Stelzer v McDonald [1999] NSWSC 602

New South Wales Supreme Court CITATION : Stelzer v McDonald [1999] NSWSC 602 CURRENT JURISDICTION : Equity FILE NUMBER(S) : 3083/97 HEARING DATE(S) : 02/06/99 - 04/06/99 and 07/06/99 JUDGMENT DATE : 8 June 1999

PARTIES : Christine Stelzer (Plaintiff/ Cross-defendant) Douglas McDonald (Defendant/ Cross-claimant) JUDGMENT OF : Bergin J

COUNSEL : Miss V. Heath (Plaintiff) Mr A. Todd (Defendant) SOLICITORS : Miles Clinton Solicitors (Plaintiff) Needs Chan & Monahan Solicitors (Defendant) CATCHWORDS : De facto relationship for period less than 2 years. Consideration of matters to be taken into account on adjustment of interests in property ACTS CITED : De Facto Relationships Act (NSW) 1984 - s15, s17, s20, s56 Evans v Marmont (1997) 42 NSWLR 70 Dwyer v Kaljo (1987) 11 FamLR 785 Hayes v Jones, (Court of Appeal, Unreported 27 July 1998) Linham v Director General Social Security 9 FamLR 305 CASES CITED : Jordan, In the Marriage of (1996) 21 FamLR 382 Roy v Sturgeon (1986) 11 FamLR 271 Theodoropoulos v Theodosiou (1994/95) 19 FamLR 632 Griffiths v Brodigan (1995/96) 20 FamLR 822 Bivano v Natoli (1998) DFC 77845 DECISION : Property interests adjusted paragraphs 129 - 136

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BERGIN J

TUESDAY 8 JUNE 1999

3083/97 - CHRISTINE STELZER v DOUGLAS MCDONALD

EX TEMPORE JUDGMENT

1 This is an application made by Christine Stelzer, the plaintiff in these proceedings, by way of Statement of Claim filed on 3 July 1997. 2 The plaintiff seeks a declaration pursuant to s 56 of the De Facto Relationships Act 1984 that the de facto relationship existed between 11 August 1989 and 2 January 1996, a period of some six years and five months or so. 3 The plaintiff also seeks an order pursuant to s 20 of the Act that she be declared the beneficial owner of 117 Holt Road, Taren Point. 4 Additionally the plaintiff seeks an order for a payment out of a joint account of the plaintiff and the defendant of an amount of $100,000 representing, she claims, her direct and indirect financial contributions to, as it is put in the Statement of Claim, "the de facto relationship". 5 There is then an order for return of some furniture and an alternative plea that a declaration be made pursuant to the terms of s 17 (2) (b) (i) of the De Facto Relationships Act, ("the Act"). 6 The defendant to the proceedings, Douglas Raymond McDonald, defends this action. He denies the existence of the de facto relationship for the substantial part of the period that the plaintiff claims, admits to a de facto relationship between January 1995 and January 1996 and then seeks by way of cross-claim an order pursuant to s 20 of the De Facto Relationships Act that the plaintiff pay to him an amount totalling $320,000. He also seeks the charging of the property at 117 Holt Road. 7 The plaintiff is represented in these proceedings by Ms Heath of counsel and the defendant is represented by Mr Todd of counsel. The hearing took place before me on 2, 3, 4 and 7 June 1999. Parties and their History 8 The plaintiff first met the defendant in 1970 when they were involved with mutual friends. The plaintiff was then 19 and the defendant was 25. They had a platonic relationship during the period 1970 to 1974. Between 1967 and 1973 the plaintiff was in what she has described as an intimate relationship with Frank Stelzer. That relationship apparently finished in 1973, although it is not clear of the circumstance of the termination of that relationship. 9 In 1974 the plaintiff lost contact with the defendant in these proceedings when she became an air hostess or flight attendant with TAA. 10 In 1975 the plaintiff once again met up with the defendant and at that time commenced an intimate relationship with him. It is not clear to me on the evidence when that relationship commenced but in any event there is no issue between the parties that that was a close and intimate relationship. 11 In 1975 the plaintiff travelled to Singapore with friends, relevantly one Ms Althea Seagar and in Singapore met up with some friends and apparently Ms Seagar's parents. It was in Singapore that the plaintiff met up again with Mr Stelzer at which time the relationship that she had enjoyed with him between 1967 and 1973 was recommenced. 12 In 1975 on her return to Australia from holidays the plaintiff informed the defendant that she had decided to terminate her relationship with him and, although it is not expressly stated, it is clear that the defendant was aware that the plaintiff had chosen Mr Stelzer as an intimate partner instead of him. Indeed, the evidence discloses that the defendant was somewhat persistent and questioned the plaintiff as to whether she had in fact made the right choice. In any event, it is apparent that the plaintiff was clear in her mind as she married Mr Stelzer in 1976 and in that marriage a daughter, Bree, was born in about 1983 or 1984. 13 That relationship apparently soured and ended in January 1989. In July 1989 the plaintiff telephoned the defendant and asked him whether he would accompany her to a dinner as her partner. At that time, in July 1989, the plaintiff was living with her daughter at premises at 33 Griffiths Street, Sans Souci. The defendant was living at 155 Holt Road, Taren Point. 14 The defendant had purchased 155 Holt Street around 1980. A photograph of the property is in evidence. It was a weatherboard, timber property with a street frontage and to the lay eye a fairly plain cottage, the size of which is difficult to tell from the photograph. 15 There is nothing of great detail to assist me as to the nature of the plaintiff's premises at 33 Griffiths Street at that time, although it is clear that the premises had a pool and some outdoor area. It is also apparent that these premises were of a timber construction, at least in part. 16 On 11 August 1989 the plaintiff and the defendant apparently attended that dinner together to which the plaintiff had invited the defendant. It is from this date that the plaintiff alleges the de facto relationship commenced. The defendant denies that. 17 It is clear that between 1989 and 1996, with some detail of some parting of the ways during that period to which I will refer, a relationship of sorts was in place between the plaintiff and defendant. The versions of the plaintiff and the defendant differ in some important aspects in relation to the nature of their relationship but it is clear that they were in a relationship from about 1989 to 1996. 18 It is clear between January 1989 and about the middle of 1990 the plaintiff was settling her property settlement and final separation and divorce from Mr Stelzer. That property settlement apparently was finalised in 1990 when the plaintiff received her former husband's share of the house in 33 Griffiths Street, together with a cash payment. That cash payment was somewhere around $80,000 or $90,000 but the plaintiff denied it would be $100,000. Additionally the plaintiff received a form of payment from the former husband in respect of the care of their daughter, Bree. It is apparent this was about $110, although the period during which that was paid is not clear from the evidence. 19 The plaintiff and the defendant continued their relationship in 1990 and in 1991 they went together and with Bree on a holiday to Fiji. This is a matter of some importance, to which I will refer in due course. The relationship continued until 1994 when the plaintiff and the defendant decided to purchase a property together and develop it. 20 In June 1994 they purchased the property known as 117 Holt Road, Taren Point. After it was purchased the defendant cleaned it up and the property was rented for some months. In all of this period the plaintiff had continued to live in her home at 33 Griffiths Street and the defendant had kept his home at 155 Holt Road. In late 1994 the plaintiff sold 33 Griffiths Street and moved into 155 Holt Road on 14 January 1995 with her daughter, Bree. 21 When the parties purchased 117 Holt Road the plaintiff contributed $91,842 and the defendant contributed $275,659. When the plaintiff sold her home at Griffiths Street she received a net figure of $400,515 and shortly after settlement on 25 January 1995,deposited the money into six separate St George interest bearing deposit accounts. The accounts were in the name of Classic Developments Pty Ltd. That was the defendant's company which was a vehicle for the development of the property and apparently a vehicle for him to carry out his profession or trade as a builder in which he had been since aged 16 and his skills in that regard are obvious and I shall refer to them in due course. 22 In 1995 the cash contributions of the parties were such that the plaintiff had contributed a portion of the amounts in the interest bearing deposit accounts to a total figure of $391,184 and at the end of the development the defendant had contributed cash of something in the order of $299,000. 23 The rental that was received for the property prior to its development is said to be somewhere in the vicinity of $4,000 odd and the interest received on the interest bearing deposits is said to be in the amount of some nearly $16,000. 24 The plan seems to have differed between the plaintiff and the defendant but, putting to one side their differences, it is clear that the development of 117 Holt Road took place in 1995, in the main between May and November. 25 There was some evidence about a Local Environment Plan having some impact on the premises so that a two storey house was built at the street frontage and a single storey dwelling in the battle axe block with a right of carriageway from the street to that back block. The construction was completed in November 1995 and it is clear that at about that time the parties had begun to experience some deep problems in their relationship, so much so that they parted, separating on 2 January 1996. 26 On 14 December 1995 the two storey dwelling known as 117 Holt Road was transferred to the plaintiff. The transfer indicates that the consideration for this transfer was for $1. It is clear that the plaintiff moved into those premises in 1996, she having lived with her father and her daughter at his home for some period after the initial separation on 2 January 1996. 27 On 1 March 1996 the single storey dwelling, 117A Holt Road, was sold for an amount of $380,985. Those proceeds were placed into a joint account and $200,000 has been paid out to the defendant in June 1998, the balance of approximately $243,000 remains in the account. 28 At the time of the trial before me the plaintiff was living in 117 Holt Road, the defendant was living in 155 Holt Road and the joint account remained at approximately $243,000. The Law 29 Section 17 of the Act precludes a Court from making an order under Pt 3 (Proceedings for Financial Adjustment) unless the Court is satisfied that the parties to the application have lived together in a de facto relationship for a period of not less than two years. If the Court is satisfied that the relationship subsisted for two years or more then the Court may make an order under s 20 adjusting the interests of the parties in the property. The Court may adjust those interests as to it seems just and equitable and it does so having regard to the matters identified in s 20 (1)(a) and (b). Importantly the Court has regard to the financial and non-financial contributions made directly or indirectly to the acquisition, the conservation or the improvement of any of the de facto property or the acquisition, conservation or improvement of financial resources of the partners, or either of them. The Court also has regard to the contributions, including any contributions made in the capacity of homemaker or made by either of the partners to the welfare of the other partner or to the welfare of the family constituted by the partnership. 30 Even if the Court is not satisfied that the de facto relationship endured for a period of two years then it is able to make an order adjusting the interests of the partners in the property if it is satisfied that an applicant has made substantial contributions of the kind referred to in s 20, to which I have just referred. 31 I have been helpfully referred to the authorities in relation to the approach to be adopted by the Court which supports the approach that it would be unrealistic to attempt to evaluate the contributions of the kind to which I have just referred for the purposes of determining what is just and equitable by having regard to those contributions in isolation from the nature and the incidents of the relationship as a whole. 32 In Evans v Marmont (1997) 42 NSWLR 70 the Court adopted the approach to which I have just referred and suggested that relevant aspects of the relationship, that is its nature and incidents, may well include matters to which Hodgson J (as he then was), had referred in Dwyer v Kaljo (1987) 11 Fam LR 785 at 793. 33 The matters to which Hodgson J referred included the financial circumstances of the parties, the property at the time of the hearing, the needs and the means of the parties, although his Honour was very careful to highlight that the relevance of that factor had only a general relevance to the process of answering the question which was posed, what is just and equitable having regard to the plaintiff's contributions? 34 His Honour also referred to factors such as the length of the relationship, any proposal or expectation of marriage and opportunities lost by the plaintiff's contributions. 35 It is clear that no particular limit can be set upon the considerations but in determining this matter the Court is clearly exercising a judicial discretion and it has been said it must be exercised solely on the basis of one, the respective contributions of the parties and two, in the light of such other circumstances as might properly be regarded as relevant and which seek to produce a result which, in all the circumstances of the case, is just and equitable. 36 The Court is required to identify and value the property of the parties to determine whether any and if so what contributions have been made by each partner and determine firstly, whether in all the circumstances of the case the contributions of the applicant have already been sufficiently recognised and compensated for and secondly, what, if any, order is called for in order that the applicant's contributions be sufficiently recognised and compensated for. (Hayes v Jones, Court of Appeal, unreported, Powell, Beazley and Stein JJ, Butterworths Unreported Judgments at pp 6 and 7) 37 So, I must approach this task as is required in line with Evans v Marmont in a realistic way and not in isolation from the nature and the incidents of the relationship of the parties. De Facto Relationship 38 This brings me to the first matter about which there is rather a large issue and that is whether the de facto relationship existed between August 1989 and January 1996, or some other time. 39 Each element of a relationship, of course, needs to be assessed realistically and it has been said that each element draws its colour and its significance from other elements and what must be looked at is a composite picture. It has been suggested also that any attempt to isolate individual factors and attribute to them relative degrees of materiality or importance involves a denial of common experience and will inevitably lead into error; see Linham v Director General Social Security 9 Fam LR 305 at 307. 40 It is obviously a question of fact and degree in determining whether the parties have been living as "husband and wife" as facets of their interpersonal relationship need to be taken into account. Although the financial relationship is important it is only one of a number of relevant matters. It seems to me that Evans v Marmont has gathered together all these concepts in its approach to a realistic assessment of relationships when applications are made under this Act. 41 The defendant concedes that there was a de facto relationship between January 1995 and January 1996. In August 1989 it is apparent that the plaintiff worked for Air New Zealand at the airport. She worked shift work which enabled her to earn penalties. The early shift ran from 6am to 11am, or about midday and the late shift commenced at 1pm and would finish no earlier than 6pm. The plaintiff said she would arrive home sometimes as late as 7.30pm or 8pm and sometimes later but it really depended upon whether the Air New Zealand flights were delayed. There is no evidence before me as to the frequency or otherwise of delays of the Air New Zealand flights. There is some evidence that the latest scheduled departure of a flight when the plaintiff was on late shift was about 6pm. 42 When the plaintiff rang the defendant in July 1989 she said to him, "Would you like to attend a dinner with me as my partner?", and he agreed. She was aware at the time that she spoke to him that he had been and was at that time conducting his own building business and he was aware that she worked for Air New Zealand. 43 The defendant says that he attended a dinner with the plaintiff on 11 August and after that dinner, as he put it, "We ended up at my house with two of the plaintiff's friends." It is apparent from his evidence that the friends left in the early hours of the morning and that he and the plaintiff went to bed together at his house and spent the rest of the weekend at his house because Bree was visiting her father, who apparently had access every second weekend. 44 The plaintiff's evidence in her first statement was that she and the defendant commenced living together from that date in her home at 33 Griffiths Street, Sans Souci. Of that evidence the defendant says: "After being together for about one week I was not interested in shacking-up with her after she dumped me years before and she just split up from a bad marriage ." 45 The plaintiff told the defendant that when her mother stayed overnight to mind her daughter when the plaintiff was on early shift she did not appreciate the defendant staying overnight with the plaintiff. The defendant said that the plaintiff told him, "Mum frowns on that sort of thing". When the plaintiff's mother stayed overnight the defendant would go home when the plaintiff went to bed. There is no issue between the parties that the sexual relationship commenced in August 1989. 46 The defendant also gave evidence that he stayed overnight with the plaintiff on many occasions but his version was that he usually ate his dinner at his own home before he went to the plaintiff's premises at night. He said that it was his habit to go to work during the day and because of the nature of his work he would return home and have a shower and then he would ring the plaintiff later on in the evening and go over to her place, stay the night and then return in the morning and go off to work. 47 There was an issue between the parties as to who cooked dinner and where each of the parties ate dinner. There is no doubt that the plaintiff cooked meals for the defendant. There is no doubt that the defendant took the plaintiff out to dinner, it seems on numerous occasions. The regularity of the parties going out to dinner, is not so clear but it is apparent that it occurred once a week at the club, or a good restaurant depending upon the circumstances. The plaintiff's version was that it was less frequent than once per week. Bree liked going to a restaurant chain known as Sizzler but the defendant became irritated with having to stand in line at those restaurants and so other choices were made, which included a local club. 48 In any event, no matter what the frequency, it is clear that although the defendant maintained his home at 155 Holt Road and the plaintiff maintained her home at 33 Griffiths Street, they spent a lot of time together. 49 In 1991 they decided to go for a holiday to Fiji, to which I have referred earlier. In that respect the plaintiff gave evidence that that holiday occurred between 18 March and 25 March. The plaintiff said that at that time she was, employed at Air New Zealand and was able to obtain a discount from the airline for that holiday. She told me that the discounted airfares are available for staff and their family members. 50 Annexed to her first statement were two documents. A statutory declaration declared on 17 November 1994: "Christine Stelzer of 33 Griffiths Street, Sans Souci solemnly and sincerely declares as follows: Douglas Raymond McDonald is my de facto spouse and has been residing at the above address since 1989 ." 51 Another annexure dated 19 February 1991 is more pertinent to the Fiji trip. It is a memorandum from the plaintiff to the Personnel Administration Manager of Air New Zealand in which the plaintiff said: "I wish to nominate my de facto spouse Douglas Raymond McDonald for staff travel. Please refer to enclosed bank statement as proof of my relationship ." 52 The plaintiff went on to note that the other nominee was her father and asked the administration to amend their documents appropriately. 53 The defendant said that he paid for the fare and all accommodation and meal expenses for himself, for the plaintiff and for her daughter. He said the plaintiff had told him that there were several ways in which it was possible to obtain discounted airfares. He said that the plaintiff told him the first was if there was a de facto relationship and the second was if there was a joint bank account. He could not remember the other ways that the plaintiff had told him it was possible to achieve a discounted airfare for him. He said that he had never seen the correspondence dated 19 February 1991 which the plaintiff annexed to her statement, nor had he seen the statutory declaration of 1994. The plaintiff proceeded to obtain the discount for Mr McDonald on the basis that he was effectively part of a family set up with her which would entitle him to the benefit of a discounted fare. 54 This matter was raised with the defendant in evidence and is the subject of a certificate pursuant to s 128 of the Evidence Act. The defendant said that he understood that the plaintiff was putting him forward as her de facto and he was happy for her to do that. He said "in the context that I was getting the cheap fare". When asked whether he would lie to Air New Zealand to obtain the benefit he said, "in this case I guess I did, or allowed her to". 55 The defendant was asked some further questions about that matter and said that he didn't consider that the plaintiff could have lost her job if a lie was told. As to whether such conduct of telling a lie to obtain a financial benefit might expose him to criminal proceedings he said: "I may have been aware of it but it wasn't a consideration. I never thought along those lines about it at all." 56 The plaintiff relies heavily on this evidence of the defendant allowing her to put him forward as her de facto to obtain a benefit and suggests that the material before me should persuade me that the defendant ought be estopped from denying that the relationship was in place as and from 1991. 57 I regard the matter as a little more complex than the Elias principle to which Ms Heath referred me in In the Marriage of Jordan (1996) 21 Fam LR 382. In the line of authority referred to in that case the Court was concerned with parties who had in fact split their income for taxation purposes. Declarations had been made to the Commissioner for Taxation in respect of tax in respect of wives' income and also in respect of property being placed in the name of one spouse or another. 58 What Mr McDonald said in his statement was that the two issues that the plaintiff had informed him about were one, being a de facto or two, having a joint bank account. There is no doubt that the parties opened a joint bank account into which they placed about $50 and it remained moribund thereafter. 59 The need to assess the nature of the relationship between these two people is more complicated, although a feature of that assessment will include the fact that the defendant did allow the plaintiff to obtain what is known as an ID 90 airfare, which is a payment of 10 per cent, for him to Fiji. However I am not satisfied that the defendant is estopped from denying that his relationship with the plaintiff was not a de facto relationship in 1991. 60 There is no doubt that the plaintiff believed what she was saying and any suggestion that she had obtained anything from Air New Zealand in an other than honest way has no foundation, indeed such an allegation has not been made in these proceedings. 61 The relationship between the parties included the defendant assisting the plaintiff at her premises in a way that the plaintiff says should convince me that they were in a de facto relationship. Mr McDonald admits that he did quite a deal around the home and in para 41 of his statement filed on 30 March he sets out in detail a number of the things that he did for the plaintiff whilst she was living at Sans Souci. As sometimes occurs in these matters great detail has been gone into as to whether each of the matters in that list actually occurred, how many times he mowed the lawns, the number of occasions he varnished outdoor settings, whether he stained certain timbers on the house or cleaned the gutters and the like. On the one hand the defendant was stating he carried out these activities and on the other the plaintiff was suggesting that he did less than he claimed. The parties are peculiarly turned about. The plaintiff wants to rely on the fact that the defendant carried out these activities to prove the existence of a de facto relationship but to deny their existence in proving her contributions. The defendant on the other hand wants to rely on the activities as contribution but to dilute their affect on the de facto relationship aspect of the case. 62 Be that as it may, it is obvious that the defendant did assist around the house at 33 Griffiths Street. Additionally the plaintiff says that the nature of the relationship was such that the defendant assisted her father in renovating his home and it is clear that the defendant did assist Mr Dovey, the plaintiff's father, who was called in these proceedings. 63 It is also clear that the defendant and Mr Dovey had a good relationship. The nature of the relationship between the defendant and the plaintiff's mother is not so clear and the relationship between the plaintiff and the defendant's mother, who sadly died in August 1994, was also clearly of one of mutual liking and the plaintiff attended her in hospital on a number of occasions. 64 In any event, the plaintiff points to these factors to suggest to me that as early as 1991, indeed in 1989, the de facto relationship existed. It is common ground that the defendant had an excellent relationship with the plaintiff's daughter Bree. Some detail of that relationship appears in para 43 of the defendant's statement filed on 30 March 1998. There is no doubt that the defendant was generous, indeed very generous not only with his money but his time. That, says the plaintiff, should convince me that it was a de facto relationship. 65 The parties had an argument in 1991 around the time of the plaintiff's 40th birthday. On the one hand the plaintiff says they were parted for about three weeks or so and on the other the defendant claims a much longer period of some six or seven months. However, in his oral evidence the defendant seemed to concede that it was less than seven months they would have been apart but suggested it was about from September 1991 through to about January 1992. 66 It was obvious that the plaintiff was going to have a party for her 40th birthday and the defendant had planned a party for her. Those plans went awry at the time of the argument and the plaintiff did not attend the 40th birthday party, which apparently took place on a friend's boat. It has been suggested to the defendant in cross-examination that his version of this separation is exaggerated and a number of aspects and incidents of being together with the plaintiff during that period were put to him. The defendant denied a number of them and conceded that he went to a mutual friend of his mother's on Christmas day but said the plaintiff was not there. 67 There is no doubt in my mind that the parties had an argument, the defendant referring to it effectively as a "tiff". There is also no doubt in my mind that they did not communicate with each other for at least three weeks. I was impressed by the way the defendant suggested he got back together with the plaintiff, as it seemed to me to have some truthful ring about it. He said he was up the coast visiting some friends and with a smile told me "I thought I might just drop in". That seemed to me to suggest that he decided he wanted to get back together with the plaintiff. And so the relationship continued once again with him keeping his home in 155 Holt Road and the plaintiff keeping her home at 33 Griffiths Street. 68 The parties attended a counsellor and the issue of what was said by the counsellor was somewhat controversial. It had been objected to by Mr Todd as being inadmissible on a policy ground because what had been said was confidential between the parties and the counsellor. I ruled against Mr Todd in the circumstances of this case and allowed the evidence to be given. Ultimately, however, it didn't seem to me that it helped very much in the assessment of either party's case. 69 The statement that was made to the counsellor seems to have been that the parties were living in separate houses. The reason for going to the counsellor, put forward by the plaintiff, was that the defendant was experiencing some problems in his relationship with Bree at that time. The defendant said that when the counsellor heard they were living separately she appeared to lose interest. 70 Another factor that to which Hodgson J referred to which I may have regard in this respect is the question of the expectation of marriage. It seems to me that this aspect of the parties' relationship may be a key. It is apparent that the defendant asked the plaintiff to marry him when they were together in 1975, or thereabouts, and he was rebuffed. The defendant says that when they started the relationship in 1989 and to the time that they parted marriage was not discussed. The plaintiff on the other hand says that it was discussed. 71 Originally she said that it was discussed in this way; she said: " Late in 1989 the defendant said to me words to the effect 'I am not going to ask you to marry me again now but if that's what you want we'll get married.'" 72 She then said on another occasion, although the date was not clear from her statement, that the defendant said to her, "maybe we'll get married when we get our waterfront dream home". 73 When she gave her evidence before me in the trial the plaintiff said: "We discussed it and he said that we would get married once we moved into the waterfront house ." That was on the first day of the hearing at p 9 of the transcript. 74 In her case in reply the plaintiff was cross-examined on this topic by Mr Todd and she gave this evidence (p240): "Q. Can you say at this point in time when it was if at all during the 1989 to 1995, January 95 period, that you stated to Mr McDonald unequivocally that you would marry him, did that occur? A. No. The reason that I would not accept to get married before was because I didn't want my daughter's name to change and it would have been difficult for her in school if I had a different surname. That was the only reason." 75 She was then asked about being able to get married and not changing her name. Although she agreed with that possibility she said that there would still be a difficulty. She was then asked (p241): " Q. The position was you had not committed yourself to marriage with Mr McDonald prior to 1995, had you? A. I thought we would eventually get married ." 76 Originally the plaintiff was tentative but later became firmer with the statement: "we would get married when we moved into our waterfront home". 77 The mention of the waterfront home is a reference to a plan the plaintiff said she and the defendant had of a dream home on the waterfront. It seems the plaintiff fixed the time for marriage as the moving into the waterfront home and yet she expressed concern about her daughter and schooling. It seems to me that the plaintiff's expressed opinion that: "I thought we would eventually get married" is the true position about this relationship. In my view there was some reticence in both parties in approaching the subject of and commitment to marriage by reason of their history; the defendant, having been rebuffed in 1975, and the plaintiff having suffered an unsatisfactory break-up of her first marriage. 78 The parties had separate homes and separate bank accounts. The plaintiff accepted that the defendant would ring her at night before coming around. She said in her evidence in respect of the shift work that "we would eat together after he rang me and came over for the evening". It seems to me that there was a separateness to their lifestyle and that separateness was precipitated by each of their reticent approaches to committing themselves to a long term marriage-type relationship. But in 1994 they became closer. 79 Between March and May and it is not clear specifically when, the parties decided to purchase a property together. That was 117 Holt Road. It is clear that the plaintiff had money in an account apparently available from her property settlement from Mr Stelzer. Before I deal finally with the purchase of 117 Holt Road it is important to refer to one other aspect on which the plaintiff relies and that is the suggestion that the defendant by his conduct with her former husband made it clear that the relationship was one of a de facto kind. 80 The ex-husband, Mr Stelzer, had apparently adopted an attitude that he could visit the house at 33 Griffiths Street, Sans Souci at any time he liked. This was apparently unsettling for the plaintiff. She informed the defendant of this and the defendant told the plaintiff that he should be telephoned next time the ex-husband came around and the defendant would deal with it. It is clear that the defendant assisted in this regard by informing Mr Stelzer that perhaps a little more discretion had to be exercised, to use a neutral term, in his visitations to the house. The plaintiff says that the defendant told the ex-husband that he was now in charge. The plaintiff relies on this approach as a factor going to the establishment of a de facto relationship. I have taken that into account in making the assessment of this matter. 81 I should now return then to 1994 when the parties purchased 117 Holt Road. It was at that time that the plaintiff contributed $91,000 odd to the purchase of that home. 82 These circumstances in which the plaintiff and the defendant find themselves it seems are exquisitely uncomfortable. Neither of them has much good to say of the other party at the moment because of their bitterness. However, there are some features in their evidence which suggest that they still have a respect for each other in some regards. 83 In these circumstances therefore it is difficult for the parties to assess the situation objectively because that bitterness permeates the atmosphere. It is therefore important to look to other evidence which may assist in the assessment of the respective claims. 84 The plaintiff's father Mr William Dovey who gave evidence impressed me as an extremely honest, caring father. He was very matter of fact about his observation of his daughter in her relationship with Mr McDonald and told me that he thought the relationship was somewhat volatile. He did not ever hear the plaintiff referred to by the defendant as his "better half", notwithstanding the fact that the plaintiff had suggested that was the way the defendant referred to her. The plaintiff makes the point, however, that he would not have referred to her as his "better half" in front of a parent. 85 There was then the evidence of Ms Seagar, the friend of the plaintiff's with whom she went to Singapore in 1975. It is obvious they have maintained their friendly relationship over the years since that time. The affect of Ms Seagar's evidence was that there was animosity between her and the defendant. She told me she would wait down the street until the defendant left before she would go into 33 Griffiths Street. She said that the defendant had a particular attitude to the plaintiff's friends and that was known amongst a group of friends. 86 That does not seem to assist the plaintiff, however. It seems to me that if the plaintiff has to be telephoned to make a time to see her friends when the defendant is not there, it may militate against a de facto relationship being in place. On the other hand, it is relied upon by the plaintiff I presume to show that she was restricted in her friendships. 87 A more neutral witness was Mrs Ford who was a neighbour of the plaintiff for some time when she lived in 33 Griffiths Street. Mrs Ford said she did not have much to do socially with the plaintiff and defendant between 1989 and 1992 but from 1992 and onwards they began to socialise more often. In the period that she has known the parties they have only been out to restaurants three or four times and she very honestly conceded that she was pretty busy with her four young children and perhaps did not have a great deal of time to socialise or to attend to the observation of the couple, as she called them, on a regular basis. However, she did have some significant evidence to give in assisting me in respect of what seems to me to be a vexed question for these parties. She was told by the plaintiff that she was going to sell her home which sale occurred in December 1994. Mrs Ford said: "Chris (the plaintiff) explained to me that she was selling her house as a commitment to their relationship and that was the only reason she would embark on that because I asked her why she would sell her house and she said 'I have been with him now for four years, I mean it is now or never'." 88 As with most things in this case the plaintiff relies on it for one purpose and the defendant for another. 89 The plaintiff says that she is entitled to have that evidence weighed in her favour, whereas the defendant says that this is an indication that it was only from this time that the plaintiff had decided to commit herself to this relationship with an intermingling of finances, with the selling of her home, with the commitment to what he admits occurred in January 1995, a de facto relationship. 90 In all the circumstances I think it occurred earlier than the sale of the plaintiff's home. It has been difficult to assess this matter because of the varying versions given by the plaintiff and the defendant. 91 It is said on behalf of the defendant that I should have some reservation about the plaintiff's evidence and conclude that she has exaggerated the nature of the relationship. It is submitted that that reservation springs from some evidence that was given in reply when the plaintiff was cross-examined about the finding of some cash in the defendant's mother's home after she demised. That occurred in August 1994 and in cleaning out the house and arranging the defendant's mother's affairs Mr Dovey assisted the defendant and the plaintiff. 92 The plaintiff was originally cross-examined in her case in chief and told me that she was not aware that some $27,000 in cash had been found in the defendant's mother's home. She was asked (p37B): "Q. Madam, she had cash within the home which you and Mr McDonald and your father located at the time of clearing out the residence of (her) chattels and effects, didn't you? A. No.