Edwards v Harris

HIS HONOUR: These are proceedings brought by Amanda Edwards ("the Plaintiff") against her former de facto partner, Charles Harris ("the Defendant"), seeking to adjust interests with respect to the property of the parties to the relationship or either of them under the Property (Relationships) Act 1984 ("the Act"). Despite the fact that the relationship ended over three and a half years ago, they are, and have been, unable to agree as to a property settlement. To make the fact of the proceedings even more unfortunate, there have been, and continue to be, proceedings in the Family Court, involving their only child, Annaleise Grace, who was born in December 2007, as well as other proceedings, all of which have involved the parties in great expense.

There is no dispute that the Plaintiff and the Defendant were parties to a de facto relationship which began in about 2006 (the precise commencement date is in issue) and which ended in about March 2008, 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. Annaleise Grace is the only child of their relationship.

Under s 86(1) of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) ("the amending Act"), de facto relationships that ended prior to 1 March 2009 are excluded from the relevant property provisions of the Family Law Act 1975 (Cth). Since the commencement of the amending Act, all de facto property disputes arising after its commencement are heard and determined in the Family Court or Federal Magistrates Court. An exception is provided in s 86A(1) of the amending Act, whereby parties to a former de facto relationship may "[opt] into the new regime". Pursuant to s 86A(2), in the event that the parties choose to 'opt in', their decision to do so is to be unconditional, and once made, their decision is irrevocable. Since the parties are agreed that the relationship ended well before 1 March 2009, and since they have not chosen the amendments to the Family Law Act to apply pursuant to s 86(2) of the amending Act, this Court is asked to exercise jurisdiction for the adjustment of property interests under the Act.

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 nature and 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, and the direct and indirect contributions made by each.

Each of the parties appeared unrepresented at the hearing.

By her Statement of Claim, filed on 22 March 2010, the Plaintiff seeks an order for adjustment of property, which would require the Defendant to pay to her $105,000, within 28 days of the making of orders, and a declaration that each party, otherwise, retain any property in her, or his, possession. Finally, an order for costs is sought. (Costs may be relevant, in the case of the Plaintiff, because she was legally represented during the proceedings, although not for several months before, or at, the hearing.)

The Defendant filed a Defence on 28 April 2010. In the Defence, he sought an order that the Plaintiff's Statement of Claim should be dismissed with costs. No Cross-Claim was filed.

The Plaintiff swore her first affidavit on 8 April 2011, which affidavit contained her evidence in chief. She swore another affidavit on 9 August 2011 and an affidavit in reply on 31 October 2011. (Her first affidavit was, ultimately, not read in the proceedings.)

The Defendant filed his first affidavit on 7 September 2011. That affidavit, in the main, contained the Defendant's evidence as to his contributions. He filed a further affidavit on the second day of the hearing. No other affidavits in respect of the substantive claim, were filed, or read, in the proceedings.

There were various directions hearings, a mediation, and an interlocutory skirmish, which I had to determine, involving whether an agreement to settle the proceedings had been reached between the parties. Neither party suggested that I should not hear the substantive proceedings because I had decided that aspect of the matter.

Even though each of the parties was self-represented, directions were made requiring submissions to be filed and served and these directions were complied with. At the directions hearing, I provided to each, a copy of my decision in Prior v Brown [2011] NSWSC 1006, which I had, then, recently delivered, suggesting that she, and he, might find it useful in preparing her, or his, case for hearing.

The hearing proceeded with the affidavit evidence being read, numerous objections being made, and each party being cross-examined by the other.

Each of the parties endeavoured to present her, and his, case, to the best of his, and her, ability. However, a matter listed for two days, extended to three days.

Following completion of the hearing (on 16 November 2011), my Associate, on 18 November 2011, received an email from the Defendant, to which email was attached copy documents said to evidence the Defendant's expenditure on legal costs. I instructed my Associate to inform the Defendant, by email, with a copy provided to the Plaintiff, by email, that I would not consider the documents, as neither a copy of the email, nor the documents, appeared to have been sent to the Plaintiff and her consent to the Court considering the documents did not appear, otherwise, to have been obtained. I have not looked at the email or the documents.

The Defendant sent to my Associate, following the previous email, and despite what had earlier been written to the Defendant, another email without including the Plaintiff as a recipient. I adopted the same approach as previously stated and have not looked at the second email sent by him. The Defendant was informed, by my Associate, with a copy sent to the Plaintiff, that if the Defendant thought it necessary, the matter should be re-listed on a date convenient to the parties and the Court for argument. No such application was made.

Generally (with some exceptions), it is improper for a party to communicate with a Judge's chambers without making that communication known to the other party. Furthermore, when the communication is by electronic transmission, and the email address of the other party (in this case, the Plaintiff) is known to the sender (the Defendant), there would appear to be no excuse for not including the other party as a recipient of the email at the time it is sent. The fact that a party appears unrepresented does not make such an approach any less improper or justify the conduct of litigation in that way.

Furthermore, the hearing is the time and place for the presentation of evidence and arguments. The observations by Mason J, as he then was, in Carr v Finance Corporation of Australia Ltd (No. 1) [1981] HCA 20; (1981) 147 CLR 246 at 257-258, apply: "I should express my dissatisfaction with the way in which the appellants' case has thus far been presented. I have already referred to the absence of any reference to s. 57(5) before the matter reached this Court. After argument had concluded in this Court lengthy written submissions dealing with issues not hitherto raised and a further affidavit were filed. The affidavit asserts that the mortgages were extended but no attempt is made to specify the extended expiry dates or the facts giving rise to the alleged extension. The material was submitted without leave having been given by the Court. The impression, unfortunately abroad, that parties may file supplementary written material after the conclusion of oral argument, without leave having been given beforehand, is quite misconceived. We have to say once again, firmly and clearly, that the hearing is the time and place to present argument, whether it be wholly oral or oral argument supplemented by written submissions."

A similar view has been expressed in the Court of Appeal in respect of the filing of supplementary material after hearing beyond terms of leave in Bale v Mills [2011] NSWCA 226; (2011) 282 ALR 336, at [57]. At [59], Allsop P, Giles JA and Tobias AJA noted: "Not only have the parties and their legal representatives no right (whether they agree among themselves to do it or not) to place before the court without prior leave further material after an appeal has been heard, it is wrong. It undermines and derogates from the principle of the open administration of justice. The practice is not legitimated by sending the material and in that material seeking leave. The proper course (unless prior leave, statute or court rule permits otherwise) is for the proceedings to be relisted so that an application to enlarge the record can be made and determined in open court: see Re application by the Chief Commissioner of Police (Vic) [2005] HCA 18; 79 ALJR 881 at 890 [54] per Kirby J."

These principles, which were stated in the context of an appeal, apply in cases at first instance as well and where the parties appear in person.

In the circumstances, I have not looked at, or considered, the documents forwarded to my Associate by the Defendant following the conclusion of the hearing.

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) of the Act, 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 separately 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 5(3) of the Act provides that a reference in the Act to "a child of the parties to a domestic relationship" includes a reference to a child born as a result of sexual relations between the parties.

Section 7 of the Act preserves the rights and entitlements of a de facto partner under any other statute or 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. (2) An application referred to in subsection (1) may be made whether or not any other application for any remedy or relief is or may be made under this Act or any other Act or any other law."

There is no claim for maintenance, or any other application for any remedy or relief, made in the present proceedings.

Section 15 of the Act provides two pre-requisites for the making of an order, namely, that both parties were resident within New South Wales for a substantial period of the de facto relationship, or substantial contributions of the kind referred to in s 20(1)(a) or (b) have been made in New South Wales by the applicant, and that one party was resident in New South Wales on the day on which the application was made.

Section 17 of the Act provides: "(1) Except as provided by subsection (2), a court shall not make an order under this Part unless it is satisfied that the parties to the application have lived together in a domestic relationship for a period of not less than 2 years. (2) A court may make an order under this Part where it is satisfied: (a) that there is a child of the parties to the application, or (b) that the applicant: (i) has made substantial contributions of the kind referred to in section 20 (1) (a) or (b) for which the applicant would otherwise not be adequately compensated if the order were not made, or (ii) has the care and control of a child of the respondent, and that the failure to make the order would result in serious injustice to the applicant."

Under s 17, the court "shall not make an order ... unless it is satisfied" of one, or other, of the prerequisites in s 17. The first, in s 17(1), is that the parties "have lived together in a domestic relationship for a period of not less than 2 years". A domestic relationship of less than two years duration falls outside the Act unless the adjustment of property can otherwise be brought within s 17 by satisfying one or other of the threshold requirements in s 17(2), namely that there is child of the parties to the application, or "substantial contributions for which the applicant would not be adequately compensated if the order were not made" or if the applicant has the care and control of the child of the respondent). In the latter of these alternatives, the additional test of "serious injustice" resulting to the applicant if an order were not made must also be satisfied.

I shall return to s 17 later in these reasons.

Section 18 of the Act relevantly 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. ..."

Section 19 of the Act provides that in proceedings for an adjustment or maintenance 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, or elaborate upon, "contribution", which word, therefore, bears its ordinary meaning. There is nothing to suggest that the concept of "contribution" should be narrowly confined. In the context of the Family Law Act , the word was described as having "a wide and generous, but uncertain, ambit, broadly referring to the effort or earnings and wealth accumulated during the marriage": Moore & Moore [2008] FamCA 32 at [304]. In Findlay v Besley [2003] VSC 247 Morris J stated, at [56]: "Further, the word "contributions" is a flexible one: it could even embrace negative contributions (for example, where property was diminished by a partner); and there is a need to have regard to benefits enjoyed by a domestic partner as a result of a contribution."

Section 20(1)(a) of the Act 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, the welfare of the family constituted by the parties and any of their child, or children. 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].

Section 20(1)(b) specifically contemplates that contributions that benefit, in whole, or in part, a child of the parties are also relevant to be taken into account in deciding what, if any, adjustment of property should be made. I have earlier referred to s 17(2), which permits the court to make an order for adjustment of property even if the domestic relationship has lasted less than two years, in circumstances where there is a child of the parties to the application. The existence of parenting orders in respect of a child of the parties is a matter that may be considered under s 20(1)(b) of the Act.

By using the word "including" in the first line of s 20(1)(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 (b), to be non-monetary: Sullman v Sullman at [249]. 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 at [33].

In relation to homemaker contributions, there are several passages in Giller v Procopets [2008] VSCA 236; (2008) 24 VR 1 which are apt in cases under the Act. Neave JA, with whom Maxwell P agreed, observed at [330] - [331]: "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. ... I respectfully adopt what the New South Wales Court of Appeal said in Kardos v Sarbutt about the approach which should be taken in evaluating the respective contributions of the parties: "... [T]the court is not required to take a reductionist process analogous to the taking of partnership accounts by examining every alleged 'contribution' of the kinds described in the section with a view to putting a monetary value on each in order to reach an accounting balance one way or the other, then to be eliminated by the requisite financial adjustment; rather, the court is required to make a holistic value judgment in the exercise of a discretionary power of a very general kind: Davey v Lee (1990) 13 Fam LR 688 (McLelland J). 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."

What is necessary is to evaluate the weight that should be given to each party's contributions relative to the contributions of the other party. In doing so, all of the contributions, before and after the commencement of the parties' relationship, until the time of the hearing, are evaluated and such weight to those contributions as the Court thinks appropriate in the circumstances is given: Manns v Kennedy [2007] NSWCA 217. It may be found that contributions of the kinds referred to in par (b) will involve shared activities or reciprocal benefits not giving rise to any disproportionate burden which it would be just and equitable to satisfy by an adjustment of interests in property: Evans v Marmont (1997) 42 NSWLR 70 per Gleeson CJ and McLelland, CJ in Eq, at 76. The statutory obligation to assess contributions is a difficult task to perform.

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). It is by having regard to those matters, in the context of the actual domestic relationship being examined, that a court may adjust property interests in a just and equitable manner: Schneider v Elleray [2010] VSCA 205 at [41]. Thus, adjustment of property on an application under the Act is not automatic: Green v Robinson , at 114, per Cole, JA; Howell v Fiorenza [2008] NSWSC 163 at [33].

However, it would be unrealistic to attempt to evaluate contributions of the kinds referred to in s 20 for the purpose of determining what is just and equitable having regard to those contributions, in isolation from the nature and incidents of the relationship as a whole: Evans v Marmont , per Gleeson CJ and McLelland, CJ in Eq, at 75.

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 , 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 (a "holistic value judgment"), is required by the Act: Burgess v Moss [2010] NSWCA 139; (2010) 43 Fam LR 260; [2010] DFC 95-423.

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'.'"

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 payment of a lump sum, and any other order which the Court thinks is necessary in order to do justice.

Section 56 of the Act 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] FamCA 434 at [4] per Cronin J (in relation to s 90RD of the Family Law Act , which is similar to s 56 of the Act.

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, during their relationship. The parties and their child still reside in this State.

On the Plaintiff's case, the duration of the relationship was about two years. On the Defendant's case, it was less than two years. However, if the Defendant's view is correct, there is a child of the relationship, which fact is relevant under s 17.

It is accepted by both parties that there is a "child of the relationship".

It is only if the relationship is of less than two years duration, that what follows is relevant to the case.

It was held in Sullman v Sullman by Campbell J (as his Honour then was) in relation to s 17 of the former Act (which is in the same terms as s 17 of the Act), that: "[235] S17(2)(a) permits the court to make an order where there has been a de facto relationship for a period of two years or less, and "there is a child of the parties to the application." I see no reason to read these words down, so as to require the child to have been born (or perhaps conceived) during the period of the de facto relationship. The ordinary meaning of the words in s17(2)(a) does not involve the meaning of "a child" being so confined. Nor can I see any reason arising from the policy of the Act why the meaning should be so confined. [236] I conclude that, notwithstanding that I am not satisfied that Mr and Mrs Sullman lived together in a de facto relationship for a period of not less than two years, the prerequisite for making an order contained in s17 has been satisfied, because s17(2)(a) is satisfied. As the tests in s17(2)(a) and s17(2)(b) are alternatives, there is no occasion for me to consider whether the test in s17(2)(b) has been satisfied."

A similar view was taken in Beltran v Hudspith [2011] NSWCA 178, in which Tobias JA, with whom McColl JA and Campbell JA agreed, said at [3]: "The parties to this appeal were in a de facto relationship from May to September 2005 and from June 2006 to July 2007, being an aggregate period of approximately 18 months. As a child was born to the parties in 2007, each was entitled to enliven the jurisdiction of the Court pursuant to s 17(2)(a) of the Property (Relationships) Act 1984 (the Act) notwithstanding that the relationship had not endured for the usual minimum period of two years: s 17(1)."

See also Kemp v French [2010] NSWSC 971 at [9].

There is no need for me to consider whether the test in s 17(2)(b) has been satisfied as the pre-requisites in s 17(2)(a) and s 17(2)(b) are alternatives,

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 to sufficiently recognise and compensate the parties' 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; Austin v Hornby [2011] NSWSC 1059; Prior v Brown .

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 in Beltran v Hudspith : "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). In this case, it is not necessary to do other than mention the alternative approaches.

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 . The purpose of the Act is not to assimilate the rights and obligations of the parties to a de facto relationship to those of the parties to a marriage, with respect to the distribution of assets upon the dissolution of the relationship.

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. However, the cost of the contributions to a party can be considered (but see, Powell v Supresencia at [83] 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; (2003) 87 SASR 248 at [13]. As stated, where the fault for the breakdown of the relationship may lie, is irrelevant.

In this case, there were no submissions about the time at which the property of the parties, or of either of them, should be valued and the adjustment, if any, determined.

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.

I make it clear that I do not intend what I have described, or shall, later, describe as "legal principles" or other "general principles", to be elevated into rules of law. Nor am I attempting "to formulate principles or guidelines designed to constrain judicial discretion within a predetermined framework" (a course discouraged by Brereton J in Sharpless v Mckibbin [2007] NSWSC 1498 at [60]). I identify them merely as providing useful assistance in considering the statutory provisions, the terms of which must remain firmly in mind.

As a result of injuries and disabilities the Defendant sustained in a motorcycle accident, he received compensation, in about November 2004, in an amount of $680,000 (after certain paybacks).

Whilst it may be relevant, in some situations, to have regard to the circumstances relating to that award, there is no general presumption that an award of damages should be left out of account in determining what adjustment order should be made: Williams & Williams [1985] HCA 52; (1995) 61 ALR 2. (Although the reference in that case was to s 79 of the Family Law Act , the principle also applies to proceedings for adjustment of property interests under the Act.)

In Re Q (Damages for sexual assault) (1994) 18 Fam LR 442, a claim under the Family Law Act, the property of the parties at the date of trial, consisted of the former matrimonial home belonging jointly to the parties, the proceeds of the husband's superannuation payout and the balance of moneys received by the husband for damages for personal injuries suffered by him.

In relation to the moneys received for damages, it was said by Kay J at [33] - [37]: "The damages award to the husband The husband's action was compromised on the basis that he received a lump sum plus ongoing periodic entitlement. Involved in the compromise was necessarily moneys for past and future economic loss as well as pain and suffering. No attempt was made before me to identify what portion of the lump sum so received could be attributed to either area. McGovern J in In the Marriage of O'Brien (1982) 8 Fam LR 691; [1983] FLC 91-316 said at Fam LR 699 ; FLC 78,147: I am mindful of the fact that a claim for damages for personal injuries is essentially a claim that is personal to the injured party and that the damages awarded are in the way of compensation for loss, usually assessed under the various heads, suffered by that person as the result of his injuries... the assessment of damages is directed to the loss of various descriptions suffered by the injured party himself. His is the cause of action, it is he who prosecutes the claim and, if successful, he is the person to whom the damages award are paid. ... It will be seen that at common law an action for damages and its outcome have little to do with anyone other than the parties to it. There is nothing to suggest other than that, by and large, an award made therein belongs to anyone but the plaintiff himself or that anyone other than himself has an interest in it. The criteria upon which damages are assessed are directed to the various areas of loss which he has suffered and the award is made with the object of compensating him, and him alone, for the same. It would seem to me, however, that these reflections may have little validity when it comes to considering the relevance of property in proceedings for settlement of property in the family law jurisdiction. In the present case the wife's interests are, as I see it, inextricably bound up with everything to do with the husband's accident and I do not think the fact that the damages were awarded with certain criteria relevant to that issue in mind has any particular bearing on the question of the property that must be brought into issue in the proceedings between the parties here. In that case, the husband's damages award was reduced by virtue of his contributory negligence. As to whether the wife's share should be reduced because of the husband's negligence his Honour said at Fam LR 700; FLC 78,147: To attempt a detailed analysis of what various portions of the property represented initially would seem to me a quite futile exercise. The only satisfactory way that I can see of assessing contributions in the circumstances is to consider the same in the perspective of the whole of the property, while keeping in mind at the same time the other very important factors to be considered. His Honour then considered the various financial and non-financial contributions the parties had made, and their financial positions and awarded the wife $20,000 out of the husband's $163,000 damages settlement. In Wagstaff v Wagstaff [1992] 1 FLR 333, Butler-Sloss LJ also treated the husband's award for damages as part of the asset pool of the parties and considered the contributions made by the wife to the award. At 337-8 her Ladyship said: ... the capital sum awarded is not sacrosanct, nor any part of it secured against the application of the other spouse. There may be instances where the sum awarded was small, and was specifically for pain and suffering, in which it would be unsuitable to order any of it to be paid to the other spouse. In some cases, the needs of the disabled spouse may absorb all the available capital, such as the requirement of residential accommodation ... In general, the reasons for the availability of the capital by way of damages must temper the extent of and in some instances may exclude the sharing of such capital with the other spouse. It is important to stress yet again that each case must be considered on its own facts. At 339, her Ladyship continued: Weighing all the relevant factors, taking into account the criteria set out in s 25, in my judgment the wife is entitled to some capital sum to redress the disparity between the husband and herself and to do justice between the parties. It is impossible, on the special facts of this case, to work out a sum by any sort of effective calculation. It has to be a matter of impression."

I referred to Re Q in Kemp v French at [72] - [74].

There is little doubt that the investment portfolio, albeit that it was obtained as a result of the award of damages for injuries and disabilities sustained by the Defendant, should be treated as property of the Defendant at the commencement of the relationship. Accordingly, I shall treat the damages award made to the Defendant, and the investment portfolio purchased with the proceeds as his property. I shall then consider the Plaintiff's contribution, if any, to that property.

In this case, the Plaintiff alleges, and the Defendant denies, that the Defendant committed acts of family violence. She asserted not only physical abuse, but also verbal abuse, as well as other means of denigrating and intimidating her.

She also asserted that his conduct towards her had a significant adverse impact upon her contributions, and that those were made the more burdensome by a pattern of family violence at the hands of the Defendant. Accordingly, evidence about such alleged acts is admissible. I shall deal with the evidence of each of the parties later in these reasons.

The Plaintiff has made no claim for compensation, including aggravated and punitive damages, through a common law action. Rather, she has submitted that the fact of the family violence is a relevant consideration in the exercise of the Court's discretion under s 20 of the Act.

The idea that one party's contributions might be characterised as more burdensome than they would otherwise have been, this translating into money terms in favour of that party in a claim for property adjustment, originated in the Family Court: In the Marriage of Waters and Jurek (1995) 20 Fam LR 190; (1995) FLC 92-635 at 82-378; In the Marriage of Doherty (1995) 20 Fam LR 137; (1996) FLC 92-652; Kennon v Kennon [1997] FamCA 27; (1997) FLC 92-757.

In the context of property relationships cases, I refer to Conn v Martusevicius (1991) 14 Fam LR 751; Green v Robinson ; Jackson v Jackson [1999] NSWSC 229; Jackson v Jackson [2000] NSWCA 303; Ledwos v Angilley [2001] NSWSC 618; Hughes v Egger [2005] NSWSC 18; BLM v RWS [2006] QSC 139; Giller v Procopets ; Valera Pty Ltd v Walker (No 2) [2010] NSWSC 1493; Austin v Hornby ; Morgan v Bell [2011] VSC 302.

It is necessary to set out general principles, which are applicable, that may be distilled from these authorities: (a) The term "family violence" is of uncertain meaning. What may be considered as family violence is conduct, whether actual or threatened, by one party, directed towards, or towards the property of, the other, or of the other's family, which causes that, or any other member of the other's family, reasonably to fear for, or reasonably to be apprehensive about, his, or her, personal wellbeing or safety: s 4 Family Law Act . The conduct may be physical, emotional, financial, sexual, or psychological. It may consist of a single act, or isolated acts, or may be a course of conduct, the cumulative effect of which causes the requisite harm: P Nygh, "Family Violence and Matrimonial Property Settlement" (1999) 13 Australian Journal of Family Law 10, at 11. It does not, necessarily, have to constitute a criminal offence, although it may do so. (b) It is necessary to provide evidence to establish the incidence of family violence and its effect, as well as evidence to enable the court to quantify the effect of that violence upon the party's capacity to "contribute". Yet, the failure to state its effect expressly is not necessarily fatal to the case being advanced; there may be cases where it is obvious, or a very likely inference from the facts, that certain kinds of violence must have adversely affected a person's contributions. (c) When allegations of family violence are made, there is no special requirement of corroboration, and no special rules about the need for complaints to authorities. As in all civil cases, the allegations need to be proved on the balance of probabilities, taking into consideration, the nature of the cause of action, the nature of the subject matter of the proceeding, and the gravity of the matters alleged (s 140 Evidence Act 1995). (d) Where there is a course of such conduct by one party directed towards the other during, or after, the relationship, and it can be established that the conduct had an adverse impact on the other party's contribution to the relationship, or to the care of a child of the relationship, it is a factor that can be taken into account in assessing the parties' respective contributions to the relationship as the contribution of the party subject to the conduct may have been more onerous due to that conduct, and hence may attract additional weight. Thus, the emphasis is on the effect, rather than the actual existence, of family violence. (e) The conduct may also be considered "when making an assessment of the extent to which, overall, he (or she) contributed to the defendant's (or plaintiff's) welfare" and the "conduct could be assessed when considering the nature and incidents of the relationship as a whole as providing the context within which a judgment is to be made of what adjustment of property interests is just and equitable having regard to the parties' contributions within s 20(1)(a) and (b)". Such consideration "should not be seen as a matter of penalising the [alleged abuser] for [his or her] denigration of the [alleged abused party] but more an assessment of the quality of the [latter's] contribution". (f) The Act is not intended to punish a de facto partner for reprehensible conduct. The quantification of the effect of that conduct is often difficult to calculate mathematically. However, some adverse impact caused by the family violence must be established. What are important are the consequences, in terms of increased contribution, rather than the conduct that caused it.

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 [2011] NSWCA 212 at [54], referring to Chanter v Catts at [62] - [65].

I find the following facts not to be in issue, or proved to my satisfaction on the evidence: (a) The Plaintiff was born in June 1979 and is aged 32 years. (b) The Defendant was born in October 1977 and is aged 34 years. (c) The child of the relationship, Annaleise, is now four years of age. (The Defendant pays child support for her, although there is dispute about the regularity of his payments.) (d) The Defendant was injured in a motorcycle accident in April 2001, in which he sustained a closed head injury of minor severity and subluxation of his right shoulder, a right brachial plexus injury, a fracture of his right radius and ulna, a fracture of his right little finger, and fractures of the L4 and L5 vertebrae. The forearm fractures were plated and his other injuries were treated conservatively. (e) The Plaintiff came to Sydney, from Queensland, in late November or early December 2005. She had, earlier in the year, ceased permanent employment with a Queensland company, for which she had been working for several months, against which she commenced proceedings for sexual discrimination. She received a payment of $8,000 by way of compensation, in about October 2006 (whilst living with the Defendant). After leaving that employment, she had worked in various jobs. (f) Neither party had previously been married, although the Plaintiff had been in a prior domestic relationship in Queensland. Neither party had a child at the time of them meeting. (g) The parties met on an Internet dating site in January 2006, and for the first month or so communicated on the site and by telephone. They met face to face in early March 2006, and in April 2006, the Plaintiff would stay with the Defendant, at his rented town house (which he shared with his brother, John) between Thursday and Monday afternoons. The date that she moved in, on a full time basis, is the subject of dispute, the Plaintiff asserting that it was on 31 May 2006 and the Defendant asserting that it was in July 2006. (h) Coincidentally, the Plaintiff commenced working in Sydney on the very day she met the deceased for the first time face to face (6 March 2006). She remained employed in that job until about September 2007. Since then, she has not worked outside the home. (i) Following her move to Sydney, the Plaintiff lived with her parents. At that time, she had clothing and some basic personal items. The furniture that she had was stored in Queensland. (j) The Plaintiff was employed as a sales engineer, earning a gross annual salary of $65,000, together with employment tools of trade being a fully maintained company car, a fuel card, an entertainment allowance, a laptop and a mobile telephone. Shortly after commencing employment, she received, from her employer, an amount of $3,759 that was added to the amount that she then had ($1,211) in one of her bank accounts. (k) Initially, when she moved in with the Defendant and his brother, she brought with her, clothing, a fan, and some towels and linen. Later, she says that she brought, from Queensland, a treadmill and a computer and some other items that she collected from Queensland. (l) The Defendant, at the time they met, earned variable amounts of weekly income as a gardener. He estimates that he earned about $350 per week. In addition, he received a monthly income payment of $1,300, from the share portfolio investment that he owned, and which he had purchased with his award of damages. (m) At some time in 2006, (the Plaintiff says May and the Defendant says July), the Plaintiff moved in to premises in which the Defendant and his brother lived. She contributed $100 per week by way of rent, which she said was to the Defendant. The Defendant and his brother each contributed $120 per week. In addition, the Plaintiff paid for her Internet connection to the property. (n) In September 2006, the Defendant sought advice from a solicitor about the parties entering into what was described as a "pre-nuptial agreement". The Plaintiff refused to sign it and asserted, in the witness box, that the Defendant would not allow her the opportunity to obtain legal advice. (The reasons why she did not sign it probably do not matter since there is no dispute that the Plaintiff did not sign the document.) (o) The Plaintiff moved out of the premises that she shared with the Defendant and his brother on about 15 March 2007. She returned to live in the home of her parents. (p) The parties each believed that the relationship had come to an end in March 2007. It is clear, however, that they continued to see each other and continued to have sexual relations. For reasons to which I shall come, the relationship recommenced, when they moved in together again in late July 2007. (q) When she moved out in March 2007, the Plaintiff had the amount of $21,725 in her bank account. She agreed that $8,000 of this amount was the compensation she had received, and most of the balance was what she had been able to save whilst she lived with the Defendant. By July 2007, she had increased her savings to about $29,182. (r) The Plaintiff found out she was pregnant in April 2007. Each of the parties appeared to be happy with the news and they agreed, for the benefit of the unborn child, that they should "try again" to resurrect their relationship. (s) On 16 July 2007, the parties made an application for a tenancy of a three bedroom unfurnished townhouse at Bella Vista. They were successful and the lease was entered into on 25 July 2007. It was for a term of six months, ending on 24 January 2008, at a fortnightly rent of $920. (I am satisfied that they moved into the townhouse a few days after the lease was signed.) (t) At the time they moved to the Bella Vista property, the Plaintiff had $29,182 in two bank accounts. (u) In May 2007, the value of the Defendant's share portfolio was $635,256. By October 2007, its value appears to have dropped to $564,704. (v) The Plaintiff and the Defendant lived together at the Bella Vista townhouse until about 23 March 2008, when the Plaintiff moved out. The Defendant moved out of the Bella Vista property on about 14 April 2008. The keys to the Bella Vista property were formally returned on 17 April 2008. (w) In February 2008, the Defendant discussed with his financial planner various matters. In a letter dated 8 February 2008, to the Defendant, the financial planner confirmed that the Defendant had stated that the Plaintiff was not working, that the Defendant was then earning around $400 per week and that the rent for the Bella Vista property was $460 per week. The financial planner provided alternatives, to meet what were described as difficulties making ends meet. One alternative was to think about buying a property in which to live using part of the investment proceeds; another was to look at the budget and commence receiving a monthly payment from the investment proceeds. (x) The Plaintiff continued to work until about September 2007. She did not earn any income from then until early 2008, when she received various family benefits including a one-off tax benefit of $223 and the baby bonus ($4,675). She received other modest benefits in about February 2008 also. (y) Accordingly, on the Plaintiff's case, the relationship existed between April 2006 and March 2008 (about two years) and on the Defendant's case, it was between July 2006 and about March 2008 (about 20 months). Each agrees that between March 2007 and about the end of July 2007, they did not live together. (z) In September 2007, the Plaintiff began seeing a lifeline counsellor. (aa) After she left the Bella Vista property, the Plaintiff moved to rented accommodation in Northmead. She was required to pay a bond ($1,360) and she paid six months rent in advance (a total amount of $8,660). She paid these amounts from her bank account in which there was $18,250 as at March 2008. This reduced her savings to $8,230. (It follows that during the period between about the end of July 2007 and when she left the Bella Vista property in March 2008, the Plaintiff spent about $10,932 of her savings.) (ab) Following the termination of the relationship, possibly since August 2011, there has been in place an interim parenting order, the effect of which is that their child lives with the Plaintiff on a full time basis, and the Defendant has supervised contact twice a week. There is an order for variation of contact sought by the Defendant, which application was to be heard on 28 November 2011. There are competing applications for final parenting orders to be heard, for five days, commencing on 20 February 2012. (ac) There was no evidence of any promises, or expectations, of marriage, although both parties hoped, for the sake of their child, that the relationship would succeed. (ad) Other than one issue that I shall deal with in determining issues of credit, this is not a case where either party applied her, or his, respective income during the relationship, for any purpose other than for her, his, or their, benefit and, after she was born, for the benefit of their child. (ae) At the date of hearing, the Plaintiff is receiving a Centrelink pension of $647, and Australian Government Families' Assistance of $350, each fortnight. In addition, she is entitled to receive $365 per month, by way of child support, from the Defendant.

At the commencement, and then, again, at the conclusion, of the hearing, I went through, with the parties, the property of each of them at different times. The response of each leads me to set out the following as agreed facts:

At the commencement of the relationship, the Plaintiff had the following property, income and liabilities: (a) Cash in bank or held by her personally - $4,880 in bank and about $3,000 held in cash, part of which were proceeds of sale of her car ($2,500); (b) Superannuation ($9,149); (c) Furniture (value the subject of dispute), but which was, for the most part, stored in Queensland.

At the commencement of the relationship, the Defendant had the following property: (a) A share portfolio investment with a value of $630,000 (this was purchased with the Defendant's compensation proceeds after his accident); (b) A motorcycle (negligible value); (c) A car (with a value of between $28,000 and $31,000); (d) A work utility van ($1,500); (e) Household furniture ($3,000). (In relation to the value of the Defendant's motorcycle, although the Plaintiff asserted that it had a value of $7,000 (in her submissions), in her verified Statement of Claim, she had stated that it was of nominal value. As this accords with the Defendant's estimate of value at the commencement of the relationship, I have treated it as having negligible value at the commencement of the relationship.)

It can be seen that there was a substantial disparity between their respective financial positions at the commencement of the relationship.

At the termination of the relationship, the Plaintiff had the following property: (a) Cash in bank ($18,250); (b) Household furniture (with a value of between $2,500 and $4,000); (c) A car ($4,000); (d) Superannuation ($9,159).

At the date of termination of the relationship, the Defendant had the following property: (a) A share portfolio investment ($530,000); (b) A four wheel drive motor vehicle (with a value of between $8,000 and $10,000); (c) A car (with a value of between $15,000 and $25,000); (d) A work utility van ($1,500); (e) A boat (with a value of between $20,000 and $27,000); (f) Household furniture ($4,500).

At the date of the hearing, the Plaintiff had the following property: (a) Cash in bank - The amount fluctuates depending on receipt of pension benefits and child support payments; as at 14 November 2011, the closing balance was $163; (b) Household furniture (with a value of about $4,000); (c) A car ($3,000); (d) Superannuation ($9,159).

At the date of the hearing, the Defendant had the following property: (a) A share portfolio investment ($12,003); (b) Cash in bank ($68) (there might be more than this but certainly no more than a few hundred dollars); (c) A car (with a value of between $12,000 and $19,000); (d) Household furniture ($4,000).

The Defendant asserts that he sold the four-wheel drive in December 2010 for $2,500 and the boat in April 2011 for $7,000. The work utility van had been "written off" in an accident.

Because there was some dispute, I shall deal with another aspect of the property of the parties or either of them at the date of the hearing. I must do so remembering what was said by Williams JA in Hardman v Hobman [2003] QCA 467: "[3] Parties to a de facto relationship (indeed as with parties to a lawful marriage) usually do not conduct their financial affairs on the basis that one day, following a parting of the ways, each would be in a position to give accurate evidence as to the financial contribution made by each to the relationship, in particular to the acquisition of property, and as to the value of that contribution when the relationship ended. For that reason courts called upon to adjudicate on issues such as raised by this appeal will, of necessity, have to adopt a broad brush approach. The trial judge cannot ignore positive evidence in order to achieve what is perceived to be a just outcome, but more often than not the sparsity of evidence will call for the application of what has often been referred to as 'palm tree justice'. Even then there are constraints on what a court can do. [4] In cases of this kind the burden of proof is often of critical importance. The party seeking relief must place evidence before the court establishing entitlement to that relief. The absence of evidence does not mean that the judge has a free hand to order the transfer of property in a way which objectively may be seen to be just."

The Plaintiff submitted that the Defendant "has sought to dispose of assets since separation and in an attempt to abuse the court process". She also asserted that he has paid moneys to his solicitors (representing him in other proceedings) that are held in trust for him. (There was simply no evidence to support the latter statement.)

It can be seen, that between the date of separation, and the date of hearing, the property of the Defendant has been significantly reduced. This matter was the subject of lengthy cross-examination of the Defendant.

In his affidavit sworn in September 2011, but filed at the hearing, the Defendant stated that since separation, he has lost or spent, virtually all of his compensation moneys that he had left at the date of separation. He also says he has had to borrow $10,000 to assist in paying legal fees. (There was no dispute that a payment of $10,000 had been made by the mother of the Defendant. However, he had not asserted that amount as a debt to her, although it may be one.)

During the course of the cross-examination and during submissions, the Plaintiff appeared to accept that: (a) Between the date of separation and the date of hearing, the Defendant had paid, in respect of the various legal proceedings in which he has been involved with the Plaintiff, at least $169,892 in legal costs and disbursements. Various tax invoices produced by the Defendant, and inspected by the Plaintiff, led to the parties' agreement upon the amount paid. (The Defendant asserted that he had paid about $230,000 in total but had been unable to produce all of the tax invoices.) (b) In the proceedings in respect of which the Defendant had paid legal costs, for the most part, the Plaintiff had received legal aid. (c) The Defendant had paid no less than about $28,200 for child support and other costs and expenses associated with their child. (d) The Defendant had spent about $17,000 in instalments for the boat, which he had sold. (e) The Defendant's living expenses for the three and a half years since the relationship had ended were no less than about $30,000 per year. The total estimated living expenses, therefore, amounted to about $105,000. (f) The global financial crisis had affected the value of the shares held by the Defendant in the investment portfolio. The Plaintiff accepted that the total loss in the value of the shares was about $190,000, of which $133,000 was attributable to the period following separation. (g) The current value of the Defendant's portfolio investment was $12,003. (h) Taking into account the amounts referred to, the Plaintiff asserted that the amount not accounted for by the Defendant to the satisfaction of the Plaintiff was $64,905. (Of course, if I accept the Defendant's evidence that he paid about $230,000 (and not about $170,000) for legal expenses, it is no longer unaccounted for.) (i) There was no direct evidence satisfying the Plaintiff as to where the amount not accounted for was. (She submitted that she "feels that [the Defendant] concealed that money, and I believe that it would be reasonable for the Court to believe that that money was concealed".) (j) In cross-examination, the Defendant also identified the costs of holidays with his current partner as an expense towards which part of the unaccounted funds were paid. This is neither surprising nor unreasonable.

I am satisfied, therefore, that this is not a case where there has been financial misconduct, or financial misbehaviour, on the part of the Defendant. Nor is it a case in which the Defendant is trying to hide, or has dissipated, assets so that the Plaintiff cannot seek an adjustment order out of them.

Nor is this a case where the Court is not satisfied that it knows the extent of the property of the parties, or either of them, and can, for that reason, be less cautious than might otherwise be the position when making an order. To the contrary, I am satisfied that this is a case where the property of the parties, or either of them, at the date of hearing, is of extremely limited value. That they are going to expend what little they have on further litigation in another jurisdiction can only be regarded as a greater tragedy.

I have also referred to the expenditure since separation because of the Plaintiff's submission regarding moneys that she said should be "added back" to the property pool. Again, it is necessary to look at cases decided under the Family Law Act .

In Marker and Marker [1998] FamCA 42, it was said: "2.11 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."

In Challen & Challen [2007] FamCA 1292, Murphy J considered various authorities concerning the principles that govern "add backs" to the pool of assets: "Add Backs - Principles The decision whether to add back to the pool of assets property disposed of or money spent occurs against a legal framework where the general principle is that the court takes the property of the parties or either of them as it finds it at date of trial. Financial losses incurred by the parties or either of them during the course of the marriage should be shared by them, although not necessarily equally. Adding back to the pool is the exception, not the rule. An exception can exist where one party has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets; or where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the effect of which has reduced or minimised their value or the pool of assets. However, the Full Court has rejected the notion that add backs only arise where "waste" can be established. The issue of "add backs" is but part of the overall s 79 exercise, and is, accordingly, governed by principles of justice and equity. Specifically, the matters referred to by Baker J in In the Marriage of Kowaliw have been held not to constitute any form of fixed code and are no more than a guideline for use in the exercise of the s 79 discretion. The Full Court in Omacini and Omacini noted that circumstances in which it is appropriate to notionally add back to the pool of assets fall into "three clear categories": where the parties have expended money on legal fees; where there has been a premature distribution of matrimonial assets; and in the circumstances outlined in Kowaliw referred to above. Furthermore, that Court rejected the notion that "the mere fact that a party has expended money realised from the disposition of assets that existed as at the date of separation, will result in that expenditure being added back..." as being unduly simplistic. What is crucial, is an assessment of the reasonableness or otherwise of the expenditure ..."

His Honour noted that in the immediate aftermath of a marital separation, the arrangements that might be described as parties "properly getting on with their lives" are, in many cases, "attended with significant emotional difficulty for each of them and, frequently, are in a state of flux" and that "what is "reasonable" in that situation may ... differ from what is reasonable when, for example, some years separate the parties (sic) physical separation and a trial".

More recently, in Essex v Essex [2009] FamCAFC 236, the Full Court of the Family Court said at [30]: "Questions of how a trial Judge should deal with so-called "add backs", and/or premature distribution of assets, regularly arise in cases under s 79 and are often the subject of grounds of appeal. Often the amounts are minor when compared to the overall property in issue and the time taken and costs involved to agitate the claims both at first instance and on appeal, lack proportionality. Trial Judges are correct to deal with such claims robustly in the broad exercise of their discretion under s 79. The principles about when an expense should be "added back" have been comprehensively discussed in Full Court decisions particularly Chorn & Hopkins [2004] FamCA 633; (2004) FLC 93-204, Omacini & Omacini [2005] FamCA 195; (2005) FLC 93-218 and Gollings & Scott [2007] FamCA 397; (2007) FLC 93-319. The principle that where one party has unilaterally assumed control of, and has improperly disposed of, or diminished the value of, an asset to the detriment of the other party, that the disposal should be regarded as a premature distribution to the party at fault is not in doubt (see Townsend & Townsend [1994] FamCA 144; (1995) FLC 92-569). What is often controversial is when the principle is applicable." Although each of these passages was stated in the context of the Family Law Act , in my view, the principle expressed may be apt in some cases under the Act.

I am supported in coming to this view by the similar view expressed by Applegarth J in TJ v SB [2010] QSC 403 at [49]. His Honour said: "In Challen and Challen Murphy J considered a number of authorities concerning the principles that govern "add backs" to the pool of assets. I again respectfully adopt his Honour's helpful summary of relevant principles. The parties accepted the correctness of this statement of principle. As Murphy J observes, the decision of whether to add back to the pool of assets property disposed of, or money spent, occurs against a legal framework where the general principle is that the court takes the property of the parties or either of them as it finds it at the date of trial. Adding back to the pool is the exception, not the rule. An exception can exist "where one party has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets; or where one of the parties has acted recklessly, negligently or wantonly with the property of the relationship, the effect of which has reduced or minimised their value or the pool of assets". The exercise of adding back in an appropriate case is but part of the overall exercise of adjusting property interests, which is governed by principles of justice and equity. The fact that a party has expended money realised from the disposition of assets that existed as at the date of separation will not necessarily result in the expenditure being added back. What is crucial is an assessment of the reasonableness or otherwise of the expenditure."

That a large part of the amount held by the Defendant was spent on legal fees may be relevant. However, on this aspect, I also remember that the Plaintiff had the benefit of being legally aided in some of the litigation, whereas the Defendant has not had that benefit. That he has had to use his own money to pay for legal representation, it seems to me, is reasonable in all the circumstances and does not evidence economic recklessness, financial misconduct, or financial misbehaviour, which has resulted in reducing the value of assets available for distribution. The law does not require that funds held at separation must be preserved pending a final property settlement: Gilbert & Gilbert [2011] FMCAfam 1018 at [29].

Whilst the expenditure of a significant amount of money other than on legal costs since separation is troubling, I am not persuaded that justice and equity requires it to be added back to the property pool.

Another way of considering the Plaintiff's submissions on this topic is by reference to the time at which the property of the parties, or either of them, should be valued and the adjustment, if any, determined. There do not appear to be any reasons that militate against the identification and valuation of the property of the parties, or either of them, at the date of the hearing.

In this case, there were disputes about most of the assertions, as to contributions and otherwise. The Court was not greatly assisted by the cross-examination of each of the parties by the other, which cross-examination often descended into argument and submission rather than the asking of questions. I do not say this critically, as neither party was represented and the emotion of each was high.

Furthermore, in these cases, experience dictates that each party will have a subjective perception of what happened during the relationship, which, to them, is the truth. As Cronin J said, in Smyth v Pappas, at [14]: "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.

Also, in a trusting personal relationship, most parties do not hold each other to account financially. Usually, neither keeps records, with the result that in cases seeking an adjustment of property, which are usually heard some years after the relationship has broken down, a practical difficulty of taking any such account occurs.

Sometimes, the available objective evidence, when compared with the subjective version, proves that the evidence of one, or both of the parties, is flawed. There was very little available objective evidence to assist me in the present case.

I was presented with two versions of affidavit evidence, each different, neither of which, on some aspects, was adequately tested. I point this out because it makes the task of determining credibility harder.

Bearing these things in mind, and also remembering that some of the events occurred over five years ago, overall I did not find either party to be an entirely satisfactory witness. Also, because no other witnesses gave evidence, in regard to some issues, it is one party's word against the word of the other. On some issues, it is impossible to determine who was telling the truth.

In relation to the Plaintiff, I found that she gave her evidence confidently, although, on occasions, the confidence proved to be entirely misplaced. For example, she had asserted that the Defendant had hidden amounts of cash (about $256,000), or property, although, when tested, the basis of her assertion was impossible to ascertain.

There was simply no evidence to substantiate this serious allegation that she had made against him. She did not identify to the Defendant any property of which he was the beneficial, but not the legal, owner. When she questioned him about money allegedly given to his family, he explained the transactions in what appeared to be a rational and truthful manner. For example, he was asked about his yearly contribution to a time-share interest in a property in Queensland. He explained that he and his siblings were assisting his parents who had had the time-share interest for many years and which property was, and had been, used by the family members.

The largest regular outgoing for the parties, during their relationship, was in respect of rent. In regard to the payments of rent, I do not accept the Plaintiff's assertion, by way of particulars of financial contribution made in the Statement of Claim, that apart from a total of 10 weeks when they shared the rent equally, she paid the whole of the rent of $460 per week for the Bella Vista property. Not only does this not accord with her oral evidence, it does not accord with the bank statements tendered by the Defendant, which show his contributions to rent throughout the period that the parties lived in that property.

I accept the Plaintiff's evidence that she paid $150 per week towards the rent of the Bella Vista premises until she ceased work in September 2007 and that until about 15 December 2007, she made some contributions to the rent payments. However, throughout the whole of the period, the Defendant was required to pay the balance of the weekly rental, or $310. For example, the Defendant's banking records reveal payments of $620 towards rent on 7 September 2007, 20 October 2007, 2 November 2007, 16 November 2007, and then $920, on 7 December 2007, and again on 15 December 2007, 28 December 2007, 21 January 2008, 22 January 2008, 5 February 2008, and $800 on 22 February 2008 and 14 March 2008, and $920 on 31 March 2008.

The Plaintiff's bank records reveal that she paid $300 on 7 September 2007, $450 on 20 September 2007, $300 on 17 October 2007 and on 2 November 2007, $200 on 6 November 2007, and $150 on 17 November 2007. The Plaintiff's records also reveal that she paid about $66 on 5 February 2008 and $240 on 3 March 2008.

I have earlier dealt with the acceptance, by the Plaintiff, of expenditure since separation. The amount of expenditure, ultimately, said not to have been satisfactorily explained, amounted to about $65,000.

Another very good example of the Plaintiff's misplaced confidence related to her assertion that the Defendant, during their relationship, had spent a lot of time, and money, on a particular dating site. The suggestion was that this expenditure of money, and by inference, time, would be disclosed by an investigation of his banking records which would reveal the payments made to that site.

Yet, when she cross-examined the Defendant and asked him to identify, from the banking records he had produced (and which had been tendered), as well as his banking records produced on subpoena from a third party (which she had inspected and again inspected in Court whilst cross-examining), there was only one transaction relating to that, or any, dating site, and that transaction occurred when the parties were separated (in June 2007).

I am satisfied, also, that during the period from about September 2007 (when the Plaintiff ceased working) to when they separated in March 2008, the Defendant is likely to have paid at least some of the other outgoings as the Plaintiff was earning no income. She may have used some of her savings during this period, but I do not accept that she paid all, or even, most, of the parties' living expenses.

Nor do I accept her assertions, by way of particulars of financial contributions made in the Statement of Claim, that she paid "all" household bills, including water, electricity and telephone bills, when she lived with the Defendant and his brother, and then whilst she and the Defendant lived in the Bella Vista premises. The bank records of the Defendant reveal a contrary state of affairs.

In her oral evidence, the Plaintiff stated that during the period that she lived with the Defendant and his brother: "I paid my own internet bill. I contributed towards an electricity bill. It was on one occasion I contributed because there was only one bill from the time that I come and then you got another one in March when I had moved out and I believe that I may have assisted in other bills."

In her oral evidence, she accepted that she did not pay "all" of the bills whilst she and the Defendant lived together. This was a justified concession and an acknowledgement that the assertion in her pleading was not correct.

The bank records establishing the payment of part of "other bills" produced revealed that she made payments for groceries, some household expenses, and for baby products, and Internet connection fees.

During submissions, she accepted that for household bills, the financial contributions were, overall, equal.

The Plaintiff also asserted as a particular of her financial contribution, that she "paid for holidays and entertainment of the parties". In her oral evidence, she accepted that, shortly before their separation, they went to Fraser Island with members of her family, and that the Defendant had made a few payments of expenses whilst they were there.

Bank records of each of the parties show that she, and he, made some payments whilst on holidays.

There can be no doubt that the Plaintiff paid some of the expenses of the parties. She cross-examined the Defendant on various amounts shown in her bank statements, which he admitted were payments made for holidays and the like. However, one can see from the amounts that were suggested to him, that her contributions were unlikely to have been all of their expenditure for such things.

I have borne in mind that for the whole of the first period of their relationship and for part of the second period, the Plaintiff's income was greater than that of the Defendant. However, I accept the Defendant's evidence that on occasions, he would transfer capital from his investment portfolio to meet expenses. He was cross-examined on the fact that at one point in their relationship, he had withdrawn $45,000 (said to have been for the payment of a deposit on a home), which was otherwise spent.

Because it was raised as a specific contribution, I should say that I do not accept the Plaintiff's evidence that she contributed $1,000 towards the purchase price of the four-wheel drive that the Defendant purchased in about October 2006. As the Defendant put to her, there was no need for her to do so. He had more than was required to pay for the vehicle. In addition, I found her evidence on this topic unconvincing.

However, there is no dispute that the Plaintiff advised the Defendant to offer $2,000 or $3,000 less than he was prepared to pay, with the result that he was able to purchase the vehicle for $11,000. This was an indirect contribution that I shall bear in mind.

The Plaintiff maintained in her affidavit, and in her oral evidence, that the Defendant would often call her derogatory names and that, on at least one occasion, in February 2007, he was physically abusive towards her, punching her in the arm with a closed fist and then kicking her leg, causing her to fall backwards into a mirrored cupboard.

She says that she called the Police who attended, but because of fear of the Defendant and his brother, she did not tell them what occurred. The Defendant admitted an incident occurred and that the Plaintiff had called the Police. However, he denied that he had kicked her, or that he had been physically abusive, on this occasion.

It was accepted by the Plaintiff that there was no corroboration of her version of the events. This led to the submission that I should draw an inference that the events, as she described them, had occurred because the Police had been called. Whilst I accept that the fact the Police were called was not disputed, it does not follow that the events, as described by the Plaintiff, occurred. I also note that the Plaintiff participated in having the Police take no action.

I have also considered the failure of the Defendant to call his brother, John, who was present at the time of the alleged incident. (The Defendant explained that his brother was working and that it was impossible for him to attend.)

The Plaintiff repeated in her affidavit evidence and in the witness box that it was because of family violence that she had left the Defendant in March 2007. She did not adduce any evidence that demonstrated the injuries that she asserted were inflicted.

When cross-examined, she could not remember, and was unable to dispute, that shortly after their initial separation, and on 24 March 2007, she had sent him a text message stating: "Thanx (sic) for great nite. It's a shame we can't b (sic) together all the time. Im (sic) not interested in weekend things. U need to do something about it or else there is no use trying. At the moment we r (sic) going backwards."

Another text message, on the same day, as sent by the Plaintiff to the Defendant, was in the following terms: "I still love u Charlie, its really hard to have a relationship when we r apart. Last nite was great, it was the first time we spent alone and I enjoyed it. Im sorry to blame ur bro, but I tried to befriend and he never gave anyone the time of day, was also aggressive and made me feel uncomfortable. I am pissed of no efforts were made and has come to this. I tried so hard for 9 mths and it got too much. That's my reasoning and I wish ud understand. I luv 2 travel and see what we cud be together, its up 2 u. when we r away we can decide if its worth trying anymore. Im going 2 travel agent tomoro n would like to leave in 3 wks. Luv u". (I note that in the text message, the Plaintiff's complaint about "aggressive" behaviour refers to the Defendant's brother, and not to the Defendant. Interestingly, during her cross-examination of the Defendant, she attempted to ask him questions about his brother's conduct towards her on the occasion that the Police had been called, which questions I rejected.)

On 25 March 2007, she sent a text message to the Defendant in the following terms: "I am sorry for saying those things. I am hurtin for what has happened. I luv u.""

I do not accept that the reason that the Plaintiff sent these messages or desired to continue a relationship with the Defendant was because of threats by him of self-harm.

The Plaintiff also agreed that between when she moved out and when she and the Defendant moved back in together, they stayed at the Marriott Hotel together, the Crown Plaza at Parramatta, and that she took him to a work function at the Hunter Valley. They also went on holidays together.

When I asked her to explain the apparent inconsistency between the conduct referred to and what she had alleged about acts of family violence, she said: "You can still love someone but be involved in domestic violence". That may very well be true. However, on the evidence as a whole, I am not satisfied the Plaintiff established that during the first part of their relationship, there was family violence by the Defendant of the type, and the regularity, that she alleges.

However, I do not conclude that she gave that evidence for the purpose of misleading the court. As the Defendant admitted, the Plaintiff may have had a view of the relationship which differed from his and which had led her to the belief that there was family violence.

The Plaintiff also gives evidence that there were acts of physical violence in August 2007, in October 2007, December 2007, February 2008, and in March 2008. One particular event she says occurred whilst she was breastfeeding the child and the Defendant kicked her. There is no objective corroboration of any acts of physical violence. Nor is there any evidence that injuries were inflicted on any of these occasions.

The Defendant categorically denies that any of the incidents complained of took place. I cannot conclude that I disbelieve him on this topic. I simply have no reason to reject his evidence. This does not mean that I disbelieve the Plaintiff. It simply means that having heard each of them, I do not know which of the parties to believe. As the Plaintiff accepted, during submissions, "All the court has got is your saying he did and him saying he didn't".

It is difficult to come to a conclusion about who is telling the truth about the matters of physical abuse complained of and denied. Whilst I am unable to conclude that the Plaintiff has fabricated her evidence, on such a serious issue, she has not satisfied me, on the balance of probabilities, that such physical abuse as she alleges took place.

The Defendant also denied that there was verbal abuse constituted by his denigration of her. Whether, in that denial, he was referring to text messages sent to her was not entirely clear. What is clear beyond dispute, however, from a number of the text messages to which the Plaintiff referred in her affidavit, and which the Defendant did not deny having sent, is that there is a reference therein to the names that he had denied using in reference to the Plaintiff.

On this topic, I tend to believe the evidence of the Plaintiff, at least so far as it relates to the topic of the text messages sent. Otherwise, there is no objective evidence, or corroboration, to establish the verbal abuse alleged against the Defendant during the relationship.

Whilst in no way condoning the reprehensible and demeaning language used by the Defendant, I must remember that the text messages to which I have referred were all sent at a time very shortly after the final termination of their relationship and at a time when emotions were raw. That view does not justify the use of such language towards another person, but perhaps it places it in context.

I accept that the Plaintiff may have been frightened of the Defendant and, perhaps, of his brother. There was a Police application for an apprehended violence order against the Defendant in April 2008 and an apprehended violence order was made in June 2008, for 12 months. I have referred to some of the evidence that provides some support for her apprehension following the termination of the relationship.

I note, also, that the Defendant was charged with breaching the apprehended violence order in July 2008. The seven breaches related to him telephoning, sending text messages to, and two incidents of stalking, the Plaintiff.

In addition to not accepting the Defendant's denial regarding the derogatory names by which, on occasions, he referred to the Plaintiff in text messages, after the relationship ended, I found some of his evidence on the content of MSN messages that he had sent to the Plaintiff difficult to accept. He could not bring himself to admit that he continued to have strong feelings for the Plaintiff even after their relationship had ended. His evidence that written statements sent to her after the termination of the relationship, regarding how he felt towards the Plaintiff were motivated by a desire to remain "friends", was unconvincing.

I also do not accept his denial that, at the time before the termination of the relationship, he regarded her as being a good mother to their child and doing all that she could in the child's best interests. Whether he is justified in having changed his view since then, as a result of circumstances that have occurred, will be decided in another jurisdiction and, perhaps, on other evidence. There is no evidence of complaint about her care of the child during the relationship or immediately thereafter.

One other aspect upon which I do not accept the Defendant's evidence relates to discussions with the Plaintiff regarding purchasing a property together. The documents produced by his financial planner reveal some advice given to the Defendant about this matter. There is no suggestion of any one, other than the Defendant, providing the necessary instructions to the financial planner and there is no reason to think that a third party did so.

It is likely that after the birth of their child, the Plaintiff has made a greater contribution to her care and welfare. To some extent, at least since the end of their relationship, this is not because of a desire by the Defendant to abrogate his responsibility, but rather because of other events that have resulted in the amount of time that he spends with his child being limited pursuant to a court order.

It is impossible to speculate on whether there will be a change in the role he will play following the further hearing in the Family Court.

Neither party really investigated the non-financial contribution of the other under s 20(1)(b). This leads to my conclusion that neither really established that her, or his, contribution was greater than that of the other, to the welfare of the other during the course of the relationship.

My conclusion that the Plaintiff did not discharge her burden of proof on the allegations of family violence during the relationship means that it is not necessary for me to consider whether I should take it into account. In relation to the verbal abuse in the text messages, thereafter, I shall consider it in the overall matrix of facts in reaching a conclusion of what is just and equitable.

As I have said in other cases, 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. When it ended is not in dispute.

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."

Nor is it possible to apply some mathematical formula to the activities of the parties and determine whether the relationship has commenced. 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.

I note that in the Statement of Claim, the Plaintiff asserts that she commenced living with the Defendant at the end of May 2006.

In Jones v Grech Jones (2001) 27 Fam LR 711; [2001] NSWCA 208, at [70] and [76], Ipp AJA said: "[70] It is not uncommon for parties to a de facto relationship to terminate their relationship and, thereafter, at a later date, to re-commence living in a de facto relationship. On occasions, the same parties may live in a de facto relationship over many intermittent periods. The question therefore arises whether, for the purposes of s 20(1), each one of the intermittent periods is to be regarded as constituting a separate and different de facto relationship, or whether the aggregate of the intermittent periods is to be considered as being one de facto relationship to which the Court should have regard. ... [76] The purpose of the Act is remedial. It is intended to remedy injustice, inter alia, because the law prior to the Act had "the effect of permitting a de facto partner to be enriched at the expense of the contributions, whether financial or non-financial, made by the other partner." For that intention to be adequately fulfilled, it is necessary, in my view, for the contributions made by a de facto partner to be assessed by reference to the entire period of the de facto relationship, irrespective of whether it is made up of a series of broken or intermittent periods or whether it is constituted by one continuous period of cohabitation."

In Hamblin v Dahl [2010] FMCAfam 514; (2010) 239 FLR 111, Demack FM, at [63] - [65] said: "[63] In essence, it seems to me, that if two people commence or renew a relationship, then absent something extraordinary, they are renewing or recommencing the same relationship they had earlier. It would appear to be a fiction to suggest that two earlier intimates commenced a new relationship, rather than entering a new phase of their lapsed or previous relationship. And it would seem, that within the realms of human experience, having another intimate relationship for either a short or longer time, in the midst of another relationship, is not of itself extraordinary. [64] In this case, it should be remembered that although the parties ceased sharing a common residence in December 1999, from that time until the applicant commence her new de facto relationship with Ms M in 2006, the parties had maintained a relationship of some description. It is not a matter for this decision to clarify that relationship, but some relationship persisted during that time. In so much that it persisted, it provided an on-going link between the earlier and later periods of cohabitation that a ten year gap may not imply. [65] I cannot see that either the gap between periods of cohabitation, or the intervening de facto relationship between the applicant and Ms M have any extraordinary features which would draw me to the conclusion that these were two separate relationships."

In this case, I doubt that the parties, themselves, thought that they had two separate de facto relationships. I consider that they got back together and resumed their original relationship. To use the words of Master Macready (as his Honour then was) in McKone v Maretta [1999] NSWSC 438 at [60]; (1999) DFC 95-213: "In one sense having resumed their relationship one might regard it as a continuance of what was the former de facto relationship which existed..."

I have come to the view that after their separation, the parties simply recommenced their former relationship - they did not start another one. I shall treat the relationship, albeit punctuated by a break of about four months, as one relationship. To do otherwise, would, in my view, create a fiction; it would ignore the important fact that the same two parties to the relationship were involved; that the time apart was relatively short, and that during that time, they were in telephone, and other, contact.

Thus, I am satisfied that the de facto relationship between the parties commenced in about the end of May or early June 2006 and continued until about mid-March 2007. Then, the parties had a separation (between about mid-March and the end of July 2007) and then resumed their relationship (between about the end of July 2007 and 23 March 2008). In all, the relationship existed for about 17 months in total (excluding the period between 15 March 2007 and 28 July 2007). Accordingly, it was of less than two years duration.

Even if I am wrong in determining that there was just one relationship, it does not matter, since each relationship was of less than two years duration.

As I have said, the respective accounts of their relationship are contradictory. I endeavoured to explain to the parties that, in considering the issue of contribution, financial or otherwise, it is the contributions of both parties that must be considered and evaluated.

I am satisfied that at the commencement of their relationship, apart from the damages payment that the Defendant received as a result of his injuries and disabilities suffered in, or arising from, the motorcycle accident in which he was involved, the property of each of the parties was of little value and consisted of no more than personal possessions, a small amount of cash, and a motor vehicle. The value of the property as at the date of trial (excluding the value of the investment portfolio) was not significantly different.

However, taking into account the investment portfolio of the Defendant, the parties entered into the relationship with significantly unequal assets. Of course, the Plaintiff made no direct, or indirect, financial, or other, contribution to the damages award that the Defendant had received well before the parties met.

Their relationship, thereafter, was very short.

Neither party acquired any property, and there was no joint ownership, or co-ownership, of property during the relationship. There was no property purchased for their joint, or common, use or benefit (other than in respect of their child). Whilst the value of the Defendant's investment portfolio fluctuated during the relationship, virtually all of that investment has been spent.

The Plaintiff's submission was: "... what I feel I had to do with that was the contribution I made financially assisted Charles without having to withdraw funds from that share portfolio and if he withdrew those funds he would get interest and he agreed on that on the stand and he was advised not to do that as well."

It may be that the Plaintiff did pay some of the expenses but there were occasions when the Defendant withdrew cash sums from the proceeds of his investment. On one occasion, he withdrew about $45,000 and whilst it was initially drawn out for a specific purpose, it was used, at least in part, for the parties' joint, or individual, expenses.

In weighing up the contributions of each of the parties and carrying out the comparative assessment, overall, I am of the view that the financial contribution of each to her, his, or their, expenses of daily living of the type to which I have referred, were about equal, although it seems that from about September 2007, when the Plaintiff stopped work, the financial contribution of the Defendant was likely to have been greater. I am simply unable to conclude that, overall, the financial contributions of one were greater than those of the other. No doubt, there were occasions when the Plaintiff paid more than did the Defendant; at other times, it is likely that he paid more than she did. It is impossible to determine whether, over the course of their relationship, one made a greater contribution than the other, and if she, or he, did, over what period and by how much.

Furthermore, the financial contributions of each really did not go beyond what might be regarded as normal contributions made by each member of a couple who live together.

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 property. Of course, in contributing some proportion of his, her, or their, joint expenditure, that means that the Defendant did not have to expend his own moneys, but there was no obligation upon him to fully support the Plaintiff.

It seems that the expenditure of the parties was limited to expenses of daily living, such as rent, food, holidays, and associated expenses. In this regard, at times the Plaintiff seems to have contributed more, whilst at other times, the Defendant contributed more. In my view, considering their whole relationship, such contributions do not require an adjustment of property.

In relation to the homemaker contributions, prior to the birth of their child, each side asserts that her, or his, contribution was greater than that of the other. It is clear, from the evidence, that their relationship, at times, was somewhat difficult, although at other times, it appears to have been relatively harmonious and happy.

Whilst I tend to favour the evidence of the Plaintiff in regard to homemaker contributions after the birth of their child, it is impossible to conclude, on this topic, that the Defendant should be disbelieved completely. For example, I consider that his evidence on steps he took to clean the Bella Vista property after the Plaintiff left, in order to obtain the return of the bond, had a ring of truth to it.

I also accept, since it was not disputed, that it was the Plaintiff, who actually took steps to attend the Tenancy Tribunal to recover the bond. However, it appears that she received slightly more than half of the amount of the bond that was repaid, apparently, to take into account her efforts in this regard.

On the homemaker contributions during the relationship, I am not satisfied that the contributions of either were such as to lead to an adjustment of property. In regard to these contributions, the evidence was extremely general and neither party really challenged the evidence of the other in cross-examination.

Bearing in mind the duration of the relationship, and what I have said so far, one might consider that little scope at all exists for an adjustment of property interests based on the factors expressly stated by s 20(1), especially in circumstances where each party asserts financial and other contributions to the other. I must also remember that almost all of the Defendant's property, at the commencement of the relationship, and thereafter, was derived from compensation relating to injuries and disabilities he sustained before the relationship began.

At the commencement of the relationship, there was an inequality in the value of property of the parties; at the end, the financial position of each was not vastly different from that of the other. The Plaintiff's financial position improved, marginally, as she had more in savings than she had at the commencement of the relationship, although she had been employed, earning a reasonable salary, for most of the relationship. Whatever the Plaintiff had in the way of separate property at the commencement of the relationship, she retained at the end.

The financial position of the Defendant had not improved at the end of the relationship, but, at least in part, this was because of the impact of the global financial crisis. Whatever the Defendant had in the way of separate property at the commencement of the relationship, he retained at the end. The value of that property has changed, dramatically, for the Defendant, since the termination of the relationship.

In stating the above, I have not forgotten the allegations of family violence and the conclusions I have reached, particularly in the period following the termination of their relationship. Whilst I accept that the repeated text and MSN messages were unwarranted and inappropriate, and that the Plaintiff would undoubtedly have felt threatened by what occurred, I do not consider that an adjustment of property is warranted on that account either. Whilst not in any way condoning the Defendant's conduct, I accept that emotions may run high upon, and shortly after, the termination of what was, at some time, a loving relationship. I also realize that these emotions were inflamed, even more, in the present case, because of the Defendant's belief that he was being kept from sharing the experience of the parties' child.

Since the birth of their child, I consider that the Plaintiff's non-financial contribution as a parent has been greater than that of the Defendant. She has been the full-time carer of the child from her birth, although, in part, this has been caused by the, as yet undetermined, very serious allegations that have been made against the Defendant which have resulted in his contact with their child being limited and supervised. I remember that the contribution made by the party performing that role (in this case, the Plaintiff) should be recognised "not in a token way but in a substantial way".

I am also satisfied that the Plaintiff is paying expenses for the child, but the Defendant is contributing in accordance with the child support assessment (although, presently, he may be two months in arrears). As the father of the parties' child, he has legal obligations, together with the Plaintiff, to provide for her support, which obligation he appears to accept. That obligation, has been, and if necessary, may be, addressed, under other legislative provisions for child support. Neither party has any obligation to maintain the other.

Objectively viewed, at the present time, the Plaintiff's most compelling claim is for a property adjustment reflecting the fact that, since separation, she has continued to have the primary responsibility for the parties' child. However, as I have said, this is not because the Defendant has abrogated that responsibility to her. To the contrary, he has maintained, and it seems, continues to maintain, a desire for a greater involvement in the day-to-day care of the child. The Plaintiff conceded that since interim parenting orders have been in place, the Defendant has participated, so far as he is able to because of the orders, in caring for the child.

Whether the current arrangements will change cannot be predicted. A hearing, for five days in February 2012, in another jurisdiction, will determine that issue.

I reject the Plaintiff's submission that she stated in this way: "I entered the relationship as if it was a de facto relationship. I went into a relationship in a domestic relationship on the basis that we were living together as a couple and when Annaleise was born we were living together as a family. I believed on that basis all of our assets would be included as one."

That is not what the Act provides. 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: Kemp v French at [38].

In all the circumstances, I am of the view that no order adjusting the interests of the parties in the property is just and equitable having regard to 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 to 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 a child of the parties,

Even if I am wrong in concluding that an adjustment order should not be made, there is another reason for not making a property adjustment order in the present case. It is a necessary prerequisite to the making of an order under the Act for the Court to determine that there exists property to meet the order and the order made must be just and equitable in the circumstances of the case. An order can only be seen to be just and equitable if it can be measured against the whole of the available property of the parties. The justice and equity of an order must address the interests of both parties, not just the interests of one.

I have carefully considered the Plaintiff's submissions that the Defendant has not satisfactorily accounted for about $65,000. Whilst the cross-examination of the Defendant does lead to the view that his explanation of the expenditure of the amount of $60,000, withdrawn in January 2011, together with other amounts withdrawn since then, is not entirely credible, I note that in the affidavit sworn in September, 2011, he had said that he had paid about $230,000 (not about $170,000) in legal expenses. At the time he prepared that affidavit, he could not have known the substance of the cross-examination, or that, ultimately, an amount of about $65,000, would be the amount said to be unexplained.

It follows that the property available to be adjusted is only the amount of about $12,000 (since the Plaintiff accepted that the Defendant required a car for the benefit of their child). In circumstances where that is all that is left of the damages awarded to the Defendant, and where it is clear that the Plaintiff made no financial contribution to the property, it having been awarded before the parties met, other than as set out above, I do not think it would be just or equitable to make an order in favour of the Plaintiff which would have the effect of denuding the Defendant of the whole, or part, of that amount.

What little remains of the property of the parties, or either of them, in the possession of each, should be retained by that party, with no other orders made in relation to property settlement. It follows that the Plaintiff's claim should be dismissed and I so order.

In the circumstances of the case, and in the exercise of my discretion, I do not propose to make any order for costs.

I order that the exhibits be dealt with in accordance with the Uniform Civil Procedure Rules 2005.