensured that Thomas was always carefully supervised either by the plaintiff and me or by the household staff”.

I therefore find the plaintiff’s evidence in the witness box concerning the concerns that he had about the plaintiff’s attitude to Thomas as being fanciful. The material contained in his affidavit was not referred to by him in the witness box and that material would have been material that he would have considered carefully before swearing the affidavit. There is no hint of any concern about the plaintiff wishing to cause harm to Thomas, in fact the contrary is the case. He was concerned about the possibility of kidnapping and therefore ensured that either he and the plaintiff supervised Thomas or he was supervised by a member of the household staff.

9 The parties continued to reside in the Philippines until approximately 1987.

10 In 1987 it was decided that the parties would relocate to Australia. On arrival in Australia, they commenced to live in a rented flat at Randwick. This was to be their accommodation over the next eleven years. After they had returned to Australia, neither the plaintiff nor the defendant entered into the workforce. The plaintiff’s evidence was that the defendant did not want her going out to work, as the defendant or his mother was able to provide them with funds as and when they needed them. He also expressed a desire that she look after the family.

11 Once again when first cross-examined the defendant did not accept that the plaintiff performed a caring role for Thomas, however, the defendant agreed that other than cleaning shoes and walking Thomas to school occasionally, all other domestic duties in relation to Thomas were provided by the plaintiff. These included preparing meals, washing and ironing, cleaning the house and taking Thomas for walks. The defendant’s evidence, however, is that he cannot recollect the plaintiff taking Thomas for walks. His recollection was that from about the age of six Thomas would go across the street to a park with friends and play in the park. He readily conceded that he did not supervise Thomas, or perhaps take a great interest in Thomas’ welfare. The defendant also conceded that he performed no domestic duties around the house. This was merely an extension of the way in which he conducted his life in the Philippines. In his view the family ate out on a regular basis, however, it was conceded that the plaintiff performed domestic duties for the family which included cooking. I accept the plaintiff’s evidence that on those occasions when they went to a restaurant for lunch, that she at times provided at least a light meal for the defendant in the evening. The plaintiff gave evidence which was not conceded by the defendant, that she applied lotion to a skin complaint the defendant had, prepared his medications and cared for him after surgery in 1993.

12 During this period the defendant attended on his mother every day of the week. Over time he reduced the visits to three or four times a week. This in part was the reason given by him for not being able to perform or to share in the domestic duties that needed to be performed in the household. It seems to me that by default this is an admission that those duties would have had to have been performed by the plaintiff.

13 The defendant’s evidence reveals sleeping arrangements in the household from the inception of the relationship. In the Philippines he had the bedroom to himself and the plaintiff slept on the floor in the lounge/dining area with the live-in maid. When Thomas was born, Thomas was placed in a cot and also slept in the lounge/dining room area. When the parties relocated to Australia, his evidence was that Thomas had the second bedroom, he had the main bedroom and the plaintiff continued to sleep on the floor in the loungeroom. This continued right up to the date of separation. He was asked whether or not he made enquiries of the plaintiff about the reason for her sleeping on the floor in the loungeroom and whether he had ever offered to share the bed with her. His response to those questions was that he had never discussed those matters with the plaintiff. That response creates an impression of somebody who is uncaring and wants to have somebody at his beck and call to look after his needs with no emotional input being reciprocated by him.

14 At some time after the parties relocated to Australia, the defendant’s mother provided an allowance to the defendant. This was by way of a weekly payment. Initially it was $200 and then at some stage prior to 1998, it had increased by increments to $1,000 a week.

15 The plaintiff’s assets were of little value. There is no description of what her assets were in the Statement of Claim. The defendant’s assets at the beginning of the relationship consisted of an apartment in Manila, valued at approximately $25,000, and investments valued at somewhere between $75,000-$100,000. There was a difference in the evidence given by the parties in relation to the requirements of the defendant concerning the plaintiff’s ability to have friends and socialise. The plaintiff’s evidence was that the defendant said on many occasions he did not want her forming friendships with other Philippinos or continuing to have contact with her family in the Philippines. Her evidence is that on occasions when she did go out, she became very anxious because of the way in which the defendant had conducted himself in the past when she had been out. On returning home she had found the plaintiff to be threatening and caused her anxiety to increase. She gave evidence of being locked out of the flat at Randwick on one occasion.

16 Her evidence was that by and large whenever she left the flat or the unit, she was accompanied by the defendant. On most occasions when they left their premises, it was to do shopping or to buy clothes or to purchase a midday meal at a restaurant or café. Other times when they went out together it was to attend their son’s sporting fixtures or to attend parents’ functions at his school. Other than those occasions the plaintiff had no social life with any person other than the defendant during the time that they lived at Randwick. When they moved to the Park Regis building, there was evidence that the plaintiff became friendly with another tenant of that building, a Mrs Chung, and together for a few months they were involved in a form of pyramid selling. The plaintiff had one other friend, Vivienne Lim, during this period.

17 The defendant’s evidence was that the plaintiff was free to go to and from the flat and the unit as she chose. His evidence was that each Saturday he would drive her to Bondi Junction and then continue on to his mother’s place. At Bondi Junction she would spend the day shopping and arrive back home at around about 4 pm.

18 As a result of my observations of both parties in the witness box, on this point, I prefer the plaintiff’s evidence to that of the defendant. When examined on this aspect of their relationship, the plaintiff became quite distressed and teary in the witness box. The defendant, on the other hand, was very matter of fact about questions that were put to him and on many occasions either could not remember or denied the assertions of the plaintiff. However, he was unconvincing in the way in which he responded to the cross-examination.

19 The defendant’s mother died in 1998. She left an estate of approximately $4,000,000. The sole beneficiary of her estate was the defendant, her son. The estate consisted of a unit in the Park Regis building in Park Street, Sydney; the contents of that unit and various sums held in bank accounts. The cash component of the estate was approximately $3,250,000. The defendant’s mother died approximately three years before the parties separated.

20 As well as giving a weekly allowance to the defendant, his mother also provided him with jewellery from time to time. The purpose of supplying him with the jewellery was twofold; firstly, for him to retain the jewellery and use as he saw fit, which on occasions he sold and this provided an injection of cash for the defendant and secondly, the jewellery was provided with the instructions that he was to sell the jewellery and give the proceeds of sale to her. The defendant carried out these instructions. At the time of separation, the parties held jewellery, which had a substantial value. There is evidence from valuers as to the valuation of the jewellery. Their evidence varied as to the methodology used to determine the valuation of the jewellery.

21 The plaintiff’s valuer valued the jewellery on a fair market value, that is, the gross price obtained at a properly promoted and conducted auction sale or similarly realizable situation between a willing buyer and a willing seller. The defendant’s valuer valued the jewellery on a retail replacement value. It was conceded by the plaintiff’s valuer that if his valuation was done on a retail replacement basis the valuation would be a similar valuation to that assessed by the defendant’s valuer. Likewise, the defendant’s valuer set out two alternate valuations, one being based on a fair realizable second hand value which appears by definition to be the same method as a fair market value method in which she indicated that her retail replacement value figure would be reduced by fifty percent and thirdly on the median disposable and cash settlement the figure would be twenty percent of the retail replacement value. Therefore, on the defendant’s first alternate valuation, the value is approximately the same as the plaintiff’s valuation, the difference being approximately $10,000. Two authorities were cited for each side’s contention as to what the appropriate value should be. I was referred to Spencer v the Commonwealth (1907) 5 CLR at 418 which the Court held that a fair market value to be the appropriate method for evaluating the asset. I was also referred to in The Marriage of R & E Shaw 12 FamLR 806. A reference is made in that case to in The Marriage of Antmann (1980) 6 FamLR 560 where at 565 the Court said

“ There is, however, no fixed rule as to what is the proper method of valuation. That must vary not only with each type of property or commodity concerned but also with the purpose for which they were originally acquired and the need to realize them in the shorter or longer term.”

In re Shaw at 817 the Court said

“ As a general statement of the legal position we agree with that, in particular, we agree that when considering the value of personal property especially, a significant consideration is whether that property is likely to be realized in the shorter of longer term. If there was a real likelihood that it will need to be realized in the short term then commonsense dictates adoption of a value based on realisation by some expeditious method, whereas if the likelihood is that it will be retained indefinitely by one of the parties, then a more generous value, such as one based on replacement cost, or realisation by a more leisurely method may be more appropriate.”

Therefore, it seems from the authorities, that one must really look at the purpose for conducting the valuation. Of course valuing the jewellery for the purpose of litigation to determine what the parties assets are is one purpose. But there also needs to be factored into the consideration by the valuer the purpose to which the parties will put the jewellery to. The plaintiff’s only asset was the jewellery. It seemed to me, that having regard to what the plaintiff’s position has been since separation that she would need to use the jewellery to support herself. Therefore, it seems to me that it is appropriate to apply the matters that the Court said need to be considered in The Marriage of Shaw ( supra ) to determine in this particular instance what is the appropriate method of valuation. In my view, the appropriate method of valuation is that used by the plaintiff’s valuer. Therefore, I adopt his for the purpose of these proceedings.

22 There was conflict as to the ownership of the jewellery. The plaintiff’s version is that from time to time the defendant’s mother gave to her by way of gift items of jewellery. The defendant denied this, his evidence was that his mother gave the jewellery to him. In a number of instances he then gave the jewellery to the plaintiff, I assume as a gift. Nothing turns on how the parties obtained the jewellery. The fact of the matter is that the parties acquired the jewellery and the jewellery formed an asset of the relationship.

23 At the time of separation, the assets of the parties were as follows. The plaintiff had jewellery to the value of approximately $134,000. The defendant’s assets were as follows:-

(i) 351/27 Park Street, Sydney $800,000.00

(ii) Unit 23 Bayview Tower, Bayview Street, Runaway $400,000.00

Bay Queensland

(iii) Esanda debenture policy number 122490029 $2,750,000.00

(iv) Monies with Commonwealth Bank Limited $200,000.00

(v) Ford Cougar motor vehicle

(vi) Honda Prelude motor vehicle

(vii) Hyundai coupe motor vehicle

(viii) Jewellery $250,000.00

(ix) Contents of two apartments $20,000.00

24 Since separation, the defendant’s income has increased from $100,000 to a sum in excess of $135,000. The defendant since 2000 has been providing the son with an allowance of $350 per week. On his evidence, that the allowance is continuing.

25 At the time of separation, the defendant gave the plaintiff $1,000. The plaintiff took with her jewellery to the value of approximately $134,000. Since separation the plaintiff has worked for a period of three weeks as a nurse’s aide and for a short time in a restaurant of a friend for which she did not receive any remuneration. The plaintiff’s evidence is that she has had to sell or pawn most of the jewellery to enable her to live. Since separation she has either lived with friends or paid rent in shared accommodation. She has also had to provide food for herself and meet bills. The evidence is, although this is contradicted by the defendant’s medical evidence, that the plaintiff suffers from depression brought about by the isolation that she felt as a result of the defendant’s attitude during the course of the relationship. Her evidence is that until she can overcome the depression, she does not have the self-confidence to go into the work place and to compete for jobs. She feels she is also at another disadvantage in that she is not equipped with any skills to go into the workforce.

26 Evidence was put on by Tracy Todd, a rehabilitation counsellor, concerning possible occupations that the plaintiff may be able to undertake. She interviewed the plaintiff on 7 January 2002 and made a number of recommendations concerning the type of employment which would be suitable for the plaintiff and the training that she requires to enable her to be competitive in the workforce.

27 Since separation, the plaintiff has spent in excess of $90,000. The evidence was that this money was used to pay debts, rent, provide for her ordinary day to day living expenses, to send money to relatives in the Philippines and to gamble. Exhibit 1 shows that a substantial amount of money, over a three month period, was used to feed her gambling habit. The plaintiff readily admitted that she had a gambling habit brought about by the feeling of isolation and loneliness. Her evidence is that in the last month she has been able to get on top of this habit and no longer gambles.

28 Much of the defendant’s response to questions in cross-examination was vague. Many propositions put to him were generally denied. Some of his responses to questions were fanciful. By way of example, when cross-examined on $1,000 he gave to the plaintiff when she left him his response to the proposition that she had nothing to live on was “She has assets galore, I thought she had money.” This could only be regarded as a fanciful response. The defendant has lived with the plaintiff for the better part of twenty one years. He was the only party who had access to money on his own evidence throughout the course of the relationship. She had no bank accounts and he provided all monies. She admitted that he had given her $10,000 in 1996 and it seems there may have been $10,000 given in 2000. His evidence is that those amounts were given to her as a lump sum, for her to do as she wanted with them. Her evidence is that whilst she received the money, it was used in part to buy clothing for herself and also for Thomas and it was used on household expenses. Either way the defendant is fully aware that monies that he had actually given to the plaintiff over that twenty one year period amounted to somewhere between $20,000 and $30,000. There was some evidence earlier in the proceedings of three amounts of about $3,000 being paid to the plaintiff. I did not accept that the defendant believed that the plaintiff was able to retain most of these funds. Over a twenty year period, the monies that she was actually given averaged slightly in excess of $1,000 per year. He admitted that she did not have a bank account and it is highly fanciful for him to think that she would have held these funds and treated them as investment funds.

29 I accept the defendant’s evidence that the jewellery was given by his mother to him and not to the plaintiff. I also accept that certain items of jewellery were given by him to the plaintiff. I think it improbable that the deceased would have given jewellery directly to the plaintiff or would have formed an intention to give the jewellery to her by way of gift. It seems to me that when one reads the deceased’s will it is clear that the only person in her mind was in fact her son, the defendant. However, in all other aspects of the evidence, I prefer where there is a difference, the plaintiff’s version to the defendant’s version.

30 It is conceded, on behalf of the plaintiff, that during the course of this relationship she made no financial contributions to the relationship. The defendant made financial contributions throughout the course of the relationship, however, those contributions were not ones that could be regarded as being the product of his own exertion. At the commencement of the relationship he had an apartment in the Philippines and money invested. The amount of that money is in doubt, however, it would appear that it was somewhere between $75,000 and $100,000.

31 The defendant’s evidence was unclear about the assets that he brought back to Australia 1987. He could not remember whether he was able to recoup the full amount of his investment in the Philippines, he doubted whether he was able to do that, however it is mere speculation to try and attempt to work out how much money he brought into Australia. About as far as that can be taken is that it was something less than the initial investment.

32 The evidence of both the defendant and the plaintiff is that on arrival in Australia, they were supported by his mother over the next eleven years. The defendant’s evidence is that initially his mother paid him an amount of $200 per week and that increased by increments until the date of her death she was paying him $1,000 per week. Both parties admitted that their lifestyle was frugal. Notwithstanding that they would eat out at either restaurants or cafes three or four times a week. In a sense the defendant made little by way of personal financial contribution to the relationship. By 1998 they had been living in rented accommodation for eleven years. They had not built up any personal assets or investments. They lived solely on the largesse of his mother. Not only did she provide him with a weekly allowance, but she also gave him pieces of jewellery for his own use. Some pieces of jewellery were sold and the money was used for living expenses. Other pieces of jewellery were retained. He also sold pieces of jewellery on his mother’s instructions and handed the proceeds of sale to her.

33 S 3 of the Property (Relationships) Act defines property

“In relation to parties to a domestic relationship or either of them, includes real and personal property and any estate or interest (whether a present, future or contingent estate or interest) in real or personal property, and money, and any debt, and any cause of action for damages (including damages for personal injury), and any other chose in action, and any right with respect to property.”

This is a broad definition of the word property. In my view, it covers not only assets acquired or conserved during the relationship but is wide enough to include as property in relationship to a party any interest in an estate. Therefore, it would seem to me that once a party receives a legacy, that legacy would constitute property of the party for the purpose of this legislation.

34 S 20 of the Act permits the Court to make an adjustment of the interest of the parties in property as seems just and equitable. The section requires the Court to have regard to financial and non financial contributions made either directly or indirectly, by or on behalf of the parties, to the acquisition, conservation and improvement of property and contributions, including any contributions in the capacity of homemaker or parent in relationship to the welfare of the family constituted by the parties and a child of the parties.

35 In Wallace v Stanford (unreported Court of Appeal 9 December 1994) Mahoney JA considered the breadth of that section.

“The essential difference between the parties is whether, in determining what ‘to it seems just and equitable,’, the court may have regard only to the ‘contributions’ referred to in paras (a) and (b) or whether it may have regard also to the other and wider considerations.
… I think that the power given by s 20 is not at large”

His Honour came to the conclusion that contributions extend not merely to financial or non financial contributions to property but to more general contributions referred to in s 20 (1) (b). It is those contributions and their contribution to the property or financial resources of the parties and to their welfare to which consideration is limited. It is upon this basis that the Court is to determine what is just and equitable in that particular case. Therefore the mere fact that the defendant inherited a large sum of money may in itself not permit the Court to make an order adjusting the interests of the parties. To determine whether or not the inheritance should be taken into consideration one needs to look at the contributions made by the parties during their relationship and to balance each others contribution in respect to matters contained in s 20 subsection 1 (a) and (b). In truth, certainly since 1987, the financial contributions to the relationship were not made by either party. Those contributions were provided the defendant’s mother directly to the defendant and therefore indirectly to the plaintiff by the defendant’s mother.

36 Until 1998 the only financial contribution made by the defendant was the income and capital of his investment in the Philippines and the provision of accommodation in the apartment he owned. Thereafter, the parties acquired no assets until 1998 when the defendant’s mother died. At that point the defendant received the whole of his mother’s estate. The relationship continued for another three years after the death of the defendant’s mother. There is some evidence which would suggest that there were non financial contributions during this period by the plaintiff in respect of the Park Regis property and a property subsequently purchased at Runaway Bay in Queensland. However, it could not be said that these contributions were significant. Her evidence is that she cleaned the Park Regis unit and repainted it. The defendant did not concede that the unit needed cleaning but did concede that she spent a couple of weeks repainting the unit. He did not concede that she had a role in the purchase of curtains but in cross examination it became clear that whilst he provided the money for the purchase of the curtains and for someone to fit them that she chose the curtains.

37 There was also some evidence concerning the Runaway property. Firstly, they both inspected, at least one other property before deciding to purchase the one that was ultimately purchased. Secondly, that she had some input in the work that was to be done on that property. This evidence is very vague. It is not followed through and there is nothing of any note in the affidavits one way or the other. During this period of course the plaintiff continued to provide contributions in her capacity as a homemaker. On the defendant’s own evidence his role as a homemaker was at best minimal. It would appear that the only things the defendant did were to attend functions for their son when he was younger and to polish his shoes. I doubt very much whether he would have polished his sons shoes during his teenage years.

38 The plaintiff also seeks provision for maintenance pursuant to s 27 of the Act. Any application by the plaintiff for maintenance is governed by s 27 (1)(b). S 27(2) sets out the matters the Court should have regard to in determining whether or not an order for maintenance should be made. In my view, the plaintiff’s earning capacity has been adversely affected by the circumstances of the relationship. The question is, whether or not an order for maintenance will increase the applicant’s earning capacity, by enabling the applicant to undertake a course or programme of training or education and whether or not in all the circumstances it would be reasonable to make such an order. Evidence was given by Ms Tracy Todd, a rehabilitation counsellor. Her evidence was that the plaintiff has good prospects of obtaining work in occupations such as a carer for aged and disabled persons, a nursing aid or a waitress in a café or restaurant. It was conceded that most of these occupations merely required on the job training rather than undertaking a formal training or education course. It was also conceded that the part of the consultation with Ms Todd was to assess the plaintiff’s job seeking skills. There is medical evidence concerning her depression. It would appear, that the prognosis is that once the uncertainty of her accommodation and income has been overcome, the plaintiff’s depressive nature will disappear. S 27 (1) (b)(i) is not limited to undertaking formal courses or programmes conducted by educational institutions. It is broad enough to include on the job training. It would seem to me therefore, that the plaintiff comes within the intent of the subsection. S 27(2) sets out numerous matters that the Court shall have regard to in determining whether or not maintenance should be paid. Those matters include the financial needs and obligations of the parties, responsibility of the parties to support any other person, the provisions of any orders pursuant to s 20 of the Act and any payments made pursuant to that order.

39 S 30 provides that the payment of maintenance is of limited duration. Maintenance will be paid for a period not exceeding either three years after the order is made or four years after the day the relationship ceased or last ceased whichever is the shorter. The relevant consideration therefore in this application for maintenance is the second period, namely a period not exceeding four years after the day in which the relationship ceased. That would mean, that if maintenance were to be provided, it would run for approximately twenty one months.

40 In my view, having regard to the quantum of the adjustment that I think is appropriate pursuant to s 20, the plaintiff will have sufficient funds to enable her to support herself adequately during any period in which she seeks employment or retraining. Therefore, I do not think that it is appropriate in the circumstances, to make an order that the defendant pay the plaintiff maintenance.

41 In my view, the plaintiff has made substantial contributions to the relationship which require an adjustment of their interests. Contributions as a homemaker should be recognised in a substantial way. See in Re:Marriage of Rolfe (1978) 25 ALR at 219, Mallet v Mallet 156 CLR 605 at 636, Evans v Marmont (1997) 42 NSWLR 70. The plaintiff’s contributions as a homemaker were significantly greater than those of the defendant. Whilst she made no financial contributions to the acquisition or conservation of any property, she certainly made non financial contributions to a property. Most of those contributions were of a homemaker nature however the evidence is that she painted the Park Regis unit. There is no evidence by the defendant that he did anything in respect of the conservation or improvement of either the Manilla apartment or the Park Regis unit beyond making monies available for the purchase of curtains for the Park Regis unit.

42 In my view, it would not be just and equitable for no provision to be made for the plaintiff. When one considers the length of the relationship, the fact that there was a child of the relationship, that the dominant partner in terms of homemaking and parenting was the plaintiff. It is, in my view, self evident that provision be made for her. During the twenty one year period, she devoted herself to his welfare and to that of their son Thomas. I accept her evidence that the defendant did not want her to mix with Philippino people in Australia or to have contact with her family. She was therefore, by and large, in isolation. Because of his attitude, she felt constrained about seeking employment and I accept her evidence, that he made it clear that he did not want her to go out to work. This is another example of her not being able to develop social and work skills in a foreign country. Now at the age of forty six, she finds herself ill equipped to support herself without assistance in Australia. On one side of the ledger, she has some but not much money left over from the sale and the pawning of the jewellery. The other side of the ledger is that the defendant has subsequently remarried and has assets close to $4,000,000. Included in those assets, are two homes in his own name, in addition he has purchased a home for his elder son in which his present wife lives and an investment fund of some $2,700,000.

43 Any adjustment should be made on a global basis. Having regard to the plaintiff’s contributions to this relationship and to the meagre resources that she has at the present time, I am of the view, that there should be an adjustment made in favour of the plaintiff, in the sum of $900,000. Offset against this, should be the jewellery that she took when she left the relationship. I accept the methodology of valuation by Mr Abeshouse. However, I have averaged his valuation and the first alternative of the defendant’s value thus allowing $70,000 as the value of the jewellery. To that needs to be added $64,000 being the monies of the jewellery sold by Sothebys. Therefore, in my view, the adjustment to the $900,000 subtracting $134,000.

44 Therefore the orders that I make are:

1. The defendant pay the plaintiff the sum of $766,000 and upon payment, the defendant be declared the owner of all property presently registered in his name or possessed by him.
2. The plaintiff be declared the sole owner of all items of jewellery and personal effects presently in her possession, custody and control.
3. The defendant pay the plaintiff’s costs.

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Last Modified: 09/02/2002