Williamson v Tyms

[2009] NSWDC 348

CITATION:	Williamson v Tyms [2009] NSWDC 348
HEARING DATE(S):	31 July 2009
EX TEMPORE JUDGMENT DATE:	4 August 2009
JURISDICTION:	District Court - Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1) Verdict and judgement for the plaintiff in the sum of $110,000.00 2) The defendant is to the plaintiff costs on an ordinary basis up to and including 21 November 2008 and on an indemnity basis thereafter however the costs order will not extend to the costs incurred on the 20 July 2009; those occasioned by the preparation of an affidavit that was not read and those costs occasioned by the proceedings of the 5th August 2009 3) The period payment time is extended to 90 days with liberty to apply 4) The exhibits are returned
CATCHWORDS:	DE FACTO RELATIONSHIP - Adjustment of interest - Agreement that one party would remain at home to manage the household - Deterioration of assets during term of relationship
LEGISLATION CITED:	Property Relationships Act 1984
PARTIES:	Aina Signe Maria Williamson (Plaintiff) Steffan Adrian Tyms (Defendant)
FILE NUMBER(S):	24/08
COUNSEL:	G Gould (For the Plaintiff) P Davies (For the Defendant)
SOLICITORS:	Cunningham & Adams Solcitors (For the Plaintiff) O'Hearn & Bilinsky Lawyers (For the Defendant)

JUDGMENT

1 These proceedings are brought pursuant to the Property Relationships Act 1984 and raise the issue of whether an adjustment is warranted of the property interests of the plaintiff Aina Williamson and the defendant Steffan Tyms. They were in a de facto relationship for a period of just over six years between 1999 and 2006. The plaintiff’s child Dylan, who was four at the commencement of the relationship, formed a part of their household.

2 The authorities require that in determining applications such as this I adopt a three stage process by firstly determining the property interests of the parties at the date of the hearing, secondly, determining the contributions, financial and non-financial of the parties to that property and, thirdly, deciding whether an adjustment is warranted.

3 In dealing with financial contributions I note that at the commencement of the relationship the plaintiff had little by way of assets other than some items of furniture and other personal property. She was not in income-earning employment but was receiving Social Security benefits.

4 The defendant owned a house at New Lambton that was unencumbered and was then valued at about $150,000. He was in regular employment and had accumulated superannuation of about $135,000. He had savings of about $29,000. He owned a motorcycle, a motor car, household furniture and other personal items.

5 At the time of separation the plaintiff’s position was the same. The defendant still owned the house at New Lambton which had increased in value and was then unencumbered. He remained in the same employment. His superannuation had increased but his savings were gone and an insurance policy had been cashed in and expended in support of the parties to the relationship and the child and he had a credit card debt.

6 Throughout the relationship the plaintiff continued to rely on modest Social Security benefits and child support for her son which was mostly paid irregularly and in lump sums. At the time of the hearing the plaintiff’s position remained the same.

7 The defendant’s position was that the house was now worth $400,000. It was suggested that his motor car, his motorcycle, his furniture and personal items could be valued at about $8,000. His superannuation stood at about $165,000. Liabilities incurred on his credit card in the course of the relationship were $22,200. This has since been paid off by raising a mortgage on the house so that at the time of the hearing the value of his assets was about $550,000. Other liabilities incurred by the defendant since the time of separation have been disregarded.

8 The plaintiff acknowledged the superior contribution of the defendant financially throughout the period of the relationship. The plaintiff did highlight the amounts that she received through Social Services and child support.

9 The defendant pointed to his overall loss of capital in the course of the relationship, moving from a position of having an unencumbered property, savings and an insurance policy of value to one of having given a mortgage on his house to pay off his credit card and meet post separation expenses.

10 The plaintiff also acknowledged that the defendant provided the majority of the income to support the parties and her son, although there was evidence that the child’s father paid child support on an irregular lump sum basis and there was no evidence to suggest that these sums were expended other than in support of the parties.

11 For two years the defendant’s adult daughter lived with the parties without providing any direct financial contribution.

12 In respect of non-financial contributions the plaintiff was not employed in income earning capacity at any time during the period of the relationship. She claimed that the defendant was of a controlling nature and refused to allow her to work outside the home. The defendant denied this but his evidence made it clear that he did not encourage the plaintiff to work outside the home and that he acquiesced in her remaining at home in a housekeeping role.

13 The plaintiff claimed that she did all of the housework, some gardening and that she assisted the defendant with work undertaken to improve the house and garden and in caring for their pets comprising a dog and a number of birds. The defendant sought to minimise the work undertaken by the plaintiff in these areas by suggesting that she attended to housecleaning infrequently, that he shared responsibility for cooking and caring for their pets and that he did most of the gardening and improvements to the house. He claimed that his daughter undertook housework in lieu of paying board for the period of two years during which she lived with them. This was denied by the plaintiff.

14 The defendant said that he interrelated with Dylan, babysitting when the plaintiff was not at home and taking him to sporting activities. He claimed that Dylan had behavioural problems and that he was required to manage them because the plaintiff was unable to do so. The plaintiff denied that Dylan had any behavioural problems, stating that the relationship between the defendant and Dylan was poor.

15 I preferred the evidence of the plaintiff on these disputed parts of the evidence for the following reasons:

1. The defendant’s daughter confirmed the plaintiff’s evidence that aside from taking care of her own room and washing she performed a minor part of the general housework and that the plaintiff did this work regularly.

2. There was a note in evidence in the defendant’s handwriting that indicated that Dylan indeed might have had a difficult time living in the defendant’s household. In the note the defendant threatened to break his arm if he touched the Venetian blinds. He wanted the plaintiff to “ram it down his throat” that there would be dire consequences if the blinds were touched and he wanted two pages of lines to the effect, “I will do as I am told and not touch the blinds”. A number of other notes were annexed to the plaintiff’s affidavit to support her claim that the defendant was of a controlling nature. These notes appearred to direct the plaintiff on the tasks that she was to attend to during the day and tended to support the plaintiff’s evidence that he was dictatorial in his nature.

The defendant denied these allegations stating that the notes reflected his attempts at humour. The note concerning Dylan, he agreed, was not written in humour; it was written at a time when he was angry with the child.

3. As noted it was clear that the plaintiff was not encouraged to work outside the home. This was not simply a matter of lost opportunity to pursue a career. Rather, there was an agreement between the parties as to the manner in which their labour would be allocated for their mutual benefit.

16 In ordinary circumstances where the parties agree that one will provide income and the other will attend to the household, consideration of an adjustment would commence at the point of an equal distribution. In this case it was conceded by the plaintiff that, because of the defendant’s superior direct financial contribution, an equal division of property would be inappropriate and it was suggested an adjustment should be made in her favour of 30 to 35 per cent of the asset pool. The defendant argued that no adjustment should be made because of the deterioration in his financial position resulting from the period of cohabitation.

17 I regarded both of these positions as inappropriate. The authorities make it clear that deterioration in the financial position of the parties will not justify refusal to adjust interests. In this case the parties agreed that the plaintiff would be the party responsible for the household but she did this for a relatively short period of something over six years.

18 Taking into account the imbalance in favour of the defendant in the financial contribution by way of assets, I decided that the appropriate adjustment of the property interests of the parties was 80 per cent to the defendant and 20 per cent to the plaintiff. The result is that there will verdict and judgment for the plaintiff in the sum of $110,000.

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