Victor Milevsky v Pamela Brenda Carson (aka Pamela Brenda Milevsky)

Case •

[2005] NSWSC 299

•

13 April 2005

No judgment structure available for this case.

Reported Decision:

 (2005) DFC 95-314

New South Wales


Supreme Court


CITATION:

Victor Milevsky v Pamela Brenda Carson (aka Pamela Brenda Milevsky) [2005] NSWSC 299
HEARING DATE(S): 23/08/04; 24/08/04; 25/08/04; 26/08/04; 27/08/04; 24/09/04
 
JUDGMENT DATE : 


13 April 2005

JUDGMENT OF:

Nicholas J

DECISION:

Paras 138, 139, 140
CATCHWORDS:

De facto relationships - adjustment of property under s 20 Property (Relationships) Act 1984 - whether orders should be made to adjust property interests of the parties - matters to which the court is to have regard in making adjustments - assessment of financial and non-financial contributions to the acquisition, conservation and improvement of the property - consideration of homemaking and parenting contributions - whether loan entered into between the parties was repaid
LEGISLATION CITED:

Property (Relationships) Act 1984 s 19, s 20
CASES CITED:

Green v Robinson (1995) 36 NSWLR 96
Hughes v Egger [2005] NSWSC 18
Jones v Grech [2001] NSWCA 208; (2001) 27 Fam LR 711
Mallett v Mallett (1984) 156 CLR 605
Powell v Supresencia [2003] NSWCA 195; (2003) 30 Fam LR 463
PARTIES:

Victor Milevsky - Plaintiff
Pamela Brenda Carson (aka Pamela Brenda Milevsky) - Defendant
FILE NUMBER(S):

SC 2457/02
COUNSEL:

P A Campton - Plaintiff
P J Livingstone - Defendant
SOLICITORS:

Brenton Banfield Solicitor - Plaintiff
Marsdens Law Group - Defendant
LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Nicholas J

13 April 2005

2457/02 Victor Milevsky v Pamela Brenda Carson (aka Pamela Brenda Milevsky)

JUDGMENT

1 His Honour: These proceedings are for the adjustment of property under s 20 Property (Relationships)Act 1984. The parties lived together in a de facto relationship for a total period of at least about fifteen years until they separated on 19 November 2001. The duration of this relationship is in issue.

2 The proceedings concern, principally, the property in which they last cohabited, No. 1 Elizabeth Henrietta Circuit, Macquarie Links (Macquarie Links) of which the parties are registered proprietors as joint tenants. Since separation the defendant has continued to live at Macquarie Links. She has been paying the rates, building insurance, electricity and telephone charges and the plaintiff has been paying the mortgage instalments and contents insurance.

3 The plaintiff seeks an order that the defendant transfer her interest in Macquarie Links to him. The defendant, by her cross-claim, seeks orders that the plaintiff transfer his interest to her clear of all mortgage debt, and for the payment of the sum of $153,054.00 on the basis that she is entitled to one half of the assets or their value at trial.

4 The plaintiff puts the commencement of the de facto relationship at January 1983 when he says cohabitation commenced and the defendant and her children moved to live at No. 44 Hoxton Park Road, Liverpool (Hoxton Park Road). He says that they lived together with periods of separation until May 1989 when the relationship ceased. He says that they resumed cohabitation in May 1993. The defendant contends that the relationship was from 1978 until May 1989, and that it resumed in December 1992.

5 It was common ground that, at least from January 1983 to May 1989, and from May 1993 until their final separation on 19 November 2001, the parties lived together in a de facto relationship.

6 The claim of each party for adjustment requires consideration of the contributions made throughout the relationship and hence it is necessary to set out some history.

Chronology

7 The plaintiff was born on 1 January 1946 and is now 59 years of age. For many years he has been a property developer and salesman. The defendant was born on 14 March 1945 and is now 60 years of age. She was married to Derek Scott Carson on 26 March 1964 and the marriage was dissolved on 12 December 1977. The children of that union are Pamela Boyle born 8 January 1966, Scott Carson born 23 August 1967, and Derek Carson born 23 December 1968.

8 On 14 September 1973 the plaintiff purchased vacant land at Lot 25 Paris Parade, Katoomba for the sum of $995.00, and on 14 December 1973 he purchased Lot 8 Greens Road, Greenwell Point for the sum of $5,390.00. On 26 February 1974 he purchased vacant land at Lot 29 Genevieve Road, Bullaburra for the sum of $1,850.00.

9 In 1974 the defendant separated from her husband, and he transferred to her his interest in their jointly owned property at No. 26 Kendall Street, Campbelltown (Kendall Street).

10 On 22 March 1978 the plaintiff purchased Hoxton Park Road which was then vacant land for the sum of $17,200.00. It was paid for from part of the proceeds of the sale of his property at Moorebank, which he had bought and developed in about 1969.

11 On 10 August 1978 the plaintiff obtained a loan for the purpose of financing the construction of a house at Hoxton Park Road. Construction was completed on 30 June 1979.

12 Between 10 July and 21 July 1979 the plaintiff was a patient at the Royal North Shore Hospital, Sydney where he underwent an operation and treatment for an injury to his lower back.

13 The defendant says that cohabitation first commenced at Hoxton Park Road during 1978 when she came to live there with her children. This is denied by the plaintiff who says that although they lived together for varying periods of time in 1978 and thereafter, she did not begin to live there until July 1979 and left after a few weeks.

14 On 16 May 1980 the plaintiff purchased Lot 24 Paris Parade, Katoomba for the sum of $4,500.00.

15 In January 1983 the plaintiff says that the parties commenced cohabitation at Hoxton Park Road.

16 During 1983 the plaintiff arranged for the installation of a swimming pool, the construction of a double garage, and landscaping at Hoxton Park Road.

17 On 11 April 1983 the plaintiff purchased vacant land at North Arm Cove, for the sum of $5,950.00.

18 On 21 October 1983 a daughter, Amba, was born to the parties.

19 On 22 August 1986 Vic Milevsky Marketing Pty Limited (the company) was incorporated. The plaintiff was appointed a director and was issued with 95 A class shares and 4 redeemable preference shares. The defendant was appointed a director and secretary, and issued with one redeemable preference share. It was common ground that it is, and has always been, conducted as the alter ego of the plaintiff. It is a vehicle for the plaintiff to earn his salary as a commission salesman and is a holder of investments. It does not trade in its own right.

20 On 9 June 1987 the plaintiff purchased the property at No. 14 David Street, Wentworth falls for the sum of $12,000.00.

21 On 22 March 1988 the plaintiff purchased the property at Lot 3 Wattle Street, Colovale for the sum of $11,700.00.

22 On 11 February 1989 the defendant sold Kendall Street to her daughter, Pamela, and her husband for the sum of $60,000.00, said to be two thirds of its value and to be shared between Scott and Derek Carson.

23 In May 1989 the parties separated. The plaintiff remained living at Hoxton Park Road. The defendant and Amba went to live elsewhere. Subsequently there were proceedings in the Family Court of Australia for orders for custody of, and access to, Amba, for maintenance, and for property, and in this Court for orders for property, and in a Local Court for maintenance.

24 On 23 June 1989 the defendant’s share in the company was redeemed, and she resigned as an office holder.

25 In about 1991 the defendant purchased the property at No. 16 Malloy Street, Mollymook. The details of the transaction are uncertain.

26 On 11 June 1991 the plaintiff sold Lot 29 Genevieve Road, Bullaburra for the sum of $92,000.00. He deposited the net proceeds of $80,878.87 into the company’s Westpac account.

27 In December 1992, according to the defendant, the parties resumed cohabitation. This is disputed by the plaintiff who says this happened in May 1993.

28 On 21 December 1993 the plaintiff purchased the property at Lot 6 Panorama Road, St George’s Basin for $75,000.00 and subsequently built a house there.

29 On 18 October 1994 one redeemable preference share in the company was transferred to the defendant.

30 On 23 November 1994 the plaintiff sold Lot 8 Greens Road, Greenwell Point for the sum of $85,000.00. The proceeds were deposited in an account of the company.

31 On 27 January 1995 the defendant sold No. 16 Malloy Street, Mollymook.

32 On 29 March 1996 the plaintiff sold Lot 24 Paris Parade, Katoomba for the sum of $110,000.00. He deposited the net proceeds of $104,326.19 into a Citibank Mortgage Power account.

33 In October 1996 the defendant deposited a termination payment in the sum of $12,200.00 into a joint St George Bank account.

34 During 1997 the parties commenced a business venture under the name “Doorcam”, the funding for which was provided by the company. The venture failed and it ceased in about 1999.

35 In March 1998 the plaintiff and the defendant purchased, as joint tenants, Macquarie Links, then vacant land, for the sum of $195,000.00. The purchase was financed by funds borrowed by the plaintiff from the company.

36 On 24 March 1998 the plaintiff sold No. 14 David Street, Wentworth Falls for $137,500.00. The proceeds were deposited in an account of the company.

37 On 7 May 1998 the plaintiff sold Lot 25 Paris Parade, Katoomba for $120,000.00.

38 In July 1998 the plaintiff borrowed $300,000.00 from the company for the purpose of the construction of a home at Macquarie Links.

39 On 24 July 1998 the plaintiff sold Lot 3 Wattle Street, Colovale for $119,500.00. The proceeds were deposited in an account of the company.

40 In February 1999 the plaintiff borrowed the sum of $42,516.00 from the company to purchase furniture for the house at Macquarie Links.

41 On 11 March 1999 the defendant resigned as a director and secretary of the company.

42 On 22 March 1999 the plaintiff sold Hoxton Park Road for the sum of $242,000.00. The proceeds were deposited in an account of the company.

43 In July 2000 the plaintiff sold the property at Lot 6 Panaroma Road, St George’s Basin for the sum of $385,000.00. The proceeds were deposited in an account of the company.

44 On 4 August 2000 the company purchased the property at No. 4 Mitchell Parade, Mollymook for the sum of $406,000.00.

45 On 19 November 2001 the parties separated and the plaintiff left Macquarie Links to live elsewhere.

46 On 7 December 2001 the defendant’s preference share in the company was redeemed.

47 In July 2002 Amba Milevsky as trustee of the AMI Trust purchased a home unit at 2/8-10 Bigge Street, Liverpool (Bigge Street) for the sum of $330,000.00. The purchase was financed by a mortgage for $270,000.00 and a loan from the company of $60,000.00. The defendant and Amba are presently living there. The defendant controls the AMI Trust and arranged the purchase.

Principles

48 The relevant provisions of the Act are:

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

      “Property” is defined in s 3(1) except insofar as the context or subject-matter otherwise indicates or requires, as follows:
          “"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”.

      …
      "Financial Resources" is defined in s 3(1), in relation to parties to a domestic relationship or either of them, includes:
              “(a) a prospective claim or entitlement in respect of a scheme, fund or arrangement under which superannuation, retirement or similar benefits are provided,
              (b) property which, pursuant to the provisions of a discretionary trust, may become vested in or used or applied in or towards the purposes of the parties to the relationship or either of them,
              (c) property, the alienation or disposition of which is wholly or partly under the control of the parties to the relationship or either of them and which is lawfully capable of being used or applied by or on behalf of the parties to the relationship or either of them in or towards their or his or her own purposes, and
              (d) any other valuable benefit”.
      Section 5(1) provides:
          “5 Domestic relationships
          (1) For the purposes of this Act, a domestic relationship is:
              (a) a de facto relationship, or
              (b) a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care”.

49 In Powell v Supresencia [2003] NSWCA 195; (2003) 30 Fam LR 463 Sheller, JA explained the matters for a court’s consideration:

          “8. Section 20(1)(a) is directed to financial and non-financial contributions to the acquisition, conservation or improvement of the property of the parties or either of them or to their financial resources (compare s79(4)(a) and (b) of the Family Law Act ). Section 20(1)(b) is substantially concerned with contributions to the welfare of the other party or of the family constituted by the parties.

          9. On an application to adjust interests with respect to property the Court is empowered to make such order adjusting the interests of the parties in the property “as to it seems just and equitable” but having regard to the financial and non-financial contributions described in para (a) and the contributions described in para (b).

          …
          12. His Honour regarded it as important that the Court, in the exercise of the power given, gave effect according to its terms to the social judgment which s20 embodied even though that might not accord with the views of some. The consequence Mahoney JA expressed as follows at 13F:
              “It follows from this that, in determining whether an order should be made and what that order should be, the Court is, in the sense to which I shall refer, constrained by what have been the ‘contributions’ of the parties and the balance between them. The term ‘contributions’ has the meaning to which I have referred: it extends not merely to financial and non-financial contributions to property but to the more general contributions referred to in s20(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 the particular case.”
          …
          24. Nor, compared with s75(2)(o) of the Family Law Act , was there anything which required or entitled the Court to take into account as a factor along side those referred to in paras (a) and (b), “any fact or circumstance which, in the opinion of the Court, the justice of the case requires to be taken into account”.
              “Most importantly, s20 specifies, in par (a) and par (b), the matters to which the court is to have regard. As was pointed out above, those matters will ordinarily have to be considered, and a judgment as to what is just and equitable having regard to those matters will ordinarily have to be made, in a context, and that context may well include factors of the kind referred to by Hodgson J at first instance in Dwyer v Kaljo . However, par (a) and par (b) prescribe the focal points by reference to which the discretionary judgment as to what seems just and equitable must be made. They are not merely two matters, or groups of matters, which take their place amongst any other relevant considerations. It is by having regard to those matters that the court may adjust property interests in a just and equitable manner.”
          25 An orderly approach to the determination of an application under s20 is first to concentrate on those focal points and identify the contributions under para (a) to the acquisition, conservation or improvement of any property of the parties or either of them or to the financial resources of the parties or either of them and the contributions under para (b) made in the capacity of homemaker or parent by either of the parties to the welfare of the other party or to the welfare of the family constituted by the parties and, in this case, the child of the parties. In Farmer v Bramley (2000) Fam CA 165, Guest J at paras 186 and 188 pointed out that the equivalent in the Family Law Act of para (b) in the Act avoided the requirement to establish a direct or indirect nexus between property and the contribution to the welfare of the family. The homemaker contribution should be valued whether or not one could trace a connection with particular assets or demonstrate that the homemaker contribution represented an indirect contribution to the assets accrued or preserved in the course of the parties’ cohabitation.
          26 An assumption of equality in value between financial contribution and welfare contribution is not always appropriate: Mallet v Mallet (1984) 156 CLR 605. However in that case at 625 Mason J said:
              “Thus, the court must in a given case evaluate the respective contributions of husband and wife [under the relevant paragraphs] difficult though that may be in some cases. In undertaking this task it is open to the court to conclude on the materials before it that the indirect contribution of one party as homemaker or parent is equal to the financial contributions made to the acquisition of the matrimonial home on the footing that that party’s efforts as homemaker and parent have enable [sic] the other to earn an income by means of which the home was acquired and financed during the marriage. To sustain this conclusion the materials before the court will need to show an equality of contribution – that the efforts of the wife in her role were the equal of the husband in his. No doubt a conclusion in favour of equality of contribution will be more readily reached where the property in issue is the matrimonial home or superannuation benefits or pension entitlements and the marriage is of long standing. It will be otherwise when the property in issue consists of assets acquired by one party whose ability and energy has enabled the establishment or conduct of an extensive business enterprise to which the other party has made no financial contribution and where that other party’s role does not extend beyond that of homemaker and parent.”
          27 The task of identification and valuation complete, the Court comes to consider whether it should adjust the interests of the parties in the property in such manner as to the Court seems just and equitable having regard to the contributions identified within paras (a) and (b) and other factors of the kind identified by Hodgson J.
          …
          74. The critical question to be resolved in this matter is whether having regard to the financial contributions made by or on behalf of the parties to the acquisition, conservation or improvement of any of the property of the parties or to the financial resources of the parties and the contributions made in the capacity of homemakers or parents to the welfare of the family constituted by the parties, their interests with respect to their property should be adjusted taking account of the justice and equity of the matter. One way of approaching this question is that adopted by the Chief Justice and Chief Judge in Equity in Evans v Marmont at 85 when their Honours said:
              “To put the matter slightly differently, the assets which the respondent brought to the relationship in 1977 do not account for the extent of the disparity between their respective assets at the end of the relationship.”

50 In Green v Robinson (1995) 36 NSWLR 96 at p 119 Cole, JA said:

          “However, even such a second meaning is inadequate if it is intended to convey that only one person in a household may be responsible for the creation or maintenance of such a welcoming ambience for it is clear, in my view, that each party to a relationship, be it of marriage or of a de facto relationship, may contribute to the homemaking in which that relationships subsists. Parties to the relationship may, depending upon their various capacities, skills, inclinations, interests, available time and other factors, contribute significantly to the making of a home. The concept of "homemaker" or "making of a home" has a different and wider connotation than housekeeping or maintaining a house. It involves the creation of an emotional ambience of stability.
          To take but three examples. A person, not infrequently the male in the relationship, may have skills related to home improvements which are exercised for the mutual advantage of the parties in the relationship. That is an aspect of home making for it permits the more pleasant enjoyment of the domestic relationship. To similar effect, a person, most frequently the female in the relationship, may practice cooking and decorating skills which also are aspects of homemaking for they similarly lead to a comfortable and welcoming ambience in the home in which the parties in the relationship live. And each, both the male and female partners, may bring to the relationship aspects of stability, and attitudes of tolerance and understanding critical to the creation of a home. It is important to recognise that contributions as a homemaker may be qualitative as well as quantitative, and that a lesser quantitative but higher qualitative contribution may be of equal or even greater importance and value to the relationship and the partners and children than a seemingly greater quantitative contribution.
          The width of aspects of contribution, and in some instances the amorphous qualities which a party may bring as his or her contribution as a homemaker to a relationship, highlights the difficulty of trying to quantify in precise money terms the contribution of each party. It lends emphasis to the need for the Court in most instances to exercise a significant element of judicial assessment in determining whether it is just and equitable that a property adjustment be made”.

The relationship

51 It is common ground that between 1978 and January 1983 the parties were in a relationship, and thereafter until May 1989 were in a de facto relationship for the purposes of the Act.

52 The plaintiff contends that prior to January 1983 the relationship was intermittent and neither party considered it to be permanent. His evidence was that the parties cohabited for periods which varied from a night or a week, and up to two to three months, and that they were separated for similar, irregular periods. He accepts that the defendant and her children came to live with him after the house at Hoxton Park Road was built, and were there when he returned from hospital in July 1979. He also accepts that whilst they were together she cooked meals and shared domestic duties. He said, in effect, that he undertook the financial burden of maintaining the household, and agreed that theirs was an exclusive relationship.

53 On the other hand, the defendant’s evidence was that she and her children moved into the house upon its completion in July 1979, and that the sons moved out after about a year, and her daughter in about 1980. She said that both she and the plaintiff believed the relationship was permanent although there were disputes concerning her children, and a number of periods of separation. She says that during the period she was employed, and contributed to household costs from time to time.

54 I was not persuaded that the evidence of either party on this issue was wholly reliable. Nevertheless there was much in common which pointed to the existence of a close domestic relationship and mutual commitment which developed from at least the time when the house was occupied. The conflict should be resolved with reference to other objective and independent evidence.

55 Pamela Boyle’s evidence was that the defendant began living with the plaintiff when she was about 12 years old (1978) and that their intention was to live together at Hoxton Park Road upon completion of the house. She said that she lived there with the parties and her brothers for about two years, then moved away for about one year. She returned to live with the parties and was there when Amba was born in 1983. She left school in mid-1983 and paid board to the plaintiff after obtaining a job about five months later. (She did not finally move out until 1987). She was a truthful witness and I accept her evidence.

56 Also before the court was the admission summary sheet of the Royal North Shore Hospital with details of the plaintiff’s hospitalisation in July 1979 for his back injury. It records the defendant as a person for notification. She is described as a close friend and the telephone number is the one for Hoxton Park Road. I note also that in the access proceedings between the parties in this Court, No. 5192/89, in his judgment of 17 December 1987 Young, J said:

          “… The exact relationship between the plaintiff and the defendant prior to 1978 is unclear, but they lived together as man and wife for some years after that date and the relationship from time to time was a very stormy one”.

57 In my opinion it is probable, and I find, that a relevant domestic relationship commenced in about July 1979 when the parties began to cohabit at Hoxton Park Road. That is the substance of Mrs Boyle’s evidence, which is consistent with the other independent evidence. Furthermore, it is plain that there is much in common between the parties as to the commencement of cohabitation and the nature of the relationship thereafter.

58 Even if it be accepted that the defendant’s sons moved out after a short time, Pamela became one of the household and on the plaintiff’s account he provided most, if not all, of the money which supported and maintained it. It is also reasonable to infer from the fact that on a number of occasions cohabitation was resumed after a separation that there was throughout an underlying commitment to each other to live together as man and wife.

59 Upon taking an overall view of the parties’ association over the whole of the period from about July 1979 to January 1983, and allowing for periods of separation, I find that there was in fact a de facto relationship for this period.

60 There is also a dispute as to the commencement of the second period of de facto relationship, that is to say, whether it began in December 1992 (as claimed by the defendant) or in May 1993 (as claimed by the plaintiff). Although in my opinion the difference is of negligible significance having regard to the aggregate period of the relationship I find that May 1993 was probably the time of commencement.

61 The following considerations provide support this finding. The defendant commenced proceedings in the Common Law Division in No. 4584/91 in which she claimed orders against the plaintiff for adjustment of property. The statement of claim was filed on 6 May 1992 and the defence was filed on 6 April 1993.

62 The defendant filed an affidavit of 10 March 1993 in those proceedings in which she gave her address at Mount Pritchard, and swore that she was receiving maintenance from the defendant, and was paying rent. In cross-examination she said she was not in fact living at the address given, but continued to pay rent for it. She agreed that it was untrue to say she was receiving maintenance from the defendant.

63 The plaintiff filed an affidavit of 19 April 1993 in those proceedings as to his assets and liabilities, in which he referred to a weekly maintenance payment of $115.00 for Amba. In his evidence in the present proceedings he said that, as a result of discussion between them, the defendant agreed that she and Amba would return to live with him, he would pay her costs, and she would discontinue the proceedings. He said that reconciliation took place in May 1993 on the same day as a hearing in the Court.

64 There was no further evidence about the litigation except that it was discontinued by the defendant on 4 August 1993.

65 I find the defendant’s version to be implausible, and I reject it. I simply do not accept that the parties would have sworn and filed the affidavits, and that a defence would have been filed, if the parties had in fact reconciled some months earlier. I accept the plaintiff’s evidence, and find that cohabitation resumed in the circumstances described by him in May 1993.

66 Accordingly, the de facto relationship is to be taken to have existed from July 1979 to May 1989 and from May 1993 until 19 November 2001. For the purposes of s 20(1) the court must take into account the aggregate of the periods during which the parties lived in such a relationship. Thus it is necessary for the contributions made by a de facto partner to be assessed by reference to the entire period of the de facto relationship, irrespective of whether it is made up of a series of broken or intermittent periods or whether it is constituted by one continuous period of cohabitation. (Jones v Grech [2001] NSWCA 208; (2001) 27 Fam LR 711 paras 74, 76).

67 It is also necessary to take into account contributions made before the de facto relationship commenced and those made thereafter (Jones, para 82). In this case no issue arose about contributions made prior to commencement, but contributions made after 19 November 2001 require consideration.

The property of the parties at the commencement of the relationship in July 1979

68 The value of the plaintiff’s assets at the time of commencement of cohabitation in July 1979 is unknown. The value attributed to each is the plaintiff’s estimate at May 1983 which was not challenged. The assets were:


      (1) The property at Hoxton Park Road subject to mortgage.

      (2) The unencumbered properties at No. 25 Paris Parade, Katoomba ($10,000.00), Greenwell Point ($50,000.00), and Bullaburra ($10,000.00).

      (3) A motor vehicle, the Hoxton Park Road furniture, and savings ($5,000.00).

69 The defendant owned the property at Kendall Street the value of which she estimated to be $30,000.00 subject to mortgages for the sum of $24,000.00. It was tenanted. The rent received was used to pay off the mortgages.

The property of the parties at the first separation in May 1989

70 The plaintiff’s assets as at May 1989 are listed hereunder. There were no valuations.


      (1) The property at Hoxton Park Road and its furniture.

      (2) The properties at No. 25 Paris Parade, Katoomba, Greenwell Point, Bullaburra, No. 24 Paris Parade, Katoomba, North Arm Cove, Wentworth Falls, and Colovale.

71 The defendant sold Kendall Street on 11 February 1989 to her daughter for the sum of $60,000.00.

The property of the parties at the recommencement of the relationship in May 1993

72 The plaintiff’s assets as at May 1993 were as follows:


      (1) The property at Hoxton Park Road and its furniture.

      (2) The properties at No. 25 Paris Parade Katoomba, Greenwell Point, Bullaburra, No. 24 Paris Parade Katoomba, North Arm Cove, Wentworth Falls, and Colovale.
          (The property at Bullaburra was sold on 11 June 1991 for the sum of $92,000.00 which was deposited in an account of the company).
      (3) The properties referred to in para (2) were included in Schedule H to the plaintiff’s final submissions to which the submissions for both parties were directed. However, additional property transactions were referred to in the plaintiff’s affidavit of 15 April 2003 (para 48).
          (a) In late 1987 Lot 145 Meakins Street, Tuross Head was purchased, and sold in about March 1991.
          (b) In late 1987 Lot 3 Stanley Terrace, Moss Vale was purchased, and sold in April 1995.
          (c) In November 1998 Lot 11 Telopea Street, Hilltop, then vacant land, was purchased for the sum of $9,400.00 and sold in about July 1999 for the sum of $98,859.60.

73 The defendant owned the property at No. 16 Malloy Street, Mollymook.

The property of the parties at the final separation on 19 November 2001

74 Hereunder are listed the assets, liabilities, and resources of the parties as at 19 November 2001. Unless otherwise indicated the amounts are agreed.


      Assets

      (1) Macquarie Links
      jointly owned
      $540,000.00
      (2) Furniture
      jointly owned
      $22,153.00
      (3) Shareholdings
      (plaintiff’s estimate)
      jointly owned
      $5,000.00
      (4) North Arm Cove
      plaintiff’s asset
      $5,500.00
      (5) Shareholding in the company
      plaintiff’s asset
      $259,826.00 (disputed)
      (6) Loan from plaintiff to the company
      plaintiff’s asset
      $98,169.00
      (7) Interest payable on loan from plaintiff
      plaintiff’s asset
      $8,464.00


      Liabilities

      The liabilities were only those of the plaintiff.
      (1) Credit cards
      $35,160.00 (disputed)
      (2) St George Bank: personal loan
      $7,500.00


      Financial resources

      (1) Vic Milevsky Marketing Executive Superannuation Fund
      plaintiff’s interest
      $136,408.00
      (2) Vic Milevsky Marketing Executive Superannuation Fund
      defendant’s interest
      $9,353.00
      (3) Other superannuation entitlements of the defendant
      $8,000.00

75 In final submissions counsel referred to an item “Harvey Norman Furniture” valued at $7,500.00. (T p 346). It was suggested that the solicitors had reached agreement about it, but no further reference was made to it. In the circumstances I propose to ignore it as the evidence does not enable a finding to be made about it.

76 There is a dispute about the amount of the plaintiff’s credit card liabilities at separation. He claims the sum of $35,160.00 on a number of separate accounts. The defendant accepts he had a liability to Citibank of $5,037.50 (Ex C) but disputes a greater sum.

77 The plaintiff was cross-examined and accepted that his claim could be wrong (T p 73). The statements accepted as necessary to prove the claim were not in evidence although opportunity was given to locate and produce them (T pp 99-100). However, there was evidence in Exhibit B para 13 (admitted without objection and unchallenged) that following separation he paid credit card debts in the total amount of $24,800.00 which did not include the Citibank debt. I accept that evidence. (I disregard the evidence in para 30 of the exhibit of a payment in November 2002 as too remote).

78 Accordingly I find that the plaintiff’s credit card liability at separation was the amount of $29,837.50.

79 There was also a dispute as to the valuation of the shareholding in the company. The plaintiff contends that it is $259,826.00, and the defendant contends it is $279,376.00, a difference of $19,550.00.

80 The plaintiff’s figure is the valuation of Brian John Pickup whose report was in evidence. His valuation method was on a net asset backing basis. He was not cross-examined. The basis for acceptance of the defendant’s figure was not established. I accept the plaintiff’s valuation of $259,826.00.

81 The defendant contended that account should be taken, as a financial resource of the plaintiff, of the claims by him and the company in proceedings No. 7925/00 in the District Court. In those proceedings the plaintiff claims $204,000.00 and the company $367,700.00 against one George Tsovaras and others for damages on various counts. The proceedings were commenced on 11 October 2000 and are defended, there is also a cross-claim. In my opinion the claim should be disregarded. Any valuation of them is speculative. One cannot gauge prospects of success, or of recovery if the plaintiff succeeds, or of past and future costs of the proceedings. Significantly, Mr Pickup’s evidence, unchallenged, was that it would be impossible to value the company’s interest in the litigation.

82 Accordingly I find that:


      (1) The total value of the assets of the parties at separation is $939,112.00.

      (2) The total liabilities of the plaintiff at separation is $37,337.00.

      (3) The total value of the financial resources of the parties at separation is $153,761.00.

The property of the parties at trial August/September 2004

83 Hereunder are listed the assets, liabilities and resources of the parties as at the trial. Unless otherwise indicated the amounts are agreed.


      Assets

      (1) Macquarie Links
      jointly owned
      $780,000.00
      (2) Furniture
      jointly owned
      $22,153.00
      (3) North Arm Cove
      plaintiff’s asset
      $8,000.00
      (4) Shareholding in the company
      plaintiff’s asset
      $623,639.00 (disputed)
      (5) Loan to plaintiff from the company
      plaintiff’s asset
      $121,885.00


      Liabilities

      The liabilities were only those of the plaintiff:
      (1) St George MasterCard
      $400.00
      (2) St George Personal Loan
      $3,500.00

      Financial resources

      (1) Vic Milevsky Marketing Executive Superannuation Fund
      plaintiff’s interest
      $138,353.00
      (2) Vic Milevsky Marketing Executive Superannuation Fund
      defendant’s interest
      $11,299.00
      (3) Other superannuation entitlements of the defendant (AMP):
      $8,577.08

84 There is a dispute as to the valuation of the shareholding in the company. The plaintiff contends the valuation is $623,639.00 whilst the defendant contends it is $937,971.00 a difference of $314,332.00.

85 The defendant submits that it is erroneous to take into account as a liability the item for tax in the sum of $222,332.00 applicable upon the sale of the Mollymook property and that this amount should be added to the final valuation of the company at trial. It is noted that Mr Pickup says that the tax on the gain is based on the property being sold at valuation. I accept the defendant’s submission. In my opinion for the purposes of valuation at the specified time it is irrelevant to take into account a liability which has not, and may never be, incurred. Accordingly, the valuation should be adjusted by increasing it by that amount. I will proceed on the basis that the valuation of the shareholding at trial is $845,971.00.

86 The defendant also submitted that some account should be taken of the fact that one of the two Citibank loans recorded in the valuation of the company as at separation, and at trial, was secured by Macquarie Links. Counsel for the defendant said he was not sure which of the loans was so secured (T p 350) although it seems to have been agreed that the property secured both loans. Beyond asking that this factor be taken into account when considering the extent of any adjustment to be made, no particular finding was sought relevant to the valuations of the company.

87 I note that the defendant gave some evidence as to ownership of shares in listed companies such as IAG Ltd, Boral Ltd and Origin Energy Ltd, and on her behalf reference was made in final submissions to the parties’ shareholdings. As I was taken to no evidence upon which any relevant finding could be made, and as the parcels of shares were small, I propose to disregard such holdings by either party in making a determination in these proceedings.

88 Accordingly I find that:


      (1) The total value of the assets of the parties at trial is $1,778,000.00.

      (2) The total liabilities of the plaintiff at trial is $3,900.00.

      (3) The total value of the financial resources of the parties at trial is $158,229.00.

      Financial contributions of the parties

89 It is undisputed that the plaintiff has paid all mortgage instalments in respect of Hoxton Park Road and Macquarie Links. Subject to some, although not clearly identified, exceptions, he also paid the ordinary outgoings and expenses for the operation and maintenance of these properties including rates, insurance, electricity, and the like.

90 It is also undisputed that the defendant made no contributions to the relationship from the proceeds of the rent and sale of Kendall Street, or from the sale of No. 16 Malloy Street, Mollymook.

91 The plaintiff’s evidence (which I accept) was that during the years 1978 to 1983 he worked as a commission salesman, usually six days a week with one day off. From the evidence as to his general work pattern I infer that he worked similar hours until May 1989. From 1993 to 1995 the plaintiff was working full-time as a salesman. From 1995 until the trial he was employed by the company which subcontracted his services as a salesman to property developers. I am satisfied that his earnings were directed to the acquisition of the parties’ assets and their financial resources.

92 During the period from about May 1993 until November 2001 it was the practice of the plaintiff to deposit into the joint account about $700.00 net per fortnight from her earnings. For his part, the plaintiff deposited into this account from his earnings about $2,000.00 per month increasing over the years to about $4,000.00 per month. From this account payments were made for the day-to-day expenses of the household including food and clothing. Also from this account were paid expenses unrelated to the household such as rates for the properties at St George’s Basin and North Arm Cove. From this account payments were also made for the mortgage over the defendant’s property at Mollymook between May 1993 until it was sold on 27 January 1995. These payments were repaid from the proceeds of the sale.

93 As earlier noted, the company has been conducted as the alter ego of the plaintiff. It is common ground that it is appropriate to include particulars of its income with those of the parties. The evidence provided the following particulars of income.

      Year ending Victor Milevsky Vic Milevsky Marketing Pty Ltd Pamela Carson
      (Milevsky)
      1993 $27,069.00 ($3,310.00) $25,414.00
      1994 $31,126.00 ($2,259.00) $27,880.00
      1995 $21,899.00 ($21,007.00) $23,992.00
      1996 $12,099.00 ($33,036.00) $22,330.00
      1997 $23,142.00 $106,402.00 $25,983.00
      $15,000.00 of which was derived from VMM Pty Ltd
      1998 $45,630.00 $71,312.00 $29,050.00
      $20,000.00 of which was derived from VMM Pty Ltd
      1999 $19,585.00 $1,795.00 $19,363.00
      $19,500.00 (sic) of which was derived from VMM Pty Ltd
      2000 $36,251.00 $1,554.00 $16,905.00
      2001 $49,727.00 $1,918.00 -
      Total $266,528.00 $123,369.00 $190,917.00

94 Since separation the defendant has lived at Macquarie Links and the plaintiff elsewhere. He has been living with his daughter at Bigge Street since about July 2002. The defendant pays her ordinary living expenses, including building insurance, rates, electricity and telephone charges. She uses the household furniture.


      Homemaking and parenting contributions

95 The aggregate period of the relationship was over eighteen years. It is accepted that during the relationship the defendant was the primary homemaker. For the most part she carried out the domestic work including cooking, cleaning, washing and some gardening. The plaintiff frankly acknowledged that by reason of the time he spent at work he did little, if any, domestic work. From time to time he did some gardening. I am satisfied that when the parties were together they were working hard, and each contributed according to ability and opportunity which, in the plaintiff’s case, was very limited by his work commitments. In final submission it was acknowledged that the defendant’s contribution as a homemaker was generally superior to the plaintiff’s.

96 It is common ground that the defendant was the primary carer for Amba from the time she was born until she left Macquarie Links in early 2002 at the age of eighteen. The plaintiff also accepts that the defendant acted as sole parent during the periods of separation. He acknowledged that caring for Amba would be a full-time job and that if he was to care for her during these periods he would have been obliged to cease working as a salesman. Both parties accepted that each was a good parent towards Amba and that she was well cared for.

97 The defendant gave evidence of the extent of her care for Amba during periods of separation for a few days in November 1984, October 1985, January 1987 and one from May to 25 December 1987, and another for four years from May 1989 to May 1993. During these periods they stayed with different relations of the defendant from time to time.

98 During the last mentioned period the defendant was sole carer for Amba except when the plaintiff exercised rights of access. The defendant arranged for her to be at school whilst she was at work, after which she would take her home. She attended school activities in which Amba was involved, and arranged tennis, art, and swimming lessons. It was necessary for the defendant to arrange and pay for care before and after school in order for her to continue working. She says that expenses associated with Amba were about $180.00 per week which were paid by her and from the weekly maintenance of $80.00 received from the plaintiff.

99 There are some matters which arguably might be reported as being within s 20(1)(a) as final contributions made indirectly by the defendant to fund resources of the parties. In my opinion it is preferable to treat them as contributions to the welfare of the family within s 20(1)(b). I refer to the following matters.

100 From about 1979 until about September 1983 the defendant was employed as a receptionist and, later, as an office manager. Most of her earnings went in support of her children. Some went for the benefit of the household. The financial details were not available.

101 Amba was born on 21 October 1983. The defendant returned to work during 1984 as a receptionist in a medical practice. Although it is unclear, it seems that she was similarly employed between 1985 and May 1989 from time to time, sometimes part-time, and sometimes full-time. The amount of her earnings was not quantified. Nevertheless, the plaintiff accepted that the income earned by the defendant from such work was applied in its entirety for the benefit of the family.

102 During the early part of the relationship the parties kept separate their financial affairs. There was some evidence (T p 91) that in 1983 there was in existence an arrangement that she provided the food in return for accommodation. On 12 November 1987 a joint account in their names was opened with St George Bank.

103 After reconciliation in May 1993, the defendant worked until about 1997 as a part-time receptionist. From some time in 1997 until 1999 she was employed by the company to carry out occasional tasks such as attending to the banking, and to telephone calls, for which she was paid. During this period she and the plaintiff endeavoured to establish a business known as “Doorcam” for which either the plaintiff or the company provided funds of about $40,000.00. It failed within about two years.

104 The plaintiff’s work pattern is described in para 91 above. He acknowledged that from the time of reconciliation in May 1993 until final separation he worked six, and sometimes seven, days per week. He said that after he was employed by the company he worked eight or nine hours a day, sometimes longer at weekends. Thursday was his usual day off.


      The claim for $1,500.00

105 The defendant claims that she contributed the sum of $1,500.00 towards the purchase price of Hoxton Park Road in 1978. She asserted that her recollection was that the purchase price was $15,000.00, and that in late 1978 construction of the house was completed whereupon cohabitation commenced.

106 The claim is denied by the plaintiff who was not pressed in cross-examination. There was no record of the payment.

107 I do not accept the defendant’s evidence on this issue as it was shown in cross-examination to be unreliable (T pp 135-143) and inconsistent with facts otherwise established. The evidence shows that the price was $17,200.00 and the property was transferred on 22 March 1978. The house was not completed until June 1979 and cohabitation began in July 1979. Her evidence is also inconsistent with the verified allegations made in her statement of claim in proceedings No. 4584/91 in the Common Law Division that funds “… for the purchase and construction of the land and home were provided by both the defendant and the plaintiff”. I reject the claim.


      The claim for $32,000.00

108 The plaintiff claims that the company lent the defendant the sum of $32,000.00 on 22 January 1999 for her to lend on to her son Scott Carson. He says payment was made by two cheques, and the loan remains unpaid. The defendant accepts she received the cheques and paid the proceeds to her son. The claim is also the subject of proceedings brought by the company against the defendant in the Local Court, Campbelltown. Both parties agree that if this transaction is taken into account in these proceedings the Local Court claim will be finalised (T p 185).

109 The defendant asserts that the loan has been repaid but provides no evidence in support. Furthermore, in para 9 of her amended defence and cross-claim she pleads merely that the claim is not admitted, and no defence of payment is raised. On the evidence I find that the loan as claimed was made to the defendant, and remains unpaid. The amount of the claim including interest, which is not disputed, is $46,660.00.


      Macquarie Links

110 In March 1998 the plaintiff and the defendant purchased Macquarie Links, then vacant land, for the sum of $195,000.00. The property was registered in their names as joint tenants. The purchase price was provided by the plaintiff from monies borrowed from the company. In July 1998 he borrowed $300,000.00 from the company to pay for the construction of a house on the property. The defendant has made no financial contribution towards the acquisition or improvement of the property.

111 In his defence to the cross-claim, the plaintiff pleaded that he agreed to purchase the property in joint names relying upon the defendant’s promise that she would make a non-revocable will leaving her entire estate (sic) to Amba. In his affidavit of 15 April 2003 (para 66) he says that prior to the purchase he had a conversation with the defendant in which he said to her:

          “The only way that I’ll put your name on the deeds is if you agree to leave your half to Amba in a Will, I don’t want your kids getting anything that I have worked for, they’ve got enough off me”.

      He says she accepted this proposal.

112 He said that he instructed his solicitors to proceed with the purchase in joint names, and to prepare a document which recorded the agreement. He says the contract was signed before the document was ready, and subsequently the defendant stated her refusal to sign anything.

113 The defendant denies that there was any understanding or agreement between them concerning her interest in the property, and she was not pressed in cross-examination to the contrary (T p 197). She denied that it was agreed that they would make wills which would leave their respective interests in the property to Amba.

114 Having regard to the history of the relationship prior to the time of the purchase, which includes the various proceedings between each other during periods of separation, I have no doubt that had the plaintiff intended that the defendant’s interest should be in some way limited or conditional he would not have arranged the transfer of the property to them as joint tenants without first obtaining a binding acknowledgement from the defendant which reflected such restriction. This he did not do. Furthermore, in these proceedings the plaintiff did not, as was open to him to do, plead that the defendant held her share upon trust for him. In final submissions his counsel stated that it was not suggested that her interest was held subject to any enforceable agreement (T p 252), and did not argue that she was not the beneficial owner of an undivided half-share in the property.

115 Taking all these matters into consideration I accept the defendant’s evidence that there was no relevant understanding or agreement. Accordingly I find that the plaintiff intended to give the defendant a beneficial interest in the property so that she would become the legal and equitable owner of an undivided half-share in it notwithstanding she made no financial contribution to its acquisition (cf: Jones paras 17, 28, 90-92). Having regard to the fact that prior to the time of purchase the defendant lacked any financial resources to make a financial contribution otherwise than towards everyday household expenses I infer that it was the common intention and expectation of the parties that the plaintiff would pay for the purchase of the property and, later, the costs of construction of their home there.


      Discussion

116 The plaintiff seeks orders that the defendant transfer to him her interest in Macquarie Links subject to the existing mortgage. Alternatively, he seeks orders that he pay to the defendant a sum of money as determined by the court, and that the defendant transfer to him her interest in Macquarie Links subject to the existing mortgage.

117 The defendant claims entitlement to the monetary equivalent of one half of the parties’ assets at trial. Ultimately, she seeks orders that the plaintiff transfer to her the whole of his interest in Macquarie Links clear of all mortgage debt, and that he pay her a sum of money so that the whole represents the value of one half of their assets at trial.

118 Both parties seek orders to the effect that each retain the property presently in his or her possession such as furniture, personal effects, shares, cash at bank, and superannuation.

119 For the plaintiff it is submitted that the proper order to be made by way of adjustment is that the defendant’s interest in Macquarie Links be transferred to him. In essence it is put that the value of the s 20(1)(b) contributions of the defendant by way of homemaking and parenting which enabled the plaintiff to pay off Hoxton Park Road and subsequently to buy and develop Macquarie Links should be set off against the value of benefits to her since separation, together with forgiveness of the loan of $32,000.00.

120 The amount of the loan, including interest, is $46,660.00. The plaintiff contended that, for the purpose of these proceedings, the unpaid loan should be treated as a benefit received by the defendant from the relationship and be taken into account in his favour on any adjustment. On the assumption that it was found that the loan has not been repaid it was not disputed that it was appropriate that it should be taken into account and, if so, the Local Court proceedings would be discontinued. I accept the plaintiff’s submission. With regard to s 19 of the Act which requires the court, so far as practicable, to make such orders as will finally determine the financial relationship between the parties and avoid further proceedings between them, I will take this item into account in the evaluation process.

121 The plaintiff led expert evidence, which was not challenged, that the market rental value of Macquarie Links for the period 19 November 2001 to 23 August 2004 was the sum of $71,421.00. It is put that allowance for one half of that sum namely $35,710.50 should be made in the plaintiff’s favour as his payment of the mortgage since separation has allowed her to enjoy occupation at no cost.

122 The defendant submitted that her contributions over the whole of the relationship should be valued at one half of the value of all of the parties’ assets at trial. I have found that the value at trial of these assets is $1,778,000.00. She seeks an order that an adjustment be made so that she receives the equivalent of one half of this valuation. This would be achieved by the plaintiff transferring to her his interest in Macquarie Links clear of all mortgage debt which is valued at $780,000.00, and the plaintiff paying her the sum of $109,000.00. It is put that such a result would be just and equitable having regard to the contributions made under ss 20(1)(a) and (b) of the Act.


      The adjustment to be made

123 The application of s 20 of the Act, including examination of the factors specified in ss 20(1)(a) and (b) requires consideration of the contributions of the parties throughout the aggregate period of their relationship and the period between separation and trial (Jones paras 24, 29, 30). The court is required to make an assessment in the exercise of a wide discretion. Particularly in circumstances where the relationship has been long and sometimes interrupted, and where much of the contributions cannot be quantified in monetary terms the value judgment will inevitably be an imprecise exercise.

124 In considering whether the court should adjust the interests of the parties in the property in such manner as seems just and equitable it is required to evaluate the respective contributions of the parties difficult though that may be in some cases. In Powell para 74 Sheller, JA stated:

          “74. The critical question to be resolved in this matter is whether having regard to the financial contributions made by or on behalf of the parties to the acquisition, conservation or improvement of any of the property of the parties or to the financial resources of the parties and the contributions made in the capacity of homemakers or parents to the welfare of the family constituted by the parties, their interests with respect to their property should be adjusted taking account of the justice and equity of the matter”.

125 It is accepted that throughout the relationship the plaintiff discharged the financial burden of providing and maintaining the homes at Hoxton Park Road and Macquarie Links, and that the acquisition of the assets held at separation and trial is attributable to his efforts. Since separation until trial (and, I infer, until judgment) he has paid the mortgage and other expenses for Macquarie Links. On the other hand, the evidence shows that prior to trial the direct financial contribution of the defendant to the properties was nil or negligible. Since separation she has been in occupation of Macquarie links for which she has paid to the plaintiff no fee or rent although she has been paying rates, building insurance, electricity and telephone charges.

126 In short the contributions under s 20(1)(a) to the acquisition, conservation, and improvement of the property of the parties and to their financial resources were made, and continue to be made by the plaintiff. I include as a component of these contributions the loan of $32,000.00 made on 22 January 1999.

127 However, in my opinion, it is not appropriate to treat as a contribution made by the plaintiff the benefit to the defendant of her occupation of Macquarie Links since separation. With regard to the claim in respect of the defendant’s occupancy, as I understand it, it is put that by continuing to pay off the mortgage the plaintiff has enabled her to remain in occupation, the benefit of which should be valued as a separate contribution equivalent to one half of the market rent for the property. In my opinion it is not appropriate to treat the defendant’s occupation as some separate contribution. It seems to me that benefit of occupation, if attributable to the payment of the mortgage, was enjoyed by the defendant both before and after separation, and appropriate weight should be given to that in recognising that at all times the plaintiff has made all the s 20(1)(a) contributions. Also, in my view, it is inappropriate to value her occupancy in a special way where I have found that the plaintiff intended to give her a half share in the property notwithstanding that he would pay the mortgage and where, in any event, the proceeds of the mortgage were intended for his own commercial purposes as well as for the purchase of Macquarie Links and the building of the home there.

128 Although it is clear that the plaintiff’s work pattern precluded him from spending much time as a homemaker and parent nevertheless some weight must be given to his role as such. It is accepted that he was a good parent to Amba during the relationship, and otherwise carried out domestic tasks for the welfare of the family at Hoxton Park Road and Macquarie Links.

129 In assessing the value of the defendant’s contribution as a homemaker and parent the court is required to measure its proper and substantial value having regard to all the circumstances. The approach to be taken in this case is similar to that adopted by White, J in Hughes v Egger [2005] NSWSC 18 para 160:

          “160 It is neither necessary nor appropriate to put a monetary value on the defendant’s contribution as a homemaker in order to reach an accounting balance. In Davey v Lee (1990) 13 Fam LR 688, McLelland J (as his Honour then was) said that rather than putting a monetary value on each alleged contribution to reach an accounting balance, the Court was required to make a holistic value judgment in the exercise of a very general discretionary power. The Courts are usually unable to say why contributions of a non-financial kind to the welfare of another party should be reflected in an adjusting order in any one particular sum rather than some other sum (eg Evans v Marmont at 85B and 97C; Powell v Supresencia (2003) 30 Fam LR 463; [2003] NSWCA 195 at [77], [78]). The criteria to guide a discretionary judgment are so general that in the final analysis, the outcome depends on the judge’s impression of a mix of factors whose weight cannot be exactly weighed”.

130 In my opinion it is not possible to assess the defendant’s contribution as a homemaker and parent in monetary terms. Nevertheless the evidence enables the following to be said about it.

131 The aggregate period of the relationship was about 18 years. The parties were separated between May 1989 and May 1993 during which Amba lived with the defendant away from Hoxton Park Road. Throughout the relationship the defendant was the primary homemaker and the primary carer for Amba until she attained the age of 18. For the periods of separation the defendant acted as Amba’s sole carer.

132 I have earlier described the extent of the defendant’s s 20(1)(b) contribution to the relationship (paras 94-98). In evaluating it it must be recognised that it enabled the plaintiff to work long hours in pursuit of his commercial interests. He accepted that had the defendant not been able to care for Amba as she did, he would have been obliged to give up his full-time work to care for her himself. Although it cannot be doubted that the acquisition of the assets and wealth of himself and the company are attributable to his skill and energy, I find that had he not been freed of the need and time to spend on the demands of homemaking and parenting his assets would have been much less.

133 Other conduct of the defendant which I have treated as within s 20(1)(b) requires consideration. She allowed Macquarie Links, in which she has a half interest, to be provided as security for borrowings to finance the property investments and operations of the plaintiff and the company, which has facilitated in a real way the accumulation of his and its financial resources. She also contributed towards the conduct and business of the company as a director and secretary after its incorporation on 22 August 1986 and, as a paid employee, provided some clerical assistance for several years from 1997. Thus I am satisfied that the contribution of the defendant better enabled the plaintiff to finance, improve, and maintain Hoxton Park Road and, thereafter, Macquarie Links. These aspects of her contribution should also be recognised in a substantial and not a token way (Mallett v Mallett (1984) 156 CLR 605 at p 625).

134 It is also relevant to take into account that prior to about May 1993 the defendant made payments from time to time towards household expenses, the details of which are unknown. From about May 1993 until separation she worked from time to time and from her earnings deposited about $700.00 net per fortnight into the parties joint bank account the funds of which were available for the payment of expenses not only for the household but for their respective properties. I find that throughout the various periods of her own employment she contributed her income to the upkeep of the family and the household. The total amount has not been quantified, but details of her income between 1993 and 1999 are set out in para 93.

Conclusion

135 When consideration is given to disparities between the extent of the assets of the parties as at the commencement of the relationship in July 1979, and at the recommencement of the relationship in May 1993, and at separation on 19 November 2001, and as at trial they support the finding that the defendant’s contributions overall should be seen as a significant factor in generating the present wealth of the plaintiff and the company. This is a matter to be taken into account in deciding what order should be made. Also relevant was the plaintiff’s intention that the defendant should not be required to contribute to the mortgage and expenses in respect of Macquarie Links.

136 I am not persuaded that the defendant’s s 20(1)(a) and (b) contributions should be valued as equal to the plaintiff’s s 20(1)(a) and (b) contributions so as to support an order that the property of the parties be divided equally between them. In my assessment the contribution of the plaintiff to the accumulation of the property of the parties as it was at both separation and trial must be given a somewhat higher value than hers. The conclusion is reinforced by recognising that some, not negligible, weight should be given to his role as a homemaker and parent.

137 It is also relevant in reaching a final judgment to take into account that the parties agree that no order should be made in respect of the interests of each in items of property and financial resources presently in his or her possession or control being cash at bank, furniture, personal effects, shares and superannuation entitlements. Both parties seek an order that each retain these items to the exclusion of the other.

138 At separation the unencumbered value of Macquarie Links was $540,000.00, and the total value of the assets was $939,112.00. At trial the unencumbered value of Macquarie Links was $780,000.00, and the total value of the assets was $1,778,000.00. In my opinion it is just and equitable that there be made an adjustment the effect of which is to provide the defendant with the unencumbered proprietorship of Macquarie Links or with a sum of money equivalent to its present value unencumbered.

139 Further, unless agreed, I propose to order the plaintiff to cause to be discontinued the proceedings for recovery of the loan.

140 In the circumstances the parties should be given the opportunity to bring in agreed short minutes of orders in accordance with these reasons. The orders should deal precisely with items such as furniture, superannuation, and other personalty for avoidance of doubt, as well as with any other matter which either party considers necessary to be dealt with for the final determination of their financial relationship.

141 I have not dealt with the question of costs and, absent agreement, the parties should have the opportunity to address me in relation to costs. Arrangements should be made with my associate by 22 April 2005 for the re-listing of the matter.


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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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Hughes v Egger [2005] NSWSC 18
Jones v Grech [2001] NSWCA 208
Powell v Supresencia [2003] NSWCA 195