Prior v Brown

HIS HONOUR: These reasons relate to an application brought by Helen Teresa Prior ("the Plaintiff") against her former de facto partner, Leonard Graham Brown ("the Defendant") seeking an adjustment of property interests under the Property (Relationships) Act 1984 ("the Act").

There is no dispute that the Plaintiff and the Defendant were parties to a de facto relationship, and, therefore, parties to a "domestic relationship": s 5(1)(a) of the Act. A de facto relationship is one in which adult parties live together as a couple, but are not married or related by family: s 4(1) of the Act.

The Family Law Act 1975 (Cth) was amended, with effect from 1 March 2009 (by The Family Law Amendment (De Facto Financial Matters & Other Measures) Act 2008), applying to de facto relationships breaking down on, and after, that date, so as to confer on the Family Court of Australia and Federal Magistrates Court of Australia, jurisdiction to hear, and determine, applications for adjustment of interests in property between persons who are, or have been, in a de facto relationship. The new Part VIIIAB of the Family Law Act provides broader discretionary powers with respect to the property and financial matters of parties to de facto relationships than exists under s 20 of the Act). Those courts are also given jurisdiction if the parties to the former relationship choose the amendments to apply to their circumstances (Item 86A of Sch 1 to that Act). Otherwise, the legislation does not have retrospective effect.

In this case, the parties do not agree when the relationship commenced or when, precisely, it ended. They are agreed, however, that the relationship ended well before 1 March 2009. They have not chosen the amendments to apply, and, accordingly, this Court is asked to exercise jurisdiction for the adjustment of property interests under the Act.

By her Statement of Claim filed on 12 October 2007, and amended on 22 August 2008, the Plaintiff first seeks a declaration that the parties lived together in a de facto relationship, within s 4 of the Act, from February 2001 until January 2006. She then seeks an order for adjustment of property, which would require the Defendant to pay to her $2,500,000, within 28 days, and transfer to her all of his right, title and interest in the property known at Radcliffe Place, Kellyville ("the Radcliffe Place property"). If he does not pay the amount sought within that time, the Plaintiff seeks an order that his property at Fairway Drive, Kellyville ("the Fairway Drive property") be sold and, after paying expenses of the sale and discharging any encumbrance on the Fairway Drive property and any debt secured by mortgage on the Radcliffe Place property, the proceeds of sale are to be paid as to $2,500,000, together with interest, to the Plaintiff and the balance to the Defendant. Orders are also sought to the effect that each party, otherwise, retain property in the name, or possession, of that party, and provide to the other indemnities in relation to any liability in the sole name of that party. Finally, an order for costs is sought.

The Defendant filed a Defence on 25 May 2009, but did not file a statement of Cross-Claim. At the commencement of the hearing, I was informed that the parties should be able to reach agreement that if no adjustment order is made (as the Defendant submits), then orders requiring the sale of the Radcliffe Place property, which is jointly held, will be made.

Counsel for the Defendant also stated that the Defendant is content for an order that each party, otherwise, retain property in the name, or in the possession, of that party, and provide indemnities to the other in relation to any liability in the sole name of that party.

On the last day of the hearing, the Defendant sought, and, without opposition, was granted, leave, to file a statement of Cross-Claim, in which relief was sought under s 66G Conveyancing Act 1919. Leave was granted upon the basis of an undertaking, given to the Court, by the Defendant's solicitor, that any filing fee payable would be paid.

It was accepted that consequential orders may have to be made depending upon the decision reached. The parties requested that I allow them a period of time to consider the reasons for judgment, and to enable the preparation of short minutes. Any argument on costs, if agreement is unable to be reached, can be dealt with subsequently.

I shall follow this course and will require them to prepare short minutes of order that reflect these reasons. I shall determine the burden of costs after further argument, if agreement is not reached.

The principal issue for determination is what, if any, orders should be made for adjustment of the parties' interests with respect to her, his or their, property pursuant to s 20 of the Act. The determination of this issue is dependant upon findings made in respect of other issues in the case, including, but not limited to, the duration of the relationship, the nature and value of the property owned by them, or either of them, at the commencement of the relationship and otherwise, the time at which the value of the property is to be calculated, and the direct and indirect contributions made by each.

The Plaintiff swore her first affidavit on 21 August 2009, which affidavit contained her evidence in chief. The Defendant filed his first affidavit (which was read in the proceedings) on 20 April 2010. That affidavit, in the main, contained the Defendant's evidence as to his contributions. The affidavit did not respond to the contents of the Plaintiff's affidavits. Other affidavits were then filed by each party, as well as on behalf of other deponents.

There was mediation between the parties that was unsuccessful.

The Defendant then swore another affidavit correcting errors in his first affidavit. This affidavit, also, did not respond to the contents of any of the Plaintiff's affidavits. It was not until the morning of the third day of the hearing that the Defendant sought to file an affidavit in reply to the affidavits read on behalf of the Plaintiff.

Because counsel for the Defendant had put most of the matters identified in this last affidavit to the Plaintiff, or to each of the other witnesses, and because the affidavit denied certain paragraphs and referred to the Defendant's first affidavit, I permitted the affidavit, over the Plaintiff's objection, to be read. However, I made an order that the Defendant is to pay the costs thrown away, if any, by the service of the affidavit so late in the proceedings.

On any view, the period between the end of the parties' relationship and the date of the trial was longer than the duration of their relationship. Furthermore, the parties have taken almost as long to litigate this case as their relationship lasted. The hearing occupied about four and a half days in total.

It is next necessary to identify the statutory framework in relation to the way in which the case must be decided and the principles that apply.

Although I have set out some of what I state hereunder in other cases, in view of the importance of this case to the parties, I shall repeat the principles. It is important that they be able to follow the reasoning and be satisfied that I have considered the evidence and the submissions.

"Property" is defined in section 3(1), unless 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."

As can be seen, the definition of "property" is a wide one. However, it does not include a reference to "financial resources", which expression is also defined in s 3(1) of the Act, to include: "(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 7 of the Act preserves the rights and entitlements of a de facto partner under any other statute or principle of law.

Section 14 of the Act, which is headed "Applications for orders under this Part", provides: "(1) Subject to this Part, a party to a domestic relationship may apply to a court for an order under this Part for the adjustment of interests with respect to the property of the parties to the relationship or either of them or for the granting of maintenance, or both."

There is no claim for maintenance in the present proceedings.

Section 15 of the Act provides two pre-requisites for the making of an order, namely, residence within New South Wales for a substantial period of the de facto relationship, and also substantial contributions of the kind referred to in s 20(1)(a) or (b) having been made in New South Wales by the applicant.

Section 17 of the Act provides a further pre-requisite, namely, one relating to the length of the relationship. Relevantly, the Court cannot make an order unless it is satisfied that the parties to the application have lived together in a de facto relationship for a period of not less than 2 years, or that there is a child of the parties to the application.

Section 18 of the Act provides: "(1) If a domestic relationship has ceased, an application to a court for an order under this Part can only be made within the period of 2 years after the date on which the relationship ceased, except as otherwise provided by this section. (2) A court may, at any time after the expiration of the period referred to in subsection (1), grant leave to a party to a domestic relationship to apply to the court for an order under this Part (other than an order under section 27 (1) made where the court is satisfied as to the matters specified in section 27 (1) (b)) where the court is satisfied, having regard to such matters as it considers relevant, that greater hardship would be caused to the applicant if that leave were not granted than would be caused to the respondent if that leave were granted. (3) Where, under subsection (2), a court grants a party to a domestic relationship leave to apply to the court for an order under this Part, the party may apply accordingly."

Section 19 of the Act provides that in proceedings for an order, a court shall, so far as is practicable, make such orders as will finally determine the financial relationships between the parties to a domestic relationship and avoid further proceedings between them. It is a necessary consequence of s 19 that the claims and counterclaims of the parties to a domestic relationship should, so far as is practicable, be resolved at the one time, and in the one court. The court is able to do what is "practicable" (under s 19) and, as will be seen, what is "just and equitable" having regard to the requirements, relevantly, of s 20(1).

In support of this view, I respectfully refer to Vitali v Stachnik [2001] NSWSC 408; (2001) 28 Fam LR 142 at [153-155], in which case Barrett J commented upon the need, in a property relationships case, for the court not to allow aspects that might potentially be made the subject of separate proceedings about financial dealings between the parties to be left outside the determination of the application. Orders were made, in that case, precluding the parties to the domestic relationship from resorting to separate proceedings that the financial dealings between them might otherwise have warranted.

Section 20 of the Act provides: "(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. (2) A court may make an order under subsection (1) in respect of property whether or not it has declared the title or rights of a party to a domestic relationship in respect of the property."

The underlying presumption of s 20 is that the de facto relationship has ended, that the parties have joint, or several, property, and that it may be just and equitable to adjust the existing property entitlements, having regard to past contributions of the type described, so that the financial relationship between the parties may be finalised: Green v Robinson (1995) 36 NSWLR 96, per Cole JA, at [115-116]; referred to in Van Zonneveld v Seaton [2004] NSWSC 1223 at [13], and Sullman v Sullman [2002] NSWSC 169 at [247].

The Act does not define "contribution", which word, therefore, bears its ordinary meaning. Nor is the word otherwise elaborated upon in the Act. It can be seen, however, that s 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 her, his or their financial resources. The contributions of both of the parties must be taken into account ("of the parties to the relationship").

Further, it is the property of both parties, and the financial resources of both, which need to be taken into account. However, it is not any contribution that is made by a party in the context of the de facto relationship that counts. It is a contribution with a particular purpose, or effect, such that it can properly be described as a contribution "to the acquisition, conservation or improvement of ... property": Sullman v Sullman at [246].

Section 20(1)(b) is concerned, substantially, with contributions to the welfare of the other party, or relevantly, in this case, of the family constituted by the parties and any child, or children, of them. It does not require any link between homemaker/parent contributions and the acquisition, conservation or improvement of property. The link that must be shown is one to the welfare of the family, and the homemaker contribution should be valued whether or not one can trace a connection with particular property or demonstrate that the homemaker contribution represented an indirect contribution to the property accrued, or preserved, in the course of the parties' cohabitation: Powell v Supresencia (2003) 30 Fam LR 463 at [25].

By using the word "including" in the first line of paragraph (b), it is possible for a contribution to the welfare of the other party, or to the welfare of the relevant family, to be made in some capacity other than as homemaker or parent. Also, there is nothing in the language that requires contributions, which count for the purposes of paragraph (b), to be non-monetary: Sullman v Sullman . Contributions as homemaker, or by way of emotional support, are not less relevant, or less deserving, of weight than the material and financial contributions of the breadwinner and, in that sense, all forms of contribution are equal: Kardos v Sarbutt [2006] NSWCA 11; (2006) 34 Fam LR 550.

In relation to homemaker contributions, there are several passages in Giller v Procopets [2008] VSCA 236, which are apt in cases under the Act. Neave JA, with whom Maxwell P agreed, observed: "In our view, the entire endeavour to attribute a dollar figure to Ms Kenyon's parent/homemaker contribution is misconceived. Not only is such a contribution, by its nature, insusceptible of valuation in money terms, but the very attempt to compute such a value ignores the critical fact that many - perhaps most - domestic relationships operate as a shared undertaking where the maintenance of the family unit depends in equal measure on each contribution. Typically, one partner bears a disproportionate share of the burdens of homemaker and (where there are children) parent; the other partner is thus left free to earn a disproportionate share - if not the entirety - of the household income. ... As discussed earlier, s 285(1)(b) required the Court to assess the homemaker or parent contributions made by either of the de facto partners to the welfare of the other de facto partner or to the welfare of the family. This provision must be given a beneficial construction. Contributions to the welfare of the family must be recognised 'not in a token way but in a substantial way'. The contributions of a de facto partner as homemaker and parent should not be regarded as inferior to the corresponding contributions of a spouse, nor should contributions as homemaker or parent be valued by reference to the commercial value of those services. Family Court decisions dealing with the assessment of homemaker and parent contributions under s 79 are also of assistance in assessing the value of such contributions, although they cannot be applied uncritically given that s 79 requires reference to factors (in s 75(2) of the Family Law Act) which have no equivalent in the Act. ... Some contributions are readily capable of evaluation in monetary terms. Others - such as those made in the capacity of homemaker and parent - are not."

Evaluating the respective "contributions" is a balancing exercise, described by Mahoney JA in Dwyer v Kaljo (1992) 27 NSWLR 728, at 732- 733, in the following terms: "It is, of course, possible to determine what has been done by one party for the welfare of the other and to assess the extent to which the welfare of the other has been forwarded by it. But, in my opinion, the assessment of "the contributions" made by one party is not one sided; it cannot have been the intention of the legislature that what one party has done for the other is to be considered - and rewarded - in isolation. Regard must be had to what that party has received in return. Special cases apart, what is contemplated by the provision is, therefore, that it is the balance of the contributions of the one over those of the other which is to be taken into account in determining what justice and equity require the court do. At least, in deciding what "to it seems just and equitable", the contributions of each side are to be had regard to. I do not mean by this that what is involved is merely the weighing of the quantum of the benefits: it may be that quality also is to be weighed. But, in the end, it is, I think, the balance between the contributions of each which is or, at least, the contributions of each which are to be taken into account. But such a balance is not to be determined by the number of lawns mowed or dishes washed. The process is to an extent normative. And that leads to the examination of the assumptions underlying the section and the process it requires to be undertaken."

The Court is empowered to make such order adjusting the interests of the parties in the property "as to it seems just and equitable", having regard to the financial and non-financial contributions described in s 20(1)(a) and in s 20(1)(b). Thus, adjustment of property on an application under the Act is not automatic: Green v Robinson at [115] per Cole, J; Howell v Fiorenza [2008] NSWSC 163 at [33].

It is clear that the reference in the Act to "adjustment" of property interests does not convey an invitation to engage in an unbounded exercise in distributive justice: Evans v Marmont (1997) 42 NSWLR 70 per Gleeson CJ and McLelland, CJ in Eq at 79. The Court does not commence with a presumption that, upon the conclusion of a de facto relationship, s 20(1) is intended to produce the result that each party will emerge with equality of property value. As Clarke JA made clear in Black v Black (1991) 15 Fam LR 109 at [113], a court is not entitled to work on any preconceived notions or adopt any pre-determined formula as a starting point. An evaluative judgment that is inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific (an "holistic value judgment"), is required by the Act: Burgess v Moss (2010) 43 Fam LR 260; [2010] DFC 95-423; [2010] NSWCA 139.

In Separovich v Ferrao [2011] NSWCA 180, Beazley JA said: "37 However, that " holistic value judgment " is the final step in the process of arriving at an order, being the just and equitable adjustment of property, having regard to the contributions identified in s 20. Before the court can make that final determination, it is necessary to identify and value the property in respect of which it is open to the court to make an adjustment and to identify and value the contributions that are being taken into account: see Howlett v Neilson [2005] NSWCA 149; DFC 95-321 at [25]; Saric v Steward [2006] NSWCA 260; (2007) DFC 95 at [61]; Chanter v Catts [2005] NSWCA 411; 64 NSWLR 411 at [22]. 38 The authorities recognise that notwithstanding that the court exercises a wide discretion under s 20, a mathematical calculation of the contribution of the parties is of assistance in finding and testing conclusions as to what is just and equitable and in promoting transparency and consistency in decision-making: see Howlett v Neilson per Hodgson JA at [39]. 39 The discretionary considerations that may influence and/or determine the ultimate order made depend upon the particular circumstances of the case. As Ipp JA observed in Bilous v Mudaliar [2006] NSWCA 38; 65 NSWLR 615 at [63]: 'Determinations as to what orders should be made under s 20 are to be made solely on the grounds of the justice and equity of the case. The justice and equity of the case may derive from the fact that the party who owns the family home or other property was able to retain that property, while the market value increased, because 'of joint efforts of wage earning, homemaking and parenting, and mutual support'. In some instances the non-financial contributions of one party may result in property of the kind in question not having to be sold. In other instances, the non-financial contributions of one partner may allow the other to advance his or her career and earn a high income that enables the property in question to be maintained and retained. Thus, an increment in capital value may well result, indirectly, from 'joint efforts of wage earning, homemaking and parenting, and mutual support'.'"

What the statute requires is the ascertainment of the property interests of the parties, the ascertainment of the contributions each made with respect to that property and a just and equitable adjustment: Paino v Paino [2008] NSWCA 276 at [122] - [123] per Young JA. In Evans v Marmont , it was also observed that considerations of fault are not mentioned in the Act and there is no reference to means and needs of the kind referred to in the Family Law Act 1975.

Section 38(1) empowers a court exercising jurisdiction under the Act to make a range of orders, including, relevantly to this case, an order for the transfer of property, an order for the sale of property, and the distribution of the proceeds of sale in such proportions as the Court thinks fit, an order that any necessary deed, or instrument, be executed as is necessary to enable an order to be carried out effectively, and that such documents of title be produced, or to provide security for the due performance of an order, an order for the payment of a lump sum, and any other order, whether or not of the same nature as those mentioned in the other paragraphs of subs 38(1), which the Court thinks is necessary in order to do justice (s 38(1)(a), (b), (c), (d) and (k)).

Section 56 of the Act, relevantly, provides that a person who alleges that a domestic relationship has existed between the person and another named person, may apply to the Supreme Court for a declaration as to the existence of a domestic relationship between those persons, and if that is proved to the satisfaction of the Court, the Court may make a declaration (which shall have effect as a judgment of the Court) that persons named in the declaration have had a domestic relationship. Where the Court makes a declaration, it is required to state therein that (a) the domestic relationship existed as at a date specified in the declaration, or (b) the domestic relationship existed between dates specified in the declaration, or both. While a declaration made remains in force, the persons named in the declaration shall, for all purposes, be presumed conclusively to have had a domestic relationship as at the date specified in the declaration, or between the dates so specified, or both, as the case may require.

Despite the use of the word "may" in s 56 of the Act, I am of the view that the making of a declaration of the type contemplated does not involve the exercise of a judicial discretion because the question whether, and when, a de facto relationship exists is a determination of fact: Jonah v White [2011] FamCA 221 at [39] per Murphy J, approved in Smyth v Pappas [2011] Fam 434 at [4] per Cronin J (in relation to the similar provision in s 90RD of the Family Law Act 1975 (Cth)).

In the present case, other than the parties, there is no person whose interests would be affected by the making of such a declaration.

The geographical pre-requisites set out in s 15 of the Act are met in the present case, as the parties lived together, in New South Wales, between at least 2001 and 2005. The parties still reside in this State.

On either view of the case, the duration of the relationship was longer than 2 years, so that the pre-requisite in s 17 is also met.

Whoever is correct as to the duration of the de facto relationship, the proceedings were commenced within the time period prescribed by the Act (2 years from the date of termination of the relationship).

It follows, from the above, that it is within the jurisdiction of the Court to make an order adjusting interests in the property of the parties if that course is appropriate.

In this type of application, in order to determine whether and, if so, what, property order is justified in a particular case, the Court is required to: (a) identify and value the property of the parties which determines "the divisible pool of property" - that is, "the property of the parties to the relationship or either of them"; (b) determine whether any, and if so what, contributions of the type contemplated by s 20(1)(a) and s 20(1)(b) of the Act have been made and by which party - that is, the evaluation and balancing of the respective contributions of the parties of the types referred to; (c) determine what order is just and equitable - that is, what order is required sufficiently to recognise and compensate the applicant's contributions.

This approach has been followed in many cases, including, Howlett v Neilson [2005] NSWCA 149; (2005) 33 Fam LR 402; Chanter v Catts [2005] NSWCA 411; (2005) 64 NSWLR 360; Kardos v Sarbutt ; Paino v Paino [2008] NSWCA 276; (2008) 40 Fam LR 96.

The desirability for there, generally, to be clear findings as to these matters has been stated by Hodgson JA in Ducker v Smith [2011] NSWCA 212 that: "2 I think it is desirable that, in Property (Relationships) Act cases, there generally be clear findings as to (1) the assets of the parties at the beginning of the relationship, at the end of the relationship, and at the time of the hearing; (2) the financial and non-financial contributions of the parties during the relationship and, where relevant, after its end; and (3) the equality or inequality of those contributions, giving reasons, particularly in cases where significant inequality of contributions is found (dealing with the issue of whether financial and non-financial contributions balance out). 3 This is not because the result in such cases follows mathematically from such findings. Plainly it does not: the Act requires a holistic value judgment in the exercise of a discretionary power. However, I think that to make such findings and to give such reasons promotes transparency and consistency in decision-making."

As can be seen, contributions by either party, after the termination of the relationship, are also relevant for the purposes of s 20.

As previously stated, the relevant property, for the purposes of s 20, is not only property held jointly by the parties, but also property held by one of the parties alone. As was recently noted by Tobias AJA (with whom McColl and Campbell JJA agreed) in Beltran v Hudspith [2011] NSWCA 178: "24 The appellant submitted that the primary judge made two errors in his approach to the appellant's application. The first was his observation at [30] that although there was considerable evidence given concerning events and matters which occurred after the termination of the relationship up to the date of trial, that evidence was totally irrelevant to a consideration of the respective contributions of the parties of the nature referred to in s 20(1) and, therefore, would be disregarded. This was a clear error and it is sufficient for this purpose to refer to the judgment of Campbell JA, with whom Santow JA and Bryson AJA agreed, in Manns v Kennedy [2007] NSWCA 217. In particular, s 20 of the Act empowers the court to make an order adjusting the parties' interest in their property as it exists at the date of the order and it follows that contributions made by the parties to the acquisition, conservation and improvement of any of the relevant property after the termination of the relationship but prior to the making of the order are capable of being relevant to any adjustment of their respective interests in that property. In particular, contributions made in the capacity of a parent by either of the parties to the relationship to the welfare of a child of the parties up to the time of making of an order is also relevant. Accordingly, his Honour's disregard of any contributions, financial or non-financial, after July 2007 up to the time of the making of his Honour's order, involved an error."

Importantly, any adjustment is "with respect to the property of the parties to the relationship or either of them". For this reason, there is no adjustment with respect to his, her, or their, "financial resources".

While the Court has "a broad discretion" in determining the approach to adopt in considering what order to make under s 20, two approaches are usually referred to, asset by asset and global: Saric v Steward [2006] NSWCA 260 at [63] per McColl JA (Handley and Santow JJA agreeing); Kardos v Sarbutt at [51]; Bilous v Mudaliar [2006] NSWCA 38 at [42]; (2006) 65 NSWLR 615 per Ipp JA (Giles and McColl JJA agreeing).

The 'asset by asset' approach is one whereby the respective contributions to individual assets are assessed separately and where, as a result, the proportionate contributions may differ from one asset to the other.

The 'global' approach is one whereby the identified assets are treated as a 'pool' and a global assessment of respective contributions is applied to the whole of the pool, often on the basis of percentages. Which of these approaches is to be adopted, in the particular case, is a matter for the Court, having regard to the circumstances of the case: Kenyon v Akeroyd [2008] VSCA 277 at [10].

Care must be taken, when either is adopted, to conduct what might be described as "a cross-checking process" as described by Ipp JA in Bilous v Mudaliar at [43]: "43 If a global approach is adopted, regard must still be had to the origin and nature of the different assets. If an asset-by-asset approach is adopted, care must be taken to avoid the risk of undervaluing domestic and non-financial contributions and regard must be had to the overall result: Kardos v Sarbutt at [51] and [54]. Some situations do not lend themselves either to a pure global approach or to a pure asset-by-asset approach. In some cases the judge may decide to have regard to the particular contributions made to individual assets, weigh up the overall respective contributions to the parties and make differing apportionments in relation to the interests of the parties in different assets."

The next area of dispute between the parties related to the time at which the property should be valued and the adjustment determined. The Plaintiff submitted that the date of termination of the relationship was the appropriate date. The Defendant submitted that, in accordance with the invariable practice of the Court, it should be the date of the hearing.

In Kardos v Sarbutt at [30], the Court of Appeal said: "As to the first step, the exercise of the identification and valuation of the property of the parties is undertaken typically, though not invariably, as at the date of trial [see Parker v Parker (1993) 16 Fam LR 863 at 1993) DFC 95-139; Wells v Wells (1977) 29 FLR 383; (1977) 4 Fam LR 57 at 1977) FLC 90-285], though sometimes as at the date of separation [ Cozanitis v Cozanitis (1979) 34 FLR 523n; (1978) 4 Fam LR 709 at 1979) FLC 90-643]. The starting point is that ordinarily property is valued as at the date of trial [ Williams & Williams (1984) 9 Fam LR 798 at 1984) FLC 91-541; Hauff & Hauff (1986) 10 Fam LR 1076 at 1986) FLC 91-747]. The primary reason for this is that the jurisdiction under s 20 is to adjust interests with respect to "the property of the parties to the relationship or either of them" and speaks from the date at which the jurisdiction is exercised, so that what is in issue is the property of the parties and each of them at the date of trial. Establishing the divisible pool at any other date may lead to failure to have regard to relevant assets available for division, or to the bringing into account of property no longer available. Thus in Woodland & Todd (2005) 33 Fam LR 177 at 2005) FLC 93-217; [2005] FamCA 161, in which the property of the parties - which had been worth $873,000 when the husband and wife divided it between them in 1997 under an informal agreement which did not deprive the court of jurisdiction - had increased in value to $2.5 million when the matter came to trial years later, the Full Court of the Family Court held that the primary judge had erred in treating the case as concerning an asset pool as at the date of the informal agreement in 1997, and was required to address an asset pool that existed at the time of the hearing, not at the time of the prior agreement."

The Court of Appeal, however, also recognised, as legitimate, an approach that has regard to the value of the property at the date of separation at [31]: "Although usually the preferable approach is to value property as at the date of trial, giving where appropriate separate and special consideration to contributions to value made between separation and trial, nonetheless the ultimate task of evaluating the respective contributions of the parties may sometimes be facilitated by adopting the date of separation for identifying and valuing the property, particularly when there have not been ongoing contributions by one party which have benefited the other since separation. Thus the Full Court of the Family Court has said (in respect of proceedings under the Family Law Act , s 79, which for present purposes are akin to proceedings under the Property (Relationships) Act, s 20) that although ordinarily the parties' property is to be valued at the date of trial, in a particular case there may be reasons to justify another date, which might be the date of separation [ Omacini & Omacini (2005) 33 Fam LR 134 at 2005) FLC 93-218; [2005] FamCA 195]."

In Parker v Parker (1993) 16 Fam LR 863 at 874, Young J (as his Honour then was) gave three examples of factors which might militate against identification and valuation at the date of trial and in favour of recognition of the position at the date of separation. These are, first, "where a party had won the lottery between separation and hearing"; second, where the parties had agreed to adjust their interests as at the date of separation; and, third, where there has been a deliberate wasting of assets after separation. None of those three examples apply here.

Another important issue of principle, in this case, was the way in which the Court should treat the property owned by the Defendant prior to the commencement of the relationship, which property was registered in the Defendant's name alone, both in regard to the overall value of that property, and, importantly, as to the increase in its value during the period of the relationship.

A Court may award the capital appreciation of a property introduced into a relationship by one of the parties either to that party, or to each of the parties in a certain proportion. That issue has been considered in a number of cases including Burgess v King [2005] NSWCA 396; (2005) 64 NSWLR 293, in Howlett v Nielson , Kardos v Sarbutt and in Bilous v Mudaliar .

It should not be assumed that just because there was a relationship and one party was the proprietor of property which increased in value because of the natural increase in value of properties in the area, and so at the end of the relationship that party's assets are proportionately greater when compared with the other party's to the situation at the start of the relationship, that the person with the asset needs to have his, or her, rights adjusted downwards: Burgess v King [2005] NSWSC 231 at [9].

Yet, in Burgess v King , on appeal, Hodgson JA (with whom Mason P and MW Campbell A-JA agreed) at 298, held that a party who had made a particular contribution to the acquisition of a property was entitled to share in the capital appreciation of the property over the course of the relationship. In other words, the prima facie position is that the parties should participate in the capital appreciation of an asset of the relationship in accordance with their initial contributions to the relationship.

In Kardos , Brereton J said that there was no general rule that a contribution made by a party was only to be valued as at the time it was made, and without regard to capital appreciation. He said at [61]: "The approach which was adopted in Burgess v King is one which gives due weight to the time value of money, and recognises that capital gains are the product of the initial introduction of the property, rather than of ongoing contributions. On the other hand, the approach adopted in Howlett v Neilson , in my respectful opinion, may, in at least some cases, result in the serious undervaluation of initial contributions. It treats any increment in capital value of an asset held at the outset of the relationship as if it were part of the fruits of the relationship, when it is not: it is the result of the asset having been held by one of the parties at the commencement of the relationship, and not the result of joint efforts of wage earning, homemaking and parenting, and mutual support of the type described by Deane J as producing 'fruits of the relationship'. It disregards the 'time value of money'. It is likely to produce erratic results, because under it the significance of any particular asset in the ultimate evaluation will depend on its value when it was introduced. If one party has a house worth $250,000 at the outset, and it appreciates during the relationship to be worth $750,000, the contribution is of a house which at separation is worth $750,000 - not of money worth $250,000."

In Bilous , Ipp JA (with whom Giles and McColl JJA agreed) said that there was no rule that, for the purposes of determining the order to be made under s 20(1), any increase in value in assets initially contributed should be regarded, in all circumstances, as entirely a contribution by the party who contributed the assets. His Honour went on to say (at 627 [61] - [63]): "[61] Brereton J expressed the opinion that in at least some cases Howlett v Neilson may result in "serious undervaluation of initial contributions". He went on to comment on the approach in Howlett v Neilson in a way that could be construed as a departure from the views expressed by Hodgson JA. [62] By "the approach adopted in Howlett v Neilson " Brereton J appears to have meant the apportionment of the increase in value of the assets initially contributed. His Honour appears to have stated a rule to the effect that, for the purposes of determining what order should be made under s 20(1) of the Property (Relationships) Act, any increase in value in assets initially contributed should be regarded, in all circumstances, as entirely a contribution by the party who contributed those assets. If that is what his Honour intended, I do not agree. [63] Determinations as to what orders should be made under s 20 are to be made solely on the grounds of the justice and equity of the case. The justice and equity of the case may derive from the fact that the party who owns the family home or other property was able to retain that property, while the market value increased, because "of joint efforts of wage earning, homemaking and parenting, and mutual support". In some instances the non-financial contributions of one party may result in property of the kind in question not having to be sold. In other instances, the non-financial contributions of one partner may allow the other to advance his or her career and earn a high income that enables the property in question to be maintained and retained. Thus, an increment in capital value may well result, indirectly, from "joint efforts of wage earning, homemaking and parenting, and mutual support"."

The matter has, recently, been taken up, again, by Brereton J (with whom Campbell JA and Sackville AJA agreed) in Jensen v Ray [2011] NSWCA 247: "26 It is well established that the significance of a large initial contribution by one party at the outset of a relationship is ordinarily progressively diminished - or "eroded" - by the ongoing and offsetting contributions during the relationship of the other or, in this case, both [see Kardos v Sarbutt [2006] NSWCA 11; (2006) 34 Fam LR 550; and Bilous v Mudaliar [2006] NSWCA 38; (2006) 65 NSWLR 615]. As Mr Alexander submitted, despite the apparent controversy, there is no substantial underlying difference between those cases, as I endeavoured to explain in Sharpless v McKibbin [2007] NSWSC 1498, (2008) DFC 95-414 , [75]-[85]. The point of Kardos v Sarbutt was that it is not a rule of general application that increases in value of assets introduced at the outset should be apportioned 50/50 between the partners, but that the apportioning of increments in value depended on the circumstances; in Bilous , Ipp JA expressed agreement with Kardos insofar as it stood for that proposition [ Bilous , [59]]. The point of Bilous was that increases in the value of assets initially contributed by one party should not invariably be regarded as entirely a contribution by that party, and where an initial contribution had been made by one party, the other bore no onus to prove that the initial contribution should be "eroded" [ Bilous , [48]-[49], [55], [62]]. As Ipp JA concluded: [63] Determinations as to what orders should be made under s 20 are to be made solely on the grounds of the justice and equity of the case. The justice and equity of the case may derive from the fact that the party who owns the family home or other property was able to retain that property, while the market value increased, because "of joint efforts of wage earning, homemaking and parenting, and mutual support". In some instances the non-financial contributions of one party may result in property of the kind in question not having to be sold. In other instances, the non-financial contributions of one partner may allow the other to advance his or her career and earn a high income that enables the property in question to be maintained and retained. Thus, an increment in capital value may well result, indirectly, from "joint efforts of wage earning, homemaking and parenting, and mutual support". 27 This statement is entirely consistent with the approach described in the judgment of the Full Court of the Family Court (Ellis, Baker and O'Ryan JJ) in In the Marriage of CA and EA Pierce (1998) 24 Fam LR 377, (1998) FLC 92-844: [28] In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution. In the present case that use was a substantial contribution to the purchase price of the matrimonial home: see also Campo and Campo (Full Court, Sydney, 19 May 1995, unreported) at pp 21-2 of the joint judgment of Ellis, Lindenmayer and Finn JJ and Zahra and Zahra (Full Court, Sydney, 3 October 1996, unreported) per Ellis J at p 10. 28 Ultimately, it is a question of weighing the initial contributions of a party with all other relevant contributions to achieve a just and equitable result, the nature and the source of the property and the manner in which it has been used during the relationship being material considerations. This will typically involve one party being regarded as having contributed to the improvement or conservation of an asset initially introduced by the other, but in a lesser proportion than that first party's overall contributions to the relationship: usually it is neither appropriate that any increment in value of an asset introduced exclusively by one party be equally shared between the parties, nor that it be wholly attributed to the party who introduced it; the answer will typically lie somewhere in between. In deciding where within that range it lies, not only the nature, value and source of the property and the manner in which it was being used during the relationship are material; so too are the quantum and quality of the offsetting contributions made during the relationship; the composition of the pool of assets at the time of hearing and in particular the extent to which they reflect those initially introduced; and whether any accretions to capital were attributable to contributions made during the relationship [ cf Sharpless v McKibbin , [86]]."

In Kozjak v Oswin [2010] NSWCA 260, Hodgson JA (with whom Beazley JA and Handley AJA agreed) said: "[44] I would approach a decision under s 20 of the Act in the following way. I would take the assets of the parties at the commencement of the relationship, and consider to what extent the value of those assets has increased up to the present. (I leave out of account motor vehicles, furniture and personal effects.) I would not take the date of separation as the cut-off point in this case, because it is from existing assets that any adjustment must be made, and any adjustment should be made on the basis of present day values; and also because the difference between the value of assets at the date of separation and the value at the date of hearing is simply due to movements in values of property held at both dates. I would consider whether the value of the assets now held by each, apart from the effect of any s 20 order, is appropriate, having regard to contributions of both parties; and if not, consider what adjustments should be made."

Even though it was said in the context of the Family Law Act , I also mention what was said by the Full Court of the Family Court in Williams & Williams [2007] FamCA 313 at [26]: "We think that there is force in the proposition that a reference to the value of an item as at the date of the commencement of cohabitation without reference to its value to the parties at the time it was realised or its value to the parties at the time of trial, if still intact, may not give adequate recognition to the importance of its contribution to the pool of assets ultimately available for distribution towards the parties. Thus where the pool of assets available for distribution between the parties consists of say an investment portfolio or a block of land or a painting that has risen significantly in value as a result of market forces, it is appropriate to give recognition to its value at the time of hearing or the time it was realised rather than simply pay attention to its initial value at the time of commencement of cohabitation. But in so doing it is equally as important to give recognition to the myriad of other contributions that each of the parties has made during the course of their relationship."

Because the Plaintiff lived in the home owned by the Defendant for part of the period of the relationship (before moving into their jointly owned property), I must consider the contribution of the Defendant in this regard.

However, the authorities warn against the danger of double counting when the Court considers any notional rent applicable when one party occupies the property of another during a domestic relationship. As Ipp JA in Bilous v Mudaliar at [122]: "The respondent's provision of the family home was a contribution to her by the partnership, and appropriate weight should be accorded to it. It could be wrong in principle however to accord it weight and then require a notional rental in respect of the appellant's accommodation in the home to be deducted from the value of his contributions. That would be impermissible double counting."

Brereton J said in Kardos v Sarbutt at [79] "... whilst it is true that in a sense Ms Kardos provided the Woonona home as accommodation for the parties, a relationship has to be conducted from some place of co-habitation". Whilst parties in a relationship who live in a home that is owned by one of them, generally, do not treat their relationship as one of landlord and tenant, in this case, account should be taken of the benefit that, the Plaintiff, for a relatively short period, was able to rent her own home and to use the rent received to pay the outgoings, including mortgage repayments, thereon.

I bear in mind also, that once the Radcliffe Place property in which the parties lived was purchased, and after they moved in, the Defendant was able to rent the Fairway Drive property and, whilst it was rented, to retain all of the rental proceeds.

It is also necessary to remember that the Plaintiff has remained in occupation of the Radcliffe Place property since separation (in excess of 5.5 years on her case). However, for some of this period (about October 2007 to May 2011) she made all of the mortgage repayments and paid the outgoings (said to total $182,649). Yet, as was acknowledged in her counsel's submissions in reply, she "did receive some $80,000" from boarders during that time.

What the Court should not do, in cases under the Act, has been considered by Master McLaughlin (as his Honour then was) in Rose v Richards [2004] NSWSC 315, in which he said: "37 In exercising the discretion vested in the Court by section 20(1) of the Property (Relationships) Act , it seems to me that, consonantly with the foregoing decisions of the Court of Appeal, the present financial and material circumstances of the Plaintiff and, in particular, her present needs, should not be taken into consideration. The Court should not be diverted from the clear words of the statute in exercising its discretion to "make such order adjusting the interests of the parties in the property as to it seems just and equitable". The Court must have regard to the contributions of the nature then set forth in paragraphs (a) and (b) of the subsection. As I understand the foregoing decisions of the Court of Appeal, it is not legitimate for the Court to have regard to present or future needs of the parties; it should have regard only to contributions of the nature set forth in the subsection. (See, Matheson v Wallis [2001] NSWSC 931, McLaughlin M, 22 October 2001, an appeal from which was dismissed by the Court of Appeal on 11 October 2002, sub nomine, Wallis v Matheson [2002] NSWCA 350.) 38 It is clearly necessary in this regard to exercise the caution counselled by Powell J in Roy v Sturgeon . The principles disclosed in the relevant provisions of the two statutes are that the Property (Relationships) Act looks to past contributions, whereas the Family Law Act looks also to present and future needs. 39 I propose, therefore, in considering the claim of the Plaintiff for adjustment of interests in property under section 20(1) of the Property (Relationships) Act to disregard evidence concerning her present and likely future needs. 40 Similarly, I propose also to disregard evidence concerning various financial transactions (for example, withdrawal of moneys from the business), which occurred after the termination of the relationship. Those transactions can be in no way determinative of the outcome of the present proceedings. 41 In approaching the claim for the adjustment of interests of parties in property pursuant to section 20(1) of the Property (Relationships) Act , the Court should make a holistic judgment, and should not attempt to evaluate the respective contributions of the parties as if it were undertaking a reductionist process analogous to the taking of partnership accounts (notoriously one of the most time consuming and expensive of litigious exercises) (see Davey v Lee (1990) 13 Fam LR 688)."

His Honour added in Fletcher v Furnance [2008] NSWSC 132: "52 In considering the claim of the Plaintiff (and also the cross-claim of the Defendant) the Court should not be diverted from the clear words of the statute, where by section 20 (1) the Court is required to have regard to the respective contributions of the parties of the nature described in that subsection. The Court is not required to proceed upon the basis that the Defendant might have made greater contributions than he in fact made, if he had done other than he in fact did. 53 Each of the parties submitted that I should approach the matter upon the basis of what was described as the asset pool of the parties. (Indeed, the Defendant even went so far as to adopt what was referred to as a "three pool approach".) I would here interpolate that I do not find the phrase "asset pool", or even such a concept, as being particularly helpful in a claim under the Property (Relationships) Act . As I have already observed, the Court should not be diverted from the clear wording of the statute, which looks to past contributions that have been actually made by the parties. 54 The Plaintiff based her claim in part upon what was referred to as "a premature distribution" from the asset pool, and sought what was referred to as a "notional restoration" of certain assets to the asset pool. I consider such concepts, howsoever they may be appropriate to claims under the Family Law Act 1975 , to be quite inappropriate to a claim under the Property (Relationships) Act , a statute of New South Wales. The State Act looks only to past contributions, whereas the Commonwealth Act looks also to present and future needs. 55 To the extent that the claim of the Plaintiff is grounded in some way upon the failure of the Defendant to contribute more than he actually did contribute to the relationship, I reject that claim. The Court is required to look to the contributions of the nature set forth in section 20 (1) which were actually made by each of the parties. The Court cannot proceed upon some conjectural basis. Such concepts as a "premature distribution" from the asset pool or a "notional restoration" to that asset pool seem to me to be incompatible with the task imposed upon the Court, to exercise its discretion to "make such order adjusting the interests of the parties in the property as to it seems just and equitable having regard to" the contributions of the nature set forth in section 20 (1) of the Act. Moneys which were invested by one of the parties (as, for example, in the instant case, in superannuation funds by the Defendant) do not constitute such contributions. I do not see how those funds can be characterised in the fashion in which they have been in the written submissions of the parties (especially those of the Plaintiff, for the purpose of performing a detailed, and somewhat convoluted, arithmetical exercise, in order to establish a monetary entitlement to the Plaintiff)."

Furthermore, as was noted by Slattery J in Ryan v Kalocsay [2010] NSWSC 620, at [19]: "The court is not required in proceedings under Property Relationship Act s 20 to undertake a reductionist process, examining every alleged contribution with a view to putting a money value on each in order to reach an accounting balance, which balance is then to be eliminated by the requisite financial adjustment in the s 20 order. Rather the court is required to make a holistic value judgment in the exercise of a discretion of a very general kind. Mathematical calculations, however, are of some use in guiding and testing conclusions about what is just and equitable, and also in promoting transparency and consistency in decision making: Kardos v Sarbutt (2006) 34 Fam LR 550; [2006] NSWCA 11 at [36] and [49] and Howlett v Neilson (2005) 33 Fam LR 402; [2005] NSWCA 149."

There are dicta in Howlett v Neilson at [36] that the court is not authorised to make orders by reason of lost opportunities of a party to the relationship (but see, Powell v Supresencia at [83]; (2003) 30 Fam LR 463 per Einstein J). The role of the court is not to use the division of property to remedy any justified grievances that one party may have against the other, or to compensate a party for disappointed, or unfulfilled, expectations: Hogg v Roberts [2003] SASC 410; (2008) 87 SASR 248. As stated, where the fault for the breakdown of the relationship may lie, is irrelevant.

Also, one should not approach an application for adjustment of property interests by beginning with an assumption that an equal division of property is appropriate and then asking whether the circumstances of the case require some departure from that position: Evans v Marmont , at 5.

The Act focuses on the just and equitable division of property and not on an order that is fair having regard to all the surrounding circumstances, and everything that happened during, a relationship: Hogg v Roberts at [11]- [19].

Ultimately, however, "the final s 20 order is an evaluative determination of a discretionary nature, not susceptible of complete exposition" and, "[i]n a process like this different evaluations by different minds are to be expected and are not indications of error": Ducker v Smith at [54].

In this case, the parties are in dispute about which approach to adopt. The Plaintiff submits that the global approach should be adopted. No reasons for choosing that approach are advanced other than "the justice and equity in this case requires" it. No doubt, the global approach is the more convenient.

The Defendant submits that while either approach is open, the asset by asset approach for the following reasons: (a) the relationship, on any view, was a short one; (b) there was a massive disparity in the property of each party at the commencement of the relationship; (c) even accepting the Plaintiff's evidence in its entirety, she made no contribution, direct, or indirect, to the property that the Defendant had owned prior to the commencement of the relationship; (d) the Defendant's business, which he had owned for many years prior to the commencement of the relationship, was the income earning vehicle which provided for the parties throughout their relationship; following the end of the relationship nothing changed within the business and there is no evidence that there was any improvement in the value of the business as a result of the contribution to that business by the Plaintiff; (e) because there were no children of the parties, the Plaintiff was not out of the work force for any period of time, with the consequence that non-financial contributions are not as significant as in those cases.

The Court is not required to adopt either a global or an asset-by-asset approach to the exclusion of the other. In this case, I shall consider the circumstances in which property was acquired and the contributions made to that property by one, or both, of the parties, whilst at the same time ensuring that I take care to avoid the risk of undervaluing domestic and non-financial contributions.

A relevant matter, in this case, is that there has been a long delay between termination of the relationship and the hearing of the proceedings. Even so, I am of the view that the date of valuation of the property of the parties, or either of them, should be the date of hearing. Establishing the pool of property and the value of that property at any other date may lead to a failure to have regard to what may be adjusted, or to the contributions made after the end of the relationship.

I shall, of course, give separate consideration to contributions made between separation and hearing. In relation to the Fairway Drive property, I shall bear in mind the resumption of part of that property after the end of the relationship but before the hearing.

In relation to capital appreciation, I maintain the view I expressed in Davies v Dabela [2011] NSWSC 12, that the financial contribution by the party who brought the relevant asset into the relationship should be regarded as the most significant pointer to the extent to which each party should participate in the capital appreciation of that property ( LW v GAB [2007] QCA 386 at [40]). That is particularly so, if, as here, the period of co-habitation (4 years and 10 months at the longest) is not sufficiently long enough to justify any substantial erosion, or diminishing, of the contribution of the property to the relationship. Then, I shall consider the contribution by the other party to that property. If that contribution requires an adjustment to be made, that adjustment may be calculated by reference to the capital gain in the relevant property.

However, as in WB v GSH [2008] QSC 346, I shall remember: "[49] ... that there is an important distinction between property that was contributed to the relationship and property which forms part of the pool of property which was owned by a party prior to the relationship, which is still retained by that party and which was never contributed to the relationship. The latter may still be the subject of a property adjustment order. The fact that it was not contributed to the relationship may have implications for any percentage adjustment to existing property interests and may justify a submission that, prima facie, a party who owned property prior to the relationship, who did not use it during the relationship, being property to which the other party did not contribute, should remain the property of the party who owns it. However, such property cannot be ignored even if the property does not constitute a contribution for the purposes of s 291. It is property against which an order might be made and is a matter which the Court must consider to the extent that it is relevant in deciding what order adjusting interests in property is just and equitable."

The classic example of property not used in the relationship is a gold bullion bar that was held in a safety deposit box by one of the parties before and throughout the relationship: EB v CT [2008] QSC 303 at [53].

In this case, there were disputes about most assertions, as to contributions and otherwise. It is convenient, now, to set out my view of the witnesses in so far as her, or his, evidence bore directly on the issues in the case. It has been necessary to closely evaluate the parties' evidence since credit assumed a decisive significance in deciding a number of these issues.

Bearing in mind that the Court is dealing with events that occurred as long ago as about 10 years, and no less than five and a half years ago, in expressing my views I remember what McLelland CJ in Eq said in Watson v Foxman (1995) 49 NSWLR 315 at 319: "... human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions of self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience."

I appreciate that in that case, his Honour was talking of a cause of action founded on s 52 of the Trade Practices Act 1974 (Cth) or s 42 of the Fair Trading Act 1987: see the discussion in Harbour Port Consulting v NSW Maritime [2011] NSWSC 813 at [10]-[18].

I also remember what Kirby J, although in dissent, said in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48: "[120] ... Some judges in the past regarded untruthful evidence - even about peripheral or irrelevant matters - as fatal to a litigant. Most judges today understand that the evaluation of evidence involves a more complex function, requiring a more sophisticated analysis. Courts, after all, are not venues for the trial of the parties' morality or credibility, as such. As judges often explain to juries in criminal trials, people sometimes tell lies in court and elsewhere for extraneous and irrelevant reasons, having nothing to do with the legal issues in the trial ... If this is true in criminal trials, it is equally true in civil trials. What is important is not the proof of untruthfulness, as such, but the significance (if any) of any demonstrated falsehoods for the issues at trial. That significance can only be judged when measured against the entirety of the relevant testimony. By its logical force, that testimony may well require that the falsehoods be ignored as irrelevant or immaterial to the decision-maker's ultimate conclusion. In particular cases, it may require the decision-maker, within the pleadings, to consider and decide a case different from - or even contrary to - that advanced by the party, because such is the legal entitlement of the person concerned ... [121] Obligations of this kind recognise the ultimate duty of the decision-maker in an Australian court to decide a case according to law and the substantial justice of the matter proved in evidence, not as some kind of sport or contest wholly reliant on the way the case was presented by a party. Litigants are represented in our courts by advocates of differing skills. Litigants are sometimes people of limited knowledge and perception. Occasionally, they mistakenly attach excessive importance to considerations of not real importance. In consequence, they sometimes tell lies, or withhold the entire truth, out of a feeling that they need to do so or that the matter is unimportant or of no business to the court. This is not to condone such conduct. It is simply to insist that, where it is found to have occurred, it should not deflect the decision-maker from the substance of the function assigned to a court by law."

As J Spigelman CJ observed in "Truth and the Law", Lecture delivered at the 2011 Sir Maurice Byers Lecture, 26 May 2011: "Witnesses can, without any dissimulation or propensity to lie, confidently assert the truth of conversations, observations and events which did not happen. The plasticity of memory impedes the truth finding process. This is not an uncommon phenomenon."

Finally, I also realise, as Cronin J did in Smyth & Pappas , at [14], that: "In disputes involving these sorts of relationships, it is conceivable that two people intimately connected to each other in one way or another, can see the same thing in entirely different ways. On some aspects, however, the evidence does not permit a finding of innocent or mistaken belief, or recollection, or one or other party seeing the same thing in entirely different ways.

The Plaintiff was cross-examined for approximately 5 hours over two days. Shortly after the commencement of the cross-examination, with the express concurrence of the parties, having been told that she was prepared to do so, and because I considered that the interests of justice required her evidence regarding the de facto relationship and the financial circumstances of the Plaintiff commencing April 2000 and continuing during the period of the de facto relationship for part of which time she had received income from Centrelink to which she was not entitled, I granted a certificate pursuant to s 128 of the Evidence Act 1995 in respect of that evidence. (The parties, in fact, joined in requesting that the court require the evidence to be given and did not require written reasons for the grant of the certificate.)

It was submitted by the Defendant that the conduct of the Plaintiff in dealing with Centrelink in this way demonstrated dishonest conduct.

Whether the Defendant told the Plaintiff not to inform Centrelink about their relationship does not really matter. The fact is that the Plaintiff did not do so until well after the end of their relationship, and at, or about, the time of the commencement of the proceedings. It seems likely that the commencement of this matter played a part in motivating her to do so.

The Plaintiff asserts that she made full disclosure to Centrelink and that she had a debt of $29,000 to it, which debt she was paying off at $80 per month. Since it has been reported to Centrelink, I shall note her previous conduct and consider her evidence in the light of such conduct.

I comment that I think it more likely than not that the Defendant knew that the Plaintiff was receiving Centrelink payments during the course of their relationship and that he understood that there was some inappropriate financial advantage to be gained by doing this.

Another matter upon which the Plaintiff was cross-examined related to the non-disclosure, in her affidavit evidence, about the income she had been receiving from boarders who lived with her in the Radcliffe Place property since the date of separation. There were, however, some references to boarders in her affidavit evidence.

On the second day of the hearing, rent receipt books were produced to the Defendant's legal representatives, and, ultimately, a schedule of income received was produced as an aide memoire. I have earlier referred to this income.

The receipt of income from a jointly owned asset is a relevant matter and it should have been disclosed earlier, and, more specifically, in the Plaintiff's affidavit evidence in chief. I am unable to say that it was not disclosed in order to mislead the Defendant and/or the Court. Yet, the failure to disclose the income and/or the rent receipt books until such a late stage in the proceedings, is also a relevant matter to be considered in weighing the Plaintiff's evidence.

Another criticism made of the Plaintiff by counsel for the Defendant was the way in which the Plaintiff gave evidence in cross-examination. She did not allow him to finish the question before she endeavoured to answer it and as a result some of her answers to his questions were unresponsive.

In regard to this criticism, there is little doubt that the Plaintiff endeavoured to anticipate what counsel was trying to get to, rather than allowing the question to be completed and then focussing on that question. It was necessary, on a number of occasions to ask her to concentrate on the question that was being asked and answer it. An explanation was given that her counsel would have an opportunity to re-examine her.

Having observed the Plaintiff in the witness box, I do not think that she was doing this intentionally, with a view to making it difficult for the Defendant's counsel, or for the Court. It was clear from her answers to some questions, towards the end of the cross-examination, that she believed that the Defendant misled her into believing that they would have a life together. She was upset and hurt that he had asked her to marry him, she had accepted, and, then, after the date for the marriage had been set, invitations sent, relatives had arranged to attend the wedding from overseas, that he did not do so. In this regard, her emotion was justified.

She also felt that he had encouraged her to work hard in his businesses, for which work she was not paid (for the most part), and that he had ended the relationship without actually telling her and without compensating her, in any way, for what she had done. The level of her emotion became obvious in some of her answers in cross-examination.

These matters, at least in part, explain, her desire to inform the court that she was aggrieved by the Defendant's conduct. However, except to the extent that they relate to contributions and then to what is just and equitable, the matters referred to, are not particularly relevant to the issues to be decided in the case.

The extravagance of the Plaintiff's claim (she sought an order that the Defendant pay her $2.5 million) was another matter that counsel for the Defendant submitted I should take into account in determining her truthfulness. He submitted that her claim, without more, demonstrated that she was prone to exaggeration. There is no doubt that her claim is an extravagant one. However, I do not think that it demonstrates that she was prone to exaggeration.

Despite these matters, I found the Plaintiff, generally, to be a credible and convincing witness. Overall, she struck me as truthful.

Despite taking into account the frailty of human memory, and also that, without malice, a person can believe that he remembers things that he has convinced himself must have happened, or because someone has successfully implanted the idea, I formed an unfavourable view of the Defendant's credibility and reliability as a witness.

For the following reasons, as well as my observations of the Defendant in the witness box, I am satisfied, on a number of important issues, that the evidence of the Plaintiff is to be preferred to the evidence of the Defendant where their evidence is in conflict. That my view is not unduly harsh is demonstrated by what follows.

It was clear that parts of his sworn affidavit evidence were simply wrong. He accepted in cross-examination, that: (a) Despite his acknowledged care in preparing the first affidavit, it had been necessary to make a number of corrections to matters stated in that affidavit. (b) After reading other affidavits, it was necessary for him to make a number of further corrections to his affidavits. (c) He had wrongly stated that he received monthly amounts from Mr Byrne, which amounts he deposited into a particular bank account. In fact, he did not receive monthly amounts, every month, and he had not deposited each of the amounts that he did receive into that particular bank account. The monthly payments had been made at irregular times, as disclosed in a document (Ex. H), and, on at least one occasion, had been deposited into a different account. (d) He had based part of his evidence, not on his own knowledge, but on what he had been told by others.

Specifically, I did not find the Defendant's evidence upon the following matters to be plausible: (a) He gave evidence, in cross-examination, of a conversation with the Plaintiff in about mid to late October 2005, when he said to her that their relationship was over. For the first time, on the second day of him being cross-examined (on 30 August 2011), he gave evidence of this conversation. Whilst he accepted that the conversation was an important one, no such conversation was referred to in any of his affidavits. He had not given any oral evidence of such a conversation at any time earlier. His counsel had not put to the Plaintiff that such a conversation had occurred, despite having put a number of other matters, upon which he had been given instructions, to the Plaintiff or her witnesses. Furthermore, it is inconceivable, if such a conversation with her had occurred, that the Plaintiff would have continued to work in the Defendant's businesses until about mid-January 2006 on the basis that she had been, and without demonstrating any observable emotional reaction to what she had been told. For example, the Defendant's sister, Mrs Leonie Duffy, to whom I shall refer later, did not mention having observed any emotional conduct on the part of the Plaintiff after the long weekend in October 2005. Furthermore, neither the Defendant, nor any witness called on his behalf, gives evidence in his, or her, affidavit, of having observed any change in the Plaintiff's involvement in the business, after the long weekend in October 2005, or otherwise after mid-October 2005. I accept the Plaintiff's, Ms Cronan's, and Ms Chelsey Prior's evidence about the Plaintiff's attendances, after that date, at the Defendant's business. Even Mrs Duffy gave evidence of the Plaintiff continuing to work until Christmas 2005. (b) The Defendant asserted "numerous" emotional telephone calls between them following the long weekend in October 2005 (when he says the relationship ended). He does not refer to these conversations in any of his affidavits. Furthermore, the Plaintiff was not cross-examined, at all, on the subject of emotional telephone calls having taken place between her and the Defendant in that period. Neither the Defendant, nor any witness called on his behalf, give evidence in his, or her, affidavit, of having observed any change in the Plaintiff's demeanour, or attitude, towards the Defendant, after the long weekend in October 2005. One might have expected the emotional state described by the Defendant to have revealed itself to one, or other, persons with whom the Plaintiff worked. (There was only one occasion referred to in the evidence on which the Plaintiff was observed to be crying whilst at work. That was in about December 2005.) In this regard, I also refer, once again, to the evidence of Ms Cronan who does not refer to any conversation with the Defendant in their meeting, in November 2005, in which he told her of the end of his relationship with the Plaintiff a month earlier. The evidence on which both parties agree is that the Plaintiff worked in the business, for only a short time, following her return from Queensland in January 2006, by which time, it was clear that her relationship with the Defendant was over. At this time, the Defendant asked her for the keys to the office and factory. The Plaintiff's conduct, thereafter, is far more consistent with it being made clear to her, then, that the relationship was over. A few days later, she telephoned the Defendant and said that she did not think she should be helping him in the business any longer. (c) The Defendant, in January 2006, asked the Plaintiff for the keys to the factory because he had lost his and not because the relationship was over and that he was content to have her continuing working in the business. If, in fact the conversation were as he asserted, he would have expected her to continue without wages, or other remuneration, as she had been since after April 2001. This challenges commonsense, even if she were permitted to continue to have access to a joint bank account during the period that she continued to work. I accept the Plaintiff's evidence that it was the conversation, in January 2006, which resulted in him making it clear, and her realising, that their relationship was over. (d) The conversation that the Defendant said that he had with the Plaintiff about the wedding. He denied that he said words to the effect that effect "I want to postpone the wedding" and asserted that he had said: "I want to cancel the wedding". The evidence of the Plaintiff, who said that the Defendant had spoken in terms of "postponing the wedding" is much more believable. Ms Cronan corroborates this evidence referring to a conversation with the Defendant relating to the wedding being "postponed". I also note Ex. K, which is a document in the handwriting of the Defendant, which I find was written on a date after 22 August 2005, in which the words "the Wedding Postponement" are found. (e) His assertions as to when the relationship ended (whether or not he told the Plaintiff that it had). Ms Cronan gives evidence of a conversation with the Defendant in about November 2005 (the same conversation in which he used the phrase "postpone the wedding") in which he said "If things don't work out with us (meaning he and the Plaintiff, I would always look after her". This is hardly consistent with the relationship having ended at that time. (I consider, in this regard, that the conversation referred to was likely to have been in September or October, rather than in November 2001.) The Defendant accepted that, on at least two or three occasions after October 2005, he and the Plaintiff went out together socially, or otherwise attended a function together. On one of these occasions, the Plaintiff's daughter was with them. I found his evidence about the nature of these occasions unconvincing. The Defendant also did not deny that, on Christmas Day, 2005, he had told the Plaintiff that he loved her as they left the restaurant where they and Chelsey had had a late lunch. This is hardly consistent with the Defendant having ended the relationship. (f) The Plaintiff did not work from home after April 2001. I accept the evidence of the Plaintiff and her daughter in this regard, especially as it appears to be consistent with the general description of the type of business being conducted by the Defendant. (g) That the Defendant had not said that he would make her a co-director of his company. Ms Cronan gave evidence that the Defendant told her about this and she had remembered his statement about making the Plaintiff a co-director "because it is a big statement to make". I prefer her evidence. Counsel for the Defendant submitted that the reality was that he did not do so. However, this does not mean that he did not say that he was going to do so.

Five additional matters should be mentioned as they further justify my conclusions regarding the Defendant: (i) He had provided various documents to a Bank, in order to borrow funds, the contents of which documents did not disclose the true state of his financial affairs (Ex. C and Ex. F) and which documents he knew were a sham. (ii) He had stopped making mortgage payments on the Radcliffe Place property in the hope that this might result in the sale of that property - he was "attempting to force a sale". This is a different reason than that provided in his first affidavit, which reason was inability to assist financially because of the current economic climate. That reason might have been a relevant one between May and September 2007. However, in September 2007, he received almost $2.8 million. He admitted that, then, he did not do so because he "was hoping we would be able to come to some sort of settlement". (After the proceedings concluded, part heard, on 8 June 2011, the Defendant paid one half of the arrears and one of the mortgage instalments.) (iii) The Defendant could not recall whether he had lodged any documents with the ATO relating to the Plaintiff's employment in the business. Bearing in mind the evidence that he had paid her no wages, superannuation, or any other employment emoluments of any kind, it seemed he is unlikely to have done so. He certainly did not provide her with any Group Certificate. He was not prepared to acknowledge this in the witness box. (iv) Although not stated in his affidavits, the overall content of which seemed to down-play the nature and extent of the Plaintiff's contributions, he acknowledged in the witness box that throughout their relationship, the Plaintiff had been dedicated, trustworthy and an extremely hard worker in his business. There was no reason for him not to have acknowledged this, fully, and frankly, in his affidavit and no reason for not doing so was offered. In my view, he had painted a somewhat different picture in his affidavits. This contrasts with the Plaintiff's affidavits in which the Defendant's contributions, for example, to the welfare of the Plaintiff's daughter, Chelsey, are acknowledged. (v) There was a "striking similarity" between a conversation asserted in his affidavit and the conversation in Mr Byrne's affidavit (to which I shall return).

I shall deal with the alleged loan by Mr Byrne to the Defendant in more detail later in these reasons.

The Plaintiff's daughter, Chelsey, was cross-examined. I have no doubt that she was a witness of truth and I accept her evidence. Whilst it is true that she was a young girl when the relationship commenced, she seemed to have a good recollection of the events, particularly those in which she was involved. Her evidence, broadly, corroborated the evidence of the Plaintiff.

Some criticism was made about her evidence regarding when the relationship had commenced. She stated that she had a conversation with the Plaintiff about moving in with the Defendant "when I was 11 years old". Her 11 th birthday was in mid-March 2001. It was submitted that I should conclude that this meant that the Plaintiff and she did not move into the Fairway Drive property until after her 11 th birthday.

However, in cross-examination, she confirmed that she and the Plaintiff "had already moved in" with the Defendant at the date of her 11 th birthday and that in her affidavit she had meant the year of her 11 th birthday. I accept her evidence in this regard. It was easier to accept this evidence in light of the Defendant's first affidavit, in which he stated that "in about March 2001, ... the Plaintiff moved into my home at ... Fairway Drive ...".

This supports the Plaintiff's assertion that the relationship commenced earlier than the date suggested by the Defendant.

The Plaintiff's daughter, in cross-examination, stated that the Defendant was still in the Radcliffe Place property in January 2006. In her affidavit, she had stated they "continued to live together until January 2006". This Paragraph was not disputed by the Defendant in his late affidavit in reply and is inconsistent with his evidence that he moved out in October 2005 and did not return to live there.

The Plaintiff's daughter also corroborated the Plaintiff's evidence about the nature, type, and duration, of the work that the Plaintiff performed in the Defendant's business. Because of her age, she attended with the Plaintiff when the Plaintiff was at work, on many occasions, particularly after school and on the weekend. She was able to recollect the times during which she would be at the Defendant's factory, with the Plaintiff, and she described what the Plaintiff would do at those times. She could remember being there sometimes until late in the evening.

For example, the Plaintiff's daughter said that she often had to take taxis, or that the Defendant would drop her, to school because the Plaintiff was at work "either at the factory, mostly in the office, and sometimes ... at home". She also says that, after school, if she went to the business premises, she would do her schoolwork there. During the week, it was usually always dark outside and late at night when they would leave.

The Plaintiff's daughter describes some of the work that she, herself, would do to assist in the business, such as folding brochures and letters and putting them in envelopes, or putting brochures under car windshields or in letter boxes. As she got older, she would assist in other ways. The Defendant admits that she did some work "such as packing food, waitressing at functions, cleaning out the storeroom, kitchen and/or freezer and dry food room". He states that she was paid, either by the Plaintiff or by him.

I accept the evidence of the Plaintiff's daughter, particularly where it conflicts with the evidence of the Defendant.

Each of the other witnesses whose affidavit was read in the Plaintiff's case was cross-examined. Based upon that cross-examination, there is simply no reason to disbelieve the evidence of each of these witnesses and I accept that evidence. The Defendant's counsel did not submit that I should not.

I have earlier mentioned the evidence of Lisa Ann Cronan. She gave her evidence clearly and without any prevarication. There was no suggestion of any bias in favour of the Plaintiff and it was not put to her that she was giving evidence only to assist the Plaintiff. She was an impressive witness. The only error I accept that she may have made relates to the date of the conversation with the Defendant relating to postponing the wedding. However, this relatively minor error does not, in my view, adversely affect her evidence.

In her affidavit, Ms Cronan corroborates the Plaintiff's evidence about the work she was required to do and the times that she observed the Plaintiff being in attendance in the office or in the factory. She also identifies the Defendant and the Plaintiff as the persons to whom she was answerable. However, it was the Plaintiff who she described as "her main point of contact".

Mr Russek, who met the Plaintiff in 1987 and the Defendant in 2001, was cross-examined about his observations of what the Plaintiff did at work and "the time and effort Helen put into running the business that she was involved in with Graham". He describes a conversation with the Defendant, in which the Defendant stated that the Plaintiff is "basically running the place" and that he "would be lost without her. She organises all the chefs ... she organises all the orders".

Mr Van Impelen, worked in the Defendant's business in NSW between about October 1998 and March 2007 (except for most of 2005). Therefore, he was an employee of the Defendant during the whole of the de facto relationship of the Plaintiff and the Defendant.

He, also, spoke of the work that the Plaintiff performed in the deceased's business. He was employed between Thursday and Sunday. He gives evidence of his observations of the Plaintiff working at the Defendant's office at North Rocks, answering the telephone and making booking for functions.

He states that he would speak to the Plaintiff, generally, by telephone, on Thursday evening, to ascertain if there was any work available on the weekend and that he would attend the factory about half an hour before he was required on either Saturday or Sunday.

He stated that the Plaintiff attended at the factory between about noon and 7:00 p.m. on most Saturdays that he attended. He said he would speak to her, by telephone, at about noon and then see her when he attended before, and then again after, the function at which he was to work. (This evidence is inconsistent with the evidence of Mrs Duffy.) He said that he had even seen her mopping the factory floor.

It was a short time after his return in late 2005 that he observed the Plaintiff crying and when questioned she told him that she was having some "difficulties at home" with the Defendant. He remembered that she ceased working in January 2006.

Ms Fox, the Plaintiff's sister, who visited the Plaintiff three or four times a year, for periods of two or three days at a time, described the work she observed the Plaintiff doing at home, and at the factory, when she attended there with the Plaintiff. On an occasion, she went with the Plaintiff to the factory, at around midnight, to deliver wages.

She also confirmed that several times in 2002, the Plaintiff and the Defendant attended at training sessions for chefs with regard to Queensland Spit Roasts, another business conducted by the Defendant, which business employed Ms Fox. (This evidence is inconsistent with the Defendant's assertion, in his first affidavit, that the Plaintiff had nothing to do with his interstate businesses.)

It was to Ms Fox that the Defendant disclosed, in about August 2005, that he was "having second thoughts about the wedding". It was she who organised a counselling session for them to attend at that time.

In relation to the Defendant's witnesses, I was unimpressed with Mrs Duffy. She was dogmatic about matters that, it seemed to me, she ought not be. For example, she asserted that she was "100 per cent certain" that the Plaintiff had not worked after December 2005. When it was pointed out that even the Defendant accepted the Plaintiff finished working in his business in mid-January 2006, she accepted that she had made a mistake, but said she "thought" that what she said was correct.

She stated, repeatedly, that she spent a significant amount of time in the office and the factory from which the Defendant's business was conducted and that she was an integral part of that business ("I was there 7 days a week"). This was inconsistent with the Defendant's evidence, which was that for about 6 months she had been "locked out" of the business premises because he regarded her work as "sloppy" and that when she returned she was involved as a chef and waitress and not with the business administration.

I formed the view that Mrs Duffy was attempting to minimize the role the Plaintiff had played in his business. Overall, I found her to display a somewhat entrenched approach to matters concerning the Plaintiff. I do not accept her evidence where it is inconsistent with the evidence of the Plaintiff or any of her witnesses.

It was difficult to know what to make of the evidence of Mr Byrne who gave evidence going to establish a debt said to be owed to him by the Defendant. There are causes for concern about his evidence. I shall mention several.

The agreement about advancing moneys is claimed to have been an oral one that was made in 1999. There was an extraordinary similarity in the words used in the affidavits relating to the conversation between Mr Byrne and the Defendant, to which each had deposed in his affidavit. Apart from a few words, the conversations stated were in almost identical form. It is highly unlikely that they could have had materially identical recollections, so many years after the event, and, accordingly, I have little confidence in the reliability of the affidavit evidence of each deponent on this topic.

It was clear that Mr Byrne and the Defendant had signed documents, being a residential lease agreement and a commercial lease agreement with the intention of those documents being provided to a Bank from whom the Defendant was seeking to borrow money. Neither had any intention to enter into the leases and each knew that the lease documents were a sham. Mr Byrne did not go into occupation of either premises referred to in the lease and did not ever pay any rent as required in either lease.

Mr Byrne prevaricated when it was put to him that these documents were false documents, finally saying, somewhat grudgingly, "I guess you could say that".

I have real doubts about the existence of any loan made by Mr Byrne to the Defendant. Firstly, the total amount said to have been loaned was over $700,000. The alleged loan agreement was not supported by any documents. Mr Byrne agreed that to establish the loan, the Court would have to accept the truthfulness of the two parties to the loan as there was virtually no objective evidence to substantiate any loan agreement.

Mr Byrne said that in 2005, the Defendant had been the subject of a tax audit by the Australian Taxation Office, when the topic of the loan had been raised as a matter of interest, and at that time, the 1999 conversation had again been discussed. One might have expected, following a tax audit, that there would have been some attempt at documenting the loan transactions in a formal way. There was none.

Mr Byrne accepted that if either he, or the Defendant, had died, there would have been real difficulties establishing what amounts had been advanced by, or what had been repaid to, Mr Byrne.

The Bank records that were produced did not demonstrate, clearly, what they were said to show, namely that moneys had been repaid to Mr Byrne as part of this loan transaction.

To discharge the burden of proof on the existence of the loan and the amount said to remain owing to Mr Byrne by the Defendant, I must feel an actual persuasion of its existence. In Briginshaw v Briginshaw (1938) 60 CLR 336, pp 361-362 Dixon J said: "The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality ... it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences."

Despite these matters, it is necessary to consider the possibility that there was such a loan agreement between the Defendant and Mr Byrne. The Plaintiff accepted that there was some relationship that involved monetary transactions between the Defendant and Mr Byrne. If one accepts the evidence of each as to the transfer of money between them, these transactions, some of which had clearly not been disclosed in the evidence of either, involved hundreds of thousands of dollars. For example, the Defendant asserts that he paid $428,000 to Mr Byrne from the proceeds of sale of part of the Fairway Drive property that was resumed.

Having observed each of the Defendant and Mr Byrne in the witness box, and having considered the limited material available to reach a decision, I cannot be satisfied of the existence of the loan agreement between the Defendant and Mr Byrne. Even if I were satisfied that there had been such a loan agreement, I could not be satisfied of the amount currently owing by the Defendant to Mr Byrne.

I do not think this conclusion will impact significantly on the result of the case.

Mr Spero, the Defendant's accountant also gave evidence. There is no reason not to accept his evidence. Part of that evidence includes that in 2003, the Defendant's taxable income was $18,000; in 2004, it was $20,000 and in 2005, it was $28,628. Whilst it was accepted that these amounts were amounts accepted by the ATO following negotiations during the audit, it is necessary to bear these in mind when considering the financial contribution of the Defendant during these years.

Mr Spero did not give any evidence about his knowledge of the alleged loan by Mr Byrne to the Defendant. Considering that he was "completely involved" with regard to the process involving the Australian Taxation Office, this is a surprising, and unexplained, omission from his evidence.

The Defendant's brother, Gary, was cross-examined also. I formed the view that he, too, was attempting to diminish the role that the Plaintiff played in the Defendant's business. However, I note that his involvement was in the office, whilst the Plaintiff worked in the office and in the factory. I do not accept his evidence that the Plaintiff rarely attended the office, or that she only attended with the Defendant and then only for a short time.

There are some facts that are not in dispute, or which I find have been clearly established on the evidence. These are: (a) The Plaintiff was born in February 1966 in Evesham, England. She immigrated to Australia in 1972. (b) The Plaintiff's child, Chelsey, was born, of a prior relationship, in March 1990. (c) The Defendant was born in October 1957. He was never married and had no children from any previous relationship. (d) There were no children of the parties' relationship. (e) The Plaintiff and the Defendant met in April or May 2000. From about July 2000, the Defendant stayed, on occasions, overnight, at the home unit of the Plaintiff, which was rented accommodation in Merrylands. On some occasions, the Plaintiff would stay with the Defendant on weekends. The keys to the Plaintiff's rented accommodation were returned in mid-April 2001. The Plaintiff was then receiving a sole parent pension of about $218 per week. She was earning some additional income. (f) Between about late June 2000 and April or May 2001, the Plaintiff worked in the catering business of the Defendant in the office. She was paid about $500 per week during this period. She used some of the wages she received to pay for expenses of the Defendant's business and part of it for household expenses. She says that she was left with about $100 per week for herself. (g) During at least a part of this period, the Plaintiff was also running her own business (which provided desktop publishing, secretarial and MYOB accounting services). Some of her income was also used for the business and for joint expenses. (h) The Plaintiff and the Defendant moved into the Radcliffe Place property, with the Plaintiff's daughter, in, or about, July 2003. The Plaintiff continues to reside there. She has rented out some of the bedrooms in the property and receives an income from this. At the date of the hearing, her daughter and her boyfriend rented one room, another couple rented a room, and two single persons each rented one other room. (I have earlier referred to the Plaintiff's evidence in this regard.) She has used the rental income as part of moneys paid toward the mortgage instalments or she pays bills. She does not always bank all of the rental income, which she receives in cash. (i) From the time she moved into the Radcliffe Place property, the Plaintiff had access to moneys brought home, or placed in the joint account, from the Defendant's business. On some occasions, she was given money, or told to take it, by the Defendant, part of which money she used for herself and for the running of their household. She only used money obtained from the Defendant for clothing and other personal items for herself with the knowledge and consent of the Defendant. (j) The Defendant arranged the payment of the utilities and outgoings on this property. (k) At the end of their relationship, the Defendant gave the Plaintiff some amounts of money from his wallet. In about February 2006, he gave her about $25,000. (l) At no stage of their relationship, was the Plaintiff a signatory on the Defendant's business bank account. However, in 2005 and 2006, they did conduct one joint bank account in respect of which each had a card with which to access the account. The Plaintiff agreed that she withdrew about $33,123 from this account between September 2005 and September 2006. However, some of this amount may have been used for business expenses. (m) During the relationship, the Plaintiff performed most of the household duties, including washing, cooking, some cleaning and ironing at residences occupied by the parties. How much time was spent performing these duties remained in dispute. A cleaner was, or cleaners were, employed for a period of time, during the time that the parties lived at the Fairway Drive property and also at the Radcliff Place property. Sometimes, the Plaintiff paid, and at other times the Defendant paid for the cleaner or cleaners. The Plaintiff did the majority of the additional cleaning as was necessary. On occasions, the Defendant some performed household duties also. For a period of time, laundry was taken to, and collected by, one, or other, of them, from a laundromat. (n) During their relationship, they ate out regularly and often bought take away food to eat at home. When they went to restaurants, it was the Defendant who paid most of the time. More usually, he would also pay for the take away meals. The Plaintiff would try to cook meals at home once or twice a week. (o) In about June 2002, the Plaintiff went overseas with the Defendant's niece. Later, the Defendant, Chelsey and another friend joined them. The Defendant returned from this trip earlier than did the Plaintiff. After his return, he sent money to her as well as paying for her travel and accommodation expenses. He paid the bulk of her expenses on this holiday. (Some of the time during this trip she stayed with her relatives and there were no accommodation costs.) (p) During the period, in about 2002, when the Defendant's driver's licence was suspended, it was the Plaintiff who drove him around. On some occasions, he would take taxis. (q) On different occasions, the Plaintiff went to Brisbane to visit the work premises of the Defendant. I have referred to some of the evidence relating to these visits earlier. (r) The Defendant provided financial and emotional support for the Plaintiff's daughter. He often helped her with homework and with some school assignments; he would regularly take her to school; and, overall, he was content to include her in the parties' joint activities. The Plaintiff accepts that the Defendant "treated Chelsey with affection, love and like a daughter". (s) In about 2003, the Defendant gave the Plaintiff $3,000 to assist her to pay out the lease on her car.

I required the parties to prepare a joint statement relating to the divisible pool of property. To be included was a description of the parties' property, or the property of either of them, and its value at different times. They did so and I set out the table for each relevant time.

Sensibly, they agreed that the difference of a few months (depending upon the factual findings) would not alter, in any material way, the property, or the value attributed to each. Apart from the matters to which I shall refer, the parties accepted as accurate the contents of the joint statement. March or April 2001 (commencement of cohabitation) Assets Liabilities

In relation to the Plaintiff's interest in the Kingswood property, the Plaintiff had exchanged contracts to purchase this property on 4 October 2000 and she completed the contract on 6 July 2001. The purchase price was $200,000. A deposit of $20,000 was paid, which included an amount of $5,000 that she said he lent to her (but which later he seemed not to require her to repay). The Plaintiff obtained a loan from the ANZ Bank for $160,000 to assist with the purchase.

The Plaintiff said, in an affidavit sworn 9 October 2009 (at [17]), that she "contributed $35,000 from my own funds". Of that amount $15,000 (or $20,000, if $5,000 was advanced then by the Defendant) was used for the deposit. She stated that the balance had been saved also and that the amount that she contributed ($35,000) included $4,000, which had been given to her by her mother.

The Defendant submits that the balance (about $20,000) came from moneys that the Plaintiff received from the Defendant, or from the business conducted by him, and, in those circumstances, the Plaintiff's equity at the commencement of the relationship was $20,000 (and not $40,000). He did not make any such assertion in his first affidavit read in the proceedings. He simply asserts that he gave her $5,000 "that she applied towards the deposit for the purchase of the Kingswood property".

Despite swearing an affidavit in reply on 8 June 2011, which was said to be in response to the Plaintiff's affidavit of 9 October 2009, the Defendant did not respond to the Paragraph in which the Plaintiff had made that statement. He did not assert, for example, that the amount of $20,000 came from the funds of the business, or otherwise from him. He did not produce any financial records that demonstrated the withdrawal of amounts between December 2000 and July 2001 that might have been used for the purchase price.

In cross-examination, it was put to the Plaintiff that from the commencement of the relationship with the Defendant, she had access to cash funds. She accepted she did, but denied that other than $5,000, what she had paid had come from the Defendant or his business. She also said that the reason for the delayed settlement "was because I was having trouble getting the finance. It was not because I was trying to get more money together".

I am satisfied that the Plaintiff's contribution was $40,000 to the purchase price of the Kingswood property, of which $5,000 came from the Defendant.

Having come to this conclusion, it can be seen that, at the commencement of the relationship, the Plaintiff had property with a total value of $67,000 and liabilities of $8,000. The Defendant had property with a value of $2,375,500 and liabilities of $1,055,000, or, despite my earlier conclusion, if one accepts the alleged debt due to Mr Byrne, liabilities of $1,176,200.

The total net value of the property of the parties, or either of them, was $1,379,500 (or $1,258,300) at the commencement of the relationship. The Plaintiff had property with a net value of $59,000, whilst the Defendant had property with a value of either $1,320,500 (or $1,199,300). Accordingly, the initial contribution of each, in percentage terms, was about 4.3 per cent to the Plaintiff and 95.7 per cent (or 4.7 per cent to the Plaintiff and 95.3 per cent to the Defendant).

At the date of separation, the property of the parties is as set out below. They agreed that whichever date was found to be the date of separation, the nature and value of the property was the same. October 2005 or January 2006 (Separation) Assets Liabilities

It can be seen that, at the date of the termination of the relationship, the Plaintiff had jointly held property with a total value of $730,855 and a joint liability, with the Defendant, of $573,000, and solely held property with a value of $10,000. (There is no dispute that the Defendant gave her $3,000, in about 2003, to pay the Plaintiff's debt due on the Subaru Forrester.)

The Defendant, at that time, had jointly held property with a total value of $730,855 and a joint liability, with the Plaintiff, of $573,000, and solely held property with a value of $4,824,325 and liabilities of $1,199,513 (or if, despite my earlier conclusion, one accepts the alleged debt due to Mr Byrne, liabilities of $1,922,913).

The total net value of the property of the parties, or either of them, was, at the date of termination of the relationship, $3,792,667, or if one includes the alleged debt due to Mr Byrne, $3,069,267. Therefore, during the relationship, it had increased by $2,413,167 (or $1,810,967).

Assuming ownership of one half of the Radcliffe Place property and one half of the liability thereon, to each of the parties, at the date of separation, the Plaintiff had property with a net value of $88,927 and the Defendant had property with a value of either $3,703,739 (or $2,980,339). Accordingly, the contribution of each, in percentage terms, at the end of their relationship, was about 2.3 per cent to the Plaintiff and 97.7 per cent (or about 2.9 per cent to the Plaintiff and 97.1 per cent to the Defendant).

This calculation supports the submission made on behalf of the Plaintiff that she was worse off, at least in percentage terms, at the end of the relationship than at the date of commencement. This may, at least in part, be explained by the fact that she earned no income during almost the whole of the relationship.

The nature and value of the property of the parties at the date of the resumption of the hearing is as set out below. Resumption Hearing (30 August 2011) Assets Liabilities

I have omitted from the additions what are described as "Add back No. 1" ($25,010) and "Add back No. 2" ($33,120). These are moneys advanced by the Defendant, for the use of the Plaintiff, at various times between September 2005 and September 2006. In the case of "Addback No. 1", there is no dispute that the amount was advanced to the Plaintiff following the termination of the de facto relationship. (There was no differentiation, in respect of Addback No. 2, of amounts spent before and after the relationship ended.)

I have done so, firstly, in relation to moneys advanced prior to the end of the relationship, because that is unnecessary if it is treated in part, or wholly, as a financial contribution by the Defendant. As to moneys advanced after separation, I consider correct, the statement in Marker v Marker (1998) FamCA 42: "There seems to be no appropriate basis for notionally adding back moneys that existed at separation but which have been subsequently spent on meeting reasonably incurred necessary living expenses. Neither the Family Law Act nor the case law require that parties go into a state of suspended economic animation once their marriage breaks down pending the resolution of their financial arrangements. Parties are entitled to continue to provide for their own support. Whether any expenditure so incurred is reasonable or extravagant is a matter that can be determined by the trial Judge."

Although that passage was stated in the context of the Family Law Act , in my view, the principle expressed is apt in cases under the Act (see: Kemp v French [2010] NSWSC 971 at [37]).

I shall, of course, take into consideration, as a financial contribution by the Defendant, these amounts, as there is no dispute that the Plaintiff received them.

It can be seen that, at the date of the resumption of the hearing, the Plaintiff had jointly held property with a total value of $805,000 and a joint liability, with the Defendant, of $573,000 and solely held property with a value of about $24,580. If I accept that she owes her brother $50,000, the Plaintiff has this additional debt.

The Plaintiff was not cross-examined on whether she owed her brother the amount stated. However, the Plaintiff's brother did not give any evidence to corroborate that he was owed any amount and there was no other witness to corroborate the Plaintiff's evidence in this respect.

However, forming part of the Plaintiff's evidence, read without objection, was a copy of a statutory declaration dated 10 September 2009, that states that the Plaintiff's brother organised an interest only loan for the purpose of lending the Plaintiff $50,000. In addition, a copy of a page of the Plaintiff's bank statement shows a deposit of $49,070 on 18 October 2007.

I am, therefore, satisfied that there is a debt due by the Plaintiff to her brother in the amount of $50,000.

I am also satisfied that the Plaintiff has retained the diamond ring ($13,000) that the Defendant purchased for her.

The Defendant, at the date of the resumption of the hearing, had jointly held property with the Plaintiff, with a total value of $792,000 (excluding the diamond ring) and a joint liability, with the Plaintiff, of $573,000, and solely held property (or his share of jointly held property with Deborah Prior) with a value of $3,640,450 and liabilities (or his share of joint liabilities with Deborah Prior) of $807,250, or if I accept the alleged debt due to Mr Byrne, liabilities of $1,087,650.

The total net value of the property, of the parties or either of them, at the date of the resumption of the hearing is, therefore, $3,039,780, or if I accept the alleged debt due to the Plaintiff's brother and to Mr Byrne, $2,759,380. Assuming ownership of one half of the Radcliffe Place property and one half of the liability thereon, to each of the parties, the Plaintiff has property with a gross value of $147,080 and the Defendant has property with a gross value of either $2,942,700 (or $2,662,300). Accordingly, the contribution, in percentage terms, is about 4.6 per cent to the Plaintiff and 95.4 per cent (or about 4.3 per cent to the Plaintiff and 95.7 per cent to the Defendant).

The evidence reveals that the Defendant sold part of the Fairway Drive property in August 2007 and that he received $2,781,850. He paid, from the proceeds of sale, $1,027,771, to discharge the debt secured on that property; he paid $200,000 to discharge the debt on the factory; he paid $9,657 for legal costs and disbursements on sale; and he paid $7,758 to Council on account of rate adjustments and arrears. He also paid $428,000 to Mr Byrne; he lost $100,000 on a failed investment; he paid an undisclosed amount to the Australian Taxation Office; $24,000 to his solicitors; the deposit ($64,600) and stamp duty ($27,000) on the Ermington property and part of the balance, at the date of the resumption of the hearing, as set out above, is $502,000.

It is the sale of part of this property and the utilization of the proceeds of sale that has resulted in the Defendant having fewer liabilities secured on property owned by him alone.

A de facto relationship, unlike a marriage, can commence and end without any legal pre-requisite or formality. Furthermore, unlike a marriage, which commences, and ends on a defined day, when a de facto relationship commences, and when it ends, can be the subject of some dispute and uncertainty. Often, it is impossible to conclude that the relationship began or ended on a specific day. (In stating the last matter, of course, I omit the circumstance of the death of one of the parties.)

The dispute and uncertainty exists because a de facto relationship tends to develop over time. Similarly, it tends to break down over time as well. Nevertheless, in this case, the Court must determine when the de facto relationship commenced and when it ended. The end of the relationship is often not clear or finite.

In this regard, I refer to what was said by Bryson AJ in Dion v Rieser [2010] NSWSC 50 at [14] that: "[14] A de facto relationship is a continuing course of conduct and behaviour, not an event at a fixed point of time. No matter how close their involvement in each other's emotional lives, a conclusion that people are living together as a couple involves consideration of the circumstances in which they are living, including the places at which they are living. The test is not primarily locational, but it has a locational element. Judicial consideration of separation intervals during a relationship has not been extensive and has usually related to relatively short intervals such as holidays or hospitalisations. Once a de facto relationship exists its termination is not readily assumed. In Howland v Ellis [2001] NSWCA 456 at [20], Stein JA said: 20 However, more than a mere physical separation is required for a de facto relationship to come to an end. The physical separation of the parties must be accompanied by an intention on the part of either partner to permanently end the relationship. Meagher JA and Ipp AJA concurred. Stein JA made this observation in relation to a well-established de facto relationship in which there was a physical separation when one party was arrested, held without bail and later sentenced to imprisonment. The relationship continued for several years in the intentions of the parties, and also according to their conduct subject to the severe limitations of imprisonment. This opinion establishes that physical separation is not inconsistent with the continuance of the relationship."

Nor is it possible to apply some mathematical formula to the activities of the parties and determine whether the relationship has commenced or ended. There can be no doubt that a de facto relationship, like a marriage, may include periods of separation. Thus, the relationship ends when one, or both, of the parties form the intention to sever, or not to resume, the relationship and he, she, or they act on that intention.

Casual acts of sexual intercourse do not, necessarily, constitute an interruption of the separation of the parties. The separation must have finality about it. What the Court must do is examine and contrast the state of the relationship before and after the date on which one party or the other states the relationship ended. Even then, the ending of the relationship must have permanence rather than being a temporary suspension: Smyth & Pappas at [11]. As was, in that case, said by Cronin J: "There can be uncertainty about the future while living apart but the de facto relationship goes on even though the partners are not doing all of the things together that they had previously done. The keeping apart has to have finality about it and that is best seen where the de facto relationship has none of its previous characteristics any longer. For example, some parties whose de facto relationship has ended, continue to parent children and perpetuate financial interdependence but they do so in a way which can only be objectively described as different from what had occurred previously when to a large degree, the relationship was a functional one. The ending of the relationship must have a permanence about it rather than a temporary suspension."

The elements that are usually associated with the termination of a de facto relationship are: (i) The development of an intention to separate. That intention need not be mutual. (ii) The communication of that intention to the other party, which communication should be unambiguous and unconditional. (iii) Some form of action upon the determination to separate. (see, for example, Clisbey v Viges [2011] FAMCA 611 at [48])

The Plaintiff asserts that the de facto relationship commenced in February or, more probably, March 2001, and that it ended in January 2006. On her case, it was, therefore, just under 5 years duration. The Defendant asserts that it commenced in about April 2001 and ended in about October 2005. On his case, it was, therefore, of 4.5 years duration.

There is a document, in the handwriting of the Defendant, which refers to the date 31 March 2001 as the date the parties entered into a de facto relationship. The Defendant admits that he wrote the original of the document "in or about 2003".

I am of the view that the relationship commenced in about March 2001, principally because both parties seem to agree that it commenced when the Plaintiff moved into the Fairway Drive property. The Plaintiff and her daughter each stated, that, by the daughter's birthday, in mid-March 2001, they had moved into the Defendant's home.

The parties were to be married on 13 November 2005. A diamond ring, which was paid for by a cheque, written by the Defendant but drawn on their joint account, was purchased. Invitations to the wedding were sent out and the Plaintiff purchased a wedding dress. However, on an undetermined date, probably in about mid-to-late August 2005, the Defendant told the Plaintiff that he wished to postpone the wedding.

Between 23 August and 22 November 2005, the parties underwent some counselling. There were 11 attendances, although it is impossible to determine who attended on each occasion. Each, apparently, attended one, or two, sessions on her, or his, own. This suggests that the relationship had not yet ended.

It was upon the arrival of the Plaintiff's family from overseas that the Defendant moved out of the Radcliffe Place property. However, I am satisfied that he did not, then, tell, the Plaintiff that their relationship had ended or that he had no intention of returning to their home. The Plaintiff did not notice that he had packed up his things and left.

I am satisfied that he did return on one or two occasions and spent the night with the Plaintiff during the period whilst her family was there and despite his denial, I am satisfied that he returned when her family left Australia and that he remained living with the Plaintiff until about mid- January 2006.

In my view, in October 2005, the Defendant did not share, with the Plaintiff, any view he held, if, in fact, he held such a view, that their relationship was over. To the contrary, I am satisfied that he allowed her to believe it was continuing, albeit that he wished to postpone their wedding. In other words, even if he held the view, then, that the relationship was over, he did not act on that intention. Whilst an estrangement might have begun to develop after the long weekend in October 2005, as evidenced by referring to "difficulties at home" in December 2005, it did not crystallise into the termination of the relationship until January 2006.

I think it likely that the Defendant did not tell the Plaintiff because he did not want to lose the assistance that she provided to his business in the Christmas period, which was described as "extremely chaotic". He wished her to remain working in the business, as she had done. She did so until she believed that their relationship was over when she telephoned him and said: "I don't think I should be helping you any more with the business". This conversation occurred in mid-January 2006.

A common sense objective evaluation leads me to conclude it was then that the de facto relationship ceased to exist and that the parties, thereafter, no longer lived together.

Accordingly, the Plaintiff's claims under the Act must be approached on the basis that the relationship was of 4 years and 10 months duration commencing in March 2001 and ending in January 2006. I consider that a declaration to that effect should be made.

On any view, this is not a long relationship.

However, as has recently pointed out by Sackar J in Murgic v Murgic [2011] NSWSC 971 in relation to the significance of the duration of the relationship (in a different context): "96 There is a further issue of some relevance between the parties as to precisely what each intended in terms of the length of the relationship in respect of the property. The plaintiff's counsel asserts that this was to be a life long venture whereas on the other hand it is submitted by the defendant that this was not a venture to provide a joint home for the parties for life but rather a home for the defendant for life and for the plaintiff until such time as she moved out to marry and have her own family. In my view neither position of itself requires any particular adjustment by reason of that fact. It is in my mind immaterial what the parties intended, whether the relationship lasted short, medium or indeed long term. The Act in my opinion merely requires me to make the relevant adjustment of the interests of the parties of course taking into account the length of the relationship being the relevant period during which contributions of a financial or non financial direct or indirect were made."

Counsel for the Defendant submitted that I should ignore the Plaintiff's use of any income from social security benefits received, it being said that, as she had engaged in a criminal activity, she should not obtain the benefit of use of funds obtained thereby. Reliance was placed on Beattie v Reid [2002] NSWSC 1088; (2002) 31 FamLR 204 and Fletcher v Furnance .

Whilst there can be no doubt about the proposition that a person who deliberately sets out to breach the law cannot expect to be aided by a Court, in this case, the Plaintiff is not seeking to be aided by the Court. She has given evidence about the use to which moneys she received, albeit to which she may not have been entitled was made. This is a fact, and, in my view, the principle relied upon does not apply.

For example, in Fletcher v Furnance , McLaughlin AsJ "totally" rejected "the bold submission of the Plaintiff that any liability which she might have to repay Centrelink for moneys improperly obtained by her should be borne, as to one half of the amount of those moneys, by the Defendant".

In Beattie v Reid , also a decision of McLaughlin AsJ, his Honour concluded that "it to be highly offensive to public policy if I were to make an order the effect of which would be to award to the Plaintiff some share of the spoils of a criminal enterprise conducted by herself and the Defendant". The criminal enterprise, in that case, related to certain gambling activities.

In this case, the Plaintiff does not seek part of the amount of $29,000 repayable to Centrelink, or to obtain some spoils of a criminal enterprise. As she is repaying Centrelink, she is satisfying the financial obligation to it. She will continue to have that burden for some time.

In those circumstances, it would not be just, or equitable, to ignore the financial contribution made by her from her Centrelink payments.

The Defendant purchased this property, subject to mortgage, prior to the commencement of the relationship of the parties. It appears that the completion of the contract occurred in about March 1999. The purchase price was $1,350,000. The settlement statement shows some adjustments of water rates, penalty interest, and a registration fee on discharge of mortgage. Stamp duty on the contract was paid. The purchase price was borrowed and, so it is said, repaid by the Defendant alone, by borrowings from Mr Byrne or by the income from the business conducted by the Defendant.

There is no suggestion that the Plaintiff made any direct financial contribution to its acquisition and clearly she was not a party to the decision to purchase the property. She does not assert any direct financial contribution to its maintenance or conservation either.

However, the Plaintiff did work in the business without the receipt of any income, or other emoluments, from about April or May 2001 until January 2006. Doing this would have permitted the Defendant access to more of the business income.

I consider this to be a very small indirect financial contribution to the Fairway Drive property.

Yet, it was this property that provided accommodation for the parties and for the Plaintiff's daughter for some part of the relationship. There is no suggestion that the Plaintiff paid any rent, or occupation fee, to the Defendant for her, and/or her daughter's, occupation of this property.

In August 2007, the Defendant sold a part of this property for $2,781,750. From the proceeds of sale, the Defendant paid $1,027,771 to discharge the mortgage on the property; about $200,000 to discharge the mortgage on the Seven Hills property; about $9,657 for legal costs and disbursements; $7,758 for rate adjustments and arrears. He says he paid about $433,000 to Mr Byrne. About $100,000 was applied to a failed business, and payments were made to the ATO (the amount is undisclosed). There is about $500,000 left (which is identified in the balance sheet as at the date of the resumption of the hearing).

It was over 18 months after the end of their relationship that the Defendant paid the whole of the debt secured on the title to this property. The funds to enable this to be done came from the proceeds of the resumption of part of the Fairway Drive property. There is no suggestion of any direct, or indirect, financial contribution, by the Plaintiff, during this period.

There is no suggestion, in the evidence, of any improvement of the Fairway Drive property during the relationship or otherwise.

The Plaintiff claims to have made a non-financial contribution to the improvement of the Fairway Drive property in applying her labour to cleaning the house. Whilst she did do some cleaning, the evidence, which she did not dispute, is that for most of the time that the parties lived there, they had a cleaner. She also maintains that she made contributions in the capacity of a homemaker through the performance of household tasks such as shopping, ironing, and to the welfare of the Defendant. This is, undoubtedly, true.

Whilst she may have performed other domestic tasks, it does not seem to me that this contribution was very significant. No attempt was made to indicate how much time was spent in the capacity of homemaker or in the performance of household tasks. Also, the Defendant performed some domestic work. I must also bear in mind, the Defendant's contribution to the welfare of the Plaintiff and of her daughter.

There is some dispute whether this property was rented after the parties moved into the Radcliffe Place property. The Plaintiff gave evidence that she was aware that the Defendant rented the property for $650 per week a short time after they moved. The Defendant did not, specifically, deny this assertion in his affidavit in reply, but in his oral evidence, he said that he had a family of 10 people living there, as caretakers, from none of whom was any rent or occupation fee received. (He only gave this evidence for the first time in the witness box.)

All I am able to say about this aspect is that to the extent that rent was received, the Defendant retained that rent. The maximum amount of rent received, during the relationship, would have been $650 per week between about May 2005 and mid January 2006. Of course, there would have been costs of maintenance as well as expenditure on rates, taxes and the like during this period.

I bear in mind that this property was purchased some years before the commencement of the relationship.

The Plaintiff has submitted that there should be an adjustment of the interest in this property taking into account not only its present value, but also the proceeds of sale of part of this property. She describes the increase in value as "a windfall" increase to the value during the relationship and that "justice and equity" demands that "the Plaintiff be entitled to a percentage share of the windfall increase".

The Defendant submits that the property itself did not change in any way during the relationship of the parties and that the increase in value had nothing to do with the Plaintiff. Broadly, I agree with this submission. However, I shall take into account the increase in value of this property in determining what order is just and equitable.

The Defendant also owned the Seven Hills property prior to commencement of the relationship. Completion of the contract of purchase occurred in February 2000. The purchase price was $247,500. The settlement statement shows some adjustments of water rates, strata levies, fee for a s 109 certificate and a registration fee on discharge of mortgage. Stamp duty on the contract was paid. He used his own funds and borrowed moneys secured by mortgage on the property to fund the purchase. He paid all outgoings with respect to the property and the cost of improvements to it. The property, which is described as a factory, was used for the purpose of the Defendant's businesses.

Following the end of the relationship, the Defendant paid the debt secured by mortgage on this property from the proceeds of sale of part of the Fairway Drive property.

The Plaintiff does not suggest that she made any direct financial contribution to the acquisition, conversation, or improvement of this property, or that she was a party to the decision to purchase it. However, she worked in the business without the receipt of any income, or other emoluments, from about April or May 2001 until January 2006. Doing this would have allowed the Defendant access to more of the business income that was used to pay the outgoings.

I shall treat this as part of her indirect contribution to this property.

The Defendant continues to occupy the property, which he uses for the operations of his NSW business. Through the business, he continues to pay all outgoings on the property, which, of course, is currently unencumbered.

Again, I shall take into account the increase in value of this property in determining what order is just and equitable.

The Plaintiff exchanged contracts on a property at Joseph Street, Kingswood ("the Kingswood property") in October 2000. Settlement of the purchase occurred in July 2001. The purchase price disclosed on the Contract was $200,000, of which the Plaintiff contributed $20,000 (the deposit) and borrowed the balance ($160,000). The term of her loan was 25 years and she was required to make weekly payments of no less than $275. The Defendant gave her $5,000 to assist her. The Plaintiff contributed the balance ($15,000).

The associated costs of the purchase which included stamp duty and adjustments of rates ($92), adjustment of insurance ($156), fee for s 109 Certificate ($77) and interest ($394). (The vendor allowed an adjustment for the registration fee on discharge of mortgage ($58).)

The Kingswood property was left vacant for about 3 months and then rented under a residential tenancy agreement dated 26 October 2001, for 26 weeks at a weekly rent of $210. The Plaintiff retained all of the rental income. It was subsequently rented until it was sold.

The Kingswood property was sold in December 2002 for $249,000. The mortgage debt of $153,907 was repaid to the Bank and the Plaintiff received $87,660, after adjustments, the payment of agent's commission, an amount to Penrith City Council, and other costs and expenses.

Other than in relation to the amount of $5,000 advanced to the Plaintiff by the Defendant, he does not specifically assert any direct financial contribution to this property. However, by living in the Fairway Drive property, the Kingswood property, until it was sold in December 2002, was available to rent, and was, in fact, rented from about October 2001. I view this as an indirect financial contribution by the Defendant.

The Defendant does not suggest that he otherwise made any direct financial contribution to the acquisition, conversation or improvement of this property, or that he was a party to the decision to purchase it. Neither does he claim to have made any non-financial contributions to the improvement of this property in applying labour. Nor does he assert a contribution made in the capacity of a homemaker.

I shall weigh his contribution to this property in determining what order is just and equitable.

In January 2003, the Plaintiff and the Defendant entered into a contract to purchase vacant land at Radcliffe Place Kellyville. There was a delayed settlement.

The purchase price disclosed on the Contract was $365,000. A holding deposit of $2,000 was paid out a joint account in the name of the parties, the Defendant paid $34,500 in January 2003 to the agents, the Plaintiff contributed $85,500 (the net proceeds of sale of the Kingswood property) and the parties borrowed $200,000. Costs included a valuation fee of $550. I accept that the Defendant paid the balance that was required.

In May 2003, the parties refinanced the loan by borrowing a total of $573,000, ($200,000 of which was to repay the original borrowing) and part of which was used to pay for a house to be built on the Radcliffe Place property. The contract price to build the house was $243,635. The loans were in the name of both of them. However, with variations, it cost $303,680. Part of the funds ($50,000) was also used to purchase furniture.

The Defendant contributed additional amounts totalling $109,635.

Once the loan had been obtained, the source of funds to make monthly repayments was income generated from the Defendant's business. However, the Plaintiff said, and I accept, that she was working in the business without remuneration.

The Plaintiff did not know the source of the payment for utilities and other outgoings on the Radcliffe Place property, whilst the parties lived there, but she believed it to be the Defendant's business. I accept that this was so.

During construction of the house, the Plaintiff chose most of the colours, materials, tiles, bricks, kitchen and bathroom accessories and the furniture. She liaised with the building contractor. She received some assistance from an interior designer. The parties, together, met with the painter and the designer of the office space in the home, it being anticipated that part of the Defendant's business would be conducted from here.

The Defendant organised the driveway, the rendering and the landscaping of the back yard.

The parties and Chelsey moved into this property in about May 2005.

The Plaintiff, for part of the time since she has been in sole occupation of the Radcliffe Place property has paid, until a short time ago, all of the maintenance costs and all outgoings thereon. The amount expended by her, between October 2007 and May 2011, is $182,649 (but as stated, she did receive "some $80,000" from boarders). I shall take it that her contribution to the mortgage and outgoings was, therefore, about $100,000.

The Defendant has not, since separation, occupied the property. From January 2006 until May 2007, he made all mortgage repayments, although the Plaintiff paid all utility expenses whilst she has remained in occupation.

Of course, the Plaintiff and the Defendant own this property equally. It will be necessary to balance these contributions in determining what order is just and equitable.

The Defendant started, or acquired, various businesses trading in spit roast products many years before the relationship of the parties commenced. The Plaintiff does not suggest that she made any direct financial contribution to the establishment, or acquisition, of any of the business, or that she was a party to any decision to establish, or acquire it.

For a few months before, and then, after, the Plaintiff and the Defendant commenced their de facto relationship, she worked in the Defendant's business and was paid for the work that she did. She started off mainly answering the telephones, recording consultations, making and confirming bookings, filing paperwork, and posting and collecting mail. Later, the nature of her work included answering questions from chefs and others, collecting money from chefs, doing some food preparation, packing and despatching, and delivering forgotten items or extra food to chefs at parties at various locations around Sydney. It developed further, into more of a managerial role.

The Plaintiff gave evidence about the work she performed in the business. I accept her evidence that it was in "all areas of the business". I am satisfied that she did do what she says she did, and that it was time consuming and onerous. I shall not repeat all that she says that she did but the Defendant's description of her in cross-examination is important. In addition, he did not dispute that he acknowledged that he was "lucky to have" her.

I do not accept the Defendant's evidence that she "was engaged in activities directly related to the New South Wales business for no greater than 10 hours per week". Nor do I accept his assertion that she "had no direct or indirect involvement in the Queensland business".

In a manual for new chefs and waitresses, which the Plaintiff helped to design, there is a reference to "Graham & Helen", as contacts if moneys are to be reimbursed. There is also a reference to the mobile telephone number of each of them as well as of the Defendant's brother, Garry. The Plaintiff is one of two persons to telephone if kits/uniforms or miscellaneous items for purchase are to be ordered. The parties, and Garry, are identified as persons to call in relation to jobs or the inability to work after a job has been allocated.

In my view, what she did amounted to a significant contribution to the businesses owned by the Defendant. The fact that it was done without a regular remuneration suggests that she viewed herself as "a partner", if not in the legal sense, certainly in a practical sense.

From about April or May 2001, until mid January 2006, the Plaintiff worked in the business without any wage or other emoluments (e.g. superannuation and holiday pay). Whilst for part of this time, the Defendant gave her some money, she states, and I accept, that she used most of it for the expenses of the business.

In stating the above, I am not suggesting that the Defendant did not work in the businesses. However, he has remained as the owner and in control of those businesses and retained all of the net income from them since the end of their relationship.

I note, however, that the balance sheet does not show any increase in the value of the businesses. However, this does not limit the Court in making an adjustment in respect of other property, particularly in circumstances where the level of the business is said to have improved whilst the Plaintiff was working in it.

The Plaintiff's involvement in the business, at least in Sydney, and the Defendant's view thereof is also demonstrated by the fact that he disclosed her as one of two proprietors (the other being himself) of a business known as "Sydney Spit Roast Catering" (in a Certificate of Registration of Business Name" issued in December 2004). (Finally, I should mention that the Defendant asserted that his brother-in-law, Les Duffy worked in the factory most weekends and that he was in charge of "some of the dispatch and cleaning". Mr Duffy was not called as a witness in the Defendant's case.)

The Queensland business ceased trading in June 2008.

Overall, I am satisfied that the Plaintiff made a modest financial and non-financial contribution to the conservation of the Defendant's business and, therefore, to his financial resources.

In April 2010, the Defendant and Deborah Prior (no relation) purchased this property. They contributed equally to the deposit and have borrowed the balance. The Plaintiff does not suggest that she made any direct, or indirect, financial, or other, contribution to the acquisition, or that she was a party to any decision to acquire it.

It follows that this property should not be the subject of any specific adjustment orders in favour of the Plaintiff.

There really is no dispute that all of the Plaintiff's and Chelsey's expenses, during the de facto relationship, were provided by the Defendant from the income generated from the businesses. Even assuming that some of the moneys taken from the joint bank account between September 2005 and January 2006, were used for the expenses of the business (the amount is impossible to ascertain), the Plaintiff did receive an additional $25,000 from the Plaintiff and to the extent that she withdrew funds after mid- January 2006, those funds were for her own benefit. The Defendant, at this time, was making the mortgage repayments on the Fairway Drive property.

I must bear the Defendant's financial contribution in this regard.

The parties did enter into the relationship with significantly unequal assets. With the exception of the Radcliffe Drive property, neither party acquired any property, of significant value, during the relationship; nor was there any joint ownership, or co-ownership, of property, of significant value.

In addition, the Plaintiff did not make any direct financial outlay, by way of contribution to the conservation and improvement of any of the Defendant's real property or to their domestic life, her case being that she made an indirect financial, and direct and indirect non-financial, contribution.

I have dealt with the work that she did in the Defendant's business. I conclude that she did perform very useful functions in relation to the Defendant's business, principally in NSW, and to a much lesser extent, in Queensland. The Plaintiff stated, and I accept, that the work she performed went beyond that of an employee and was, to a large extent, the product of her relationship with the Defendant.

Whilst I do not conclude that she was the sole figure in the management of the business, she did all that she was asked to do, and probably much more, in assisting the Defendant. Whilst she may have had to report to him, or carry out what he wanted to be done, being able to trust her, as he did, alleviated some of his burden within the business, as he himself appears to have acknowledged.

In stating the above, I should say that I do not find that she made any contribution to the Victorian or Western Australia branches of the business conducted by the Defendant.

In addition, her work contributed to the financial resources of the Defendant as he had, throughout the relationship, and thereafter, continued to receive income from the business. However, this aspect can only be taken so far.

In relation to homemaker contributions, it is necessary to remember what Barrett J wrote in Paino v Paino at [83] - [84]: "... Domestic or homemaker contribution, in the sense of committed pursuit of the domestic happiness of the other party and the couple, has an intangible quality that does not lend itself to measurement by reference to the relative ease or hardship of the surrounding circumstances. The nature of the kind of homemaker contribution referred to in s.20(1)(b) was described by Cole JA in Green v Robinson (1995) 36 NSWLR 96 at p.119: "The concept of 'homemaker' or 'making a home' has a different and wider connotation than housekeeping or maintaining a house. It involves the creation of an emotional ambience of stability." As Clarke JA observed in Black v Black (1991) 15 Fam LR 109 at p.117, a homemaker may perform domestic services "but her contribution to the family unit will usually be infinitely greater than that".

Neither party asserted any lack of stability in their domestic relationship during almost the whole of the period of their relationship, even though it was clear that the Plaintiff spent an amount of time working from home. Her contribution, in this regard, can be said to have indirectly contributed to the Defendant being able to carry out the work that he did. It also has a welfare aspect that must be evaluated.

But, as has been stated above, I must not only consider the Plaintiff's contributions. I must consider, however, what she has received in return and whether her contributions have been sufficiently recognised and compensated for.

For part of the period of their relationship, living in the Fairway Drive property, enabled the Plaintiff to rent the Kingswood property, or to not incur the expense of renting elsewhere. That was a contribution made to the property, or to the financial resources, of the Plaintiff. The rental income that was generated in respect of the Kingswood property was used by her to assist in the paying of her expenses, including the debt secured by the mortgage on that property.

The Defendant's direct financial contributions included meeting if not all, the vast majority, of the living costs. (However, the Plaintiff should not be considered as having made no indirect contribution, financially, since she did provide significant assistance to him in, particularly the NSW business for which she was not paid throughout almost the whole of their relationship.) In addition, he appears to have been reasonably generous in providing some lump sums to the Plaintiff, such as the amount of $5,000 which she used towards the purchase price of the Kingswood property, $3,000, which she used to pay out the lease on her car, the amount of $25,000, provided to her following the termination of their relationship, and $33,123 used by her between September 2005 and September 2006 (albeit that some part may have been used, during the relationship, for the operation of the business). He also made some direct financial contribution to an overseas trip for the Plaintiff and he purchased jewellery which the Plaintiff has retained.

I must also consider the contribution of the Defendant to the child of the Plaintiff. I remember what was said in In the Marriage of Robb [1994] FamCA 136; (1995) FLC 92-555 where Lindenmayer, Finn and Joske JJ (albeit in the context of the Family Law Act 1975): "In considering whether the justice of a case requires some act done by a party to be taken into account under s. 75(2)(o), the Court should, we think, have regard primarily to the existence or otherwise of any legal obligations, as between the parties, in relation to the doing of that act, and also, perhaps, to ordinary notions of justice and equity between the parties. In this case, the wife has a legal duty to maintain the children of her prior marriage, which duty had primacy over the duty of any other person, other than the children's father, to so maintain them: ss. 66A and 66B of the Act. The husband, on the other hand, had no legal duty to maintain these children at any time during the marriage because, by s. 66G, a step-parent has such a duty only if he or she is a guardian of the child, or has custody of the child by an order of a court, or a court having jurisdiction under Part VII of the Act by order determines that it is proper for the step-parent to have that duty. None of those precautions existed in this case. Accordingly, in contributing to the support of these children the wife was merely honouring a legal obligation which she owed to the children, whist the husband, in making his contribution, was acting essentially as a volunteer assisting the wife in the discharge of her legal obligations. Upon that basis, whist we consider the justice of the case clearly required the husband's contribution to be taken into account under s. 75(2)(o), the same cannot be said of the wife's contribution. In making that contribution the wife was in no way discharging or assisting to discharge any legal obligation of he husband."

In this respect there is no dispute about the assistance provided by the Defendant to the Plaintiff's daughter, Chelsey. I have dealt with this earlier.

Whilst he may not have done as much by way of cooking and cleaning, the Defendant did do some things around the house. In addition, he appears to have been content to pay to employ a cleaner, or cleaners, to assist with the housework, at least during part of the relationship.

I have found that the de facto relationship ended in January 2006. At that point, the Plaintiff's contributions to the business, and to the Defendant ceased. Thereafter, her contribution was to the mortgage repayments and the outgoings on the Radcliffe Drive property which I have estimated to be about $100,000 (after deducting the income from boarders that she received). As a co-owner, she would have been responsible for payment of half that amount. But, as I have stated, she remained in occupation of that property whilst she was making the mortgage repayments and paying the outgoings.

It cannot be forgotten, also, that for about 16 months, the Defendant, too, made mortgage repayments, without the benefit of occupying that property. The extent of his direct financial contribution during the relationship cannot be calculated precisely.

The length of the parties' relationship is a matter to consider in a variety of contexts, one of which must be what order adjusting interest in property is just and equitable. That several years have passed since it ended is also relevant on this issue.

As regards the other property that remains within the pool of property, the Defendant's contributions did not cease and have continued until the hearing. With the exception of the Radcliffe Drive property, the pool of property, as it existed at the date of termination of the relationship (being exclusively property of the Defendant), has continued to grow in value, through a combination of effort and natural economic forces. The effort, of course, since termination of the relationship,has been exclusively that of the Defendant.

To attempt an assessment of the respective contributions during the relationship made to the value of the Defendant's property at the date of the resumption of the hearing is virtually impossible, particularly where five and a half years have passed since the relationship ended.

Neither party invited me to carry out any kind of accounting exercise in evaluating the non-financial contributions made by the other and the benefits that flowed to the other as a result. The Act does not require the Court to carry out such an exercise, nor to make adjustments on account of what one did for the other. The parties' relationship was a mutually supportive one in which each made contributions to the mutual welfare of the family group.

The nature of the property of the parties, or of either of them, remains essentially the same as it was at the end of their relationship. The after acquired property was significantly, if not entirely, the product of the Defendant's contributions alone. The nature of the Plaintiff's property will change since, if the Radcliffe Place property is sold, she will no longer have a home in which to live. However, the net value of her interest in the Radcliffe Place property is more than the net value of her interest in the Kingswood property at the time of its purchase.

As I have stated previously, the Court's task is not to undertake a reductionist process, examining every alleged contribution as one might if one were taking partnership accounts, with a view to putting a money value on each in order to reach an accounting balance, which balance is then to be set off, one against the other, until financial adjustment is made by an order under s 20.

As a result, the Plaintiff has established that it is just and equitable for the Court to make an adjusting order in her favour. In order to acknowledge the contributions made by her, I consider that a modest adjustment to the property interests of the Defendant, in favour of the Plaintiff, is warranted.

Doing the best I can, and making an holistic value judgment, the Plaintiff should receive from the Defendant, a lump sum of $180,000, part of which amount she may use, if she wishes, to purchase his interest in the Radcliffe Drive property. The value of that interest is to be calculated by reference to the agreed value of the property at the date of the resumption of the hearing ($780,000), less the amount owing under the mortgage at the date of the settlement of the transaction (assuming each party has contributed equally to mortgage payments as I was informed they were at the date of the resumption of the hearing) (about $573,000) divided by two (taking into account their joint ownership). Based upon these figures, the value of his interest is $103,500. She will, in those circumstances, assume the debt secured by the mortgage.

As Bryson JA said in Chanter v Catts at [94]: "... The Master left the basis of the assessment of $95,000 unexplained; I am at a loss to see any other or better process for reaching a conclusion on that matter, and an attempt to reduce to arithmetic the assessment of the contribution made by the appellant staying at home and contributing to the family welfare to the respondent's superannuation resources by some detailed process or calculation could not improve on the simple one-step process of evaluation which the Master used. There are many stages in the course of disposing of civil proceedings where resort to judicial wisdom and experience for evaluating in money terms something which has no essential relation with money and commercial dealings is the only means available; such assessments must often be required in coming to decision under s 20."

I am unable to give any additional, or further, explanation of the reasons why the amount that I consider ought to be paid as a lump sum payment to reflect the Plaintiff's contributions under s 20 should be preferred to some other figure.

Within 14 days, or such other time as the parties agree, the Plaintiff, by her solicitors, should inform the Defendant, by his solicitors, if she wishes to purchase his interest in the Radcliffe Drive property, and of the date by which she will be able to complete the transaction.

The lump sum should, in any event, be paid to the Plaintiff, or as she directs in writing, within 28 days, failing which interest at Supreme Court rates should be paid from that date until the date of payment.

If the Plaintiff does not wish to purchase the Defendant's interest in the Radcliffe Drive, that property should be sold and the net proceeds of sale divided equally between them. If the parties are unable to co-operate in the sale of the property, or if they otherwise agree, trustees for sale should be appointed.

The Plaintiff should also retain the furniture in the Radcliffe Place property and the diamond ring. Otherwise, each party is declared the sole and beneficial owner of the property, existing superannuation entitlements, and personal effects, in her, or his, possession and each may retain such property and personal effects. Neither party has any further claim against the other for moneys alleged to be owed by one to the other, or otherwise in relation to matters arising out of the de facto relationship.

I direct the parties to prepare short minutes that reflect these reasons for judgment. I shall stand the proceedings over to enable them to give consideration to the terms and to consider whether the issue of costs can be resolved. If not, I shall then hear submissions on costs.

I stand the proceedings over to a mutually convenient time for the making of orders and any argument as to costs.