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. Q. Are you seriously saying there was no money there? A. There was a little bit of money in her handbags which I gave to Doug. Q. I want to suggest to you that the amount that was in the home in cash in various forms, in envelopes and the like about the house, totalled some $27,000? A. I don't know." 93 When the plaintiff was cross-examined yesterday in her case in reply she conceded that Mr McDonald had told her that there was $30,000 at the time in the defendant's mother's home. 94 Mr Todd suggested to the plaintiff that she had been caught out in failing to tell the Court the truth on her first occasion in the witness box. The plaintiff's explanation for not mentioning that the defendant had told her about the money was that she did not believe that the defendant's mother could have had that much cash there and therefore she did not know whether it was really found and therefore I should not draw any adverse inference from the apparent difference in her evidence on the two occasions. 95 The defendant relies on the plaintiff's father's evidence which was that he did find an envelope lodged between some furniture at the defendant's mother's home and gave that envelope to the plaintiff to give to the defendant with instructions "don't count it, give it to Doug", or words to that effect. It seems to me that the evidence is curious and this is a matter I raised with Ms Heath of counsel. Ms Heath's response was very persuasive, I must say. In terms it was suggested to me by Ms Heath that what the plaintiff was really referring to was something different from what Mr McDonald had told her. In other words, the plaintiff was focused upon her belief that it could not be the case that that much money was in the house and belonged to the defendant's mother. I have to say, however, I still have a feeling of unease about it as it seems to me that the time for disclosing what was disclosed in cross-examination on 7 June at between pp 226 and 230 was long before that when the plaintiff was asked originally about this cash. 96 The defendant suggests I should have some doubt about the plaintiff's version of events. 97 It is at this stage that I return to the promotion of the defendant by the plaintiff as her de facto to obtain the ID 90 fare to Fiji. 98 It is probably not an appropriate judicial approach to say one cancels out the other but I have to say that I have some disquiet about each of the plaintiff and the defendant in respect of their approach to their evidence. If the defendant was willing to let the plaintiff lie and the plaintiff was willing not to tell me about the cash when an occasion clearly called for it, it seems I should approach their versions with some reservation on both sides. 99 I am satisfied that the plaintiff did enter into a de facto relationship with the defendant in about March 1994 when she decided to intermingle her finances with him and firmly make a commitment later that year. It seems to me that the overt commitment to that relationship occurred in late 1994 when the plaintiff decided to sell her home as evidenced in the conversation with Mrs Ford. I am of the view that the plaintiff must have been of the view that she was willing to take the extra step in about April, May 1994 when the parties decided to purchase 117 Holt Road. 100 I have taken into account the very helpful submissions of the plaintiff's counsel and notwithstanding the detail of the nature of the relationship between the two parties during the period prior to May 1994, the separateness of their lives in important respects including keeping their premises separate, keeping their finances separate from each other until 1994 leads me to the conclusion that the relationship was not a de facto relationship until April 1994. S.17 of the Act 101 It is therefore important to assess what it is that I am to do, having regard to the prohibition in s 17 (1). It is obvious that the plaintiff has made a very large contribution, both financial and non-financial, to the property and the financial resources of the partnership. It is obvious also that she has made a contribution as a homemaker. Equally I am satisfied that the defendant has made similar contributions, to which I will refer. 102 A debate has raged as to what I may take into account in the circumstances of a finding under s 17(2)(b)(i) adjusting the interests of partners in the property. This has been the subject of a flurry of submissions this morning because Mr Todd conceded yesterday afternoon that I could take pre de facto relationship matters into account. This morning he submitted that I could not. He based this submission on what Powell J said in Roy v Sturgeon (1986) 11 Fam LR 271 particularly at 278; "I conclude, therefore, that contrary to the approach taken by the Family Court of Australia to applications under s 79 of the Family Law Act 1975 it is not open to this Court, when dealing with applications under s 20 of the Act, to have regard to 'contributions' said to have been made prior to the commencement of the particular 'de facto relationship'. There is, I believe, no injustice in this for it would still remain open to a 'de facto partner' to rely on prior contributions as supporting a claim under the general law." 103 His Honour also revisited this approach in Theodoropoulos v Theodosiou (1994-95) 19 Fam LR at 632. In that case there was a reliance on a relationship that had commenced prior to the enactment of the De Facto Relationships Act 1984 and his Honour was very firm in his rejection of the entitlement to consider matters prior to the commencement of the Act. But his Honour also said at 643: "As I sought to point out in Roy v Sturgeon the provisions of s 20 of the Act differ markedly from the provisions of the Family Law Act 1975 (Cth) upon which the Family Court of Australia has relied when dealing with applications for settlement of property under s 79(4) of the Act… and the similar provisions (in the English Statutes)… upon which the judges of the Family Division of the High Court of Justice in England… have relied as a justification for having regard to any pre-marital cohabitation between the parties to an application for a property settlement under the provision of the relevant Act. 104 Ms Heath relies on Griffiths v Brodigan (1995-96) 20 Fam LR in which Chisholm J made an assessment of Powell JA's interpretation of the Act. He took a different view. He said at 834: "In my view it is open to the Court in a proper case to have regard to contributions of the kind mentioned in s 20 notwithstanding that those contributions might have been made before or after the period of the de facto relationship." 105 He said that he had two reasons for forming that view. The first was that it was not expressly limited in the Act and the second was that it seemed to him it was not possible for the Court to make an order that is just and equitable without having regard to the contributions of the kind mentioned in s 20 which were made at the time when the parties had a relationship but one that could not be characterised as a de facto relationship under the Act. 106 Of course in Roy v Sturgeon Powell JA was dealing with the relationship prior to the decision of the Court of Appeal in Evans v Marmont. The plaintiff relies on Evans v Marmont as suggesting that this realistic and global approach would allow pre-relationship facts to be taken into account. 107 Another feature which may be important it seems to me is the wording of s 15 of the Act which refers to the prerequisite for making an order. Specifically in s 15 (1) (b) of the Act there is a requirement that both parties were residents "for a substantial period of their de facto relationship". Section 15(1)(b)(ii), does not refer to any period. 108 Powell JA was dealing with applications under s 20. Because of my finding this is now an assessment of what adjustments should be made because I am satisfied under s 17 (2) (b) (i). It is difficult to settle this debate particularly when I have regard to Powell JA's enormous experience in this field and his very firm view in respect of this matter. Indeed, it will be recalled that in Theodoropoulos his Honour was extremely concerned at the difference that had arisen in Wallace v Stanford (1995) 19 Fam LR 430 and Dwyer v Kaljo (1992) 27 NSWLR 728 and it was his Honour who suggested that the difference might be cured by Dwyer v Kaljo being re considered, "perhaps by an enlarged bench", which of course is exactly what happened. It is a thorny problem. 109 It seems to me, however, that Evans v Marmont requires me to be realistic and I don't believe it is appropriate for me to ignore the nature of the relationship between the parties and the general contribution they made to each other by way of conserving property and financial resources and by way of homemaking if it occurred prior to the de facto relationship. In all the circumstances of this case I am going to take into account the nature of the relationship of the parties prior to the de facto relationship in reaching my conclusion as to what is just and equitable. It seems to me it would be unrealistic not to look at it. Identification and Valuation of Property 110 Returning to what I must do, it is clear that I have to identify and value the property of the parties as a first step. It is clear at the time of trial there was 155 Holt Road, 117 Holt Road and the money in the bank account which notionally will include a redeposit of the $200,000 paid to Mr McDonald last year. 111 The parties have each instructed independent expert valuers to assist the Court in this regard, Mr O'Neill for the plaintiff and Mr Tseris for the defendant. In respect of 155 Holt Road it is clear if I make a comparison between exhibit 3 and Mr O'Neill's annexure C that Mr McDonald in fact improved that property markedly. It is obvious that his skills as a builder have vastly enhanced that property. 112 The 155 Holt Road property was lived in by the parties from January 1995 and during that period the plaintiff contributed as a homemaker in caring for the defendant and the defendant contributed in caring for the plaintiff. There is no doubt about that. Additionally the family unit that was a result of the cohabitation was nurtured by each of the plaintiff and the defendant. Bree, the plaintiff's daughter, was clearly in a good relationship with her mother and with the defendant. There was no true financial contribution by the plaintiff to that property. The defendant renovated, upgraded and obviously took very good care of 155 Holt Road. It seems there is no issue between the parties that the defendant is apparently somewhat fastidious in his cleanliness, particularly when it comes to the bathroom and it is apparent the way in which he approaches his work is consistent with that fastidiousness. The plaintiff moved in with the defendant, as I say, in January 1995 and used her salary to purchase the household food and goods. The defendant paid for everything else. 113 The property at 33 Griffiths Street was sold in late 1994. The proceeds of that sale were invested in the joint plan to develop 117 Holt Road and the way in which the plaintiff and defendant approached that property is a little different. The defendant concedes that any contribution to 33 Griffiths Street was a fairly conservative contribution by the defendant and on an assessment of it as to what he did to improve that property for obtaining a better sale price is about no more than five per cent. 114 Mr Todd sought to put some evidence before me in respect of the valuation of that property. It was objected to because it was so late in the day and I ruled it was inadmissible in the circumstances of the way the defendant had approached his case and particularly the way the plaintiff had approached her case. The plaintiff has not placed before me any valuation of that property but there is a reference to the sale price achieved in late 1994. 115 The defendant spent at least from May to November 1995 an average of 11 hours a day working on the 117 Holt Road construction either on the site or at home for six days per week. He spent half a day on Sunday but sometimes a little more depending upon what needed to be done. The project of the two storey home and the single storey home was completed in 29 weeks and that seems to have been achieved apparently in circumstances where there was some rainfall. 116 The plaintiff has tendered documents from the Bureau of Meteorology which suggest that from May through to November 1995 there was an average rainfall in May of 6.4 through to 8.5 in September and 3.7 in November. I have been asked to take judicial notice of this document and I have observed it. Such judicial notice has its limitation because I quite frankly do not understand the detail of the document or its consequences. However I am willing to find that there was some rain during the period. That seems to me to be in the defendant's favour because notwithstanding that rain he still was able to achieve the construction of these two homes within a very short period having regard to what has been described by the valuers and the quantity surveyor, as high quality work. It has been suggested to me that to achieve the building of one of those homes in that period might have been difficult. So that is why I said earlier that I have been impressed with the defendant's capacity in his profession or trade. 117 The two valuers, Mr Tseris and Mr O'Neill, have achieved a result that is quite interesting. Mr O'Neill values the house in which the plaintiff lives at 117 Holt Road at $575,000. He values the defendant's house at $635,000. Mr Tseris values the plaintiff's house at $635,000 and the defendant's house at $575,000. Both of the expert valuers in my view tried independently to assist me in respect of the values of these properties. They were willing to give in respect of some of the propositions that were put to them by opposing counsel and it seems to me that both men honestly formed their views and reasonably formed their views with the subjective element that each of them admits must be involved in this process. 118 Ms Heath suggests that Mr O'Neill should be preferred because he used a check method. Mr Tseris explained that the check method should not be something that would convince me that his method was not just as good as Mr O'Neill's. The methods they used were the recent sales. Mr O'Neill used land value and his check method additional to the recent sales. 119 It has been admitted that a ten per cent elasticity is involved in this process and it is also clear that this street in which the properties 117 and 117A are situated is a very popular street, which seems to have increased in value quite markedly in recent times. I am of the view in the circumstances that there has to be some elasticity applied to the valuation of these properties. It seems to me that there are aspects to each of the properties which are attractive and it would really depend upon what the buyer wanted, as each of the experts said. 120 One problem that was identified in 117 was some alleged defects which have been the subject of evidence by Mr Alan Brown who has reached the conclusion in his evidence that the amount required to rectify the defects would be some $17,070. Mr Gleeson, the defendant's expert building consultant, was not required for cross-examination. He produced a report which suggested that a figure required for rectification work was some $5,350. Ms Heath makes a valid point that there are some aspects to Mr Gleeson's report that suggest that he has not attended to the matters with as great a detail as Mr Brown. 121 It seems that there is a problem with the underfloor of the property being damp particularly when it rains and that needs rectification by way of ventilation and perhaps the installation of a pump. 122 It seems to me that Mr Brown's approach in valuing this work is a little high because of the way he has approached it. He prepared his report in support of the plaintiff's complaint to the relevant body about the building aspects of the house. I am of the view it is appropriate to accommodate a reduction on the $17,000. It seems to me, however, that Mr Gleeson's value of $5,000 is a little too low, having regard to the nature of the problem, particularly with the subfloor area and the other matters to which the plaintiff would have to attend if she were the beneficial owner of the property. That figure then leaves me with an assessment of somewhere between $5,000 and $17,000. 123 Mr McDonald's financial contributions to 117 Holt Road is about $100,000 less than the plaintiff's. I do not intend to go into the detail of the contributions made. Ms Heath has very helpfully outlined that in her submissions and it seems to me that it is reasonable to make a general assumption and conclusion that the plaintiff invested $100,000 more than the defendant. However, the defendant's contribution by way of non-financial activity and contribution is far greater than the plaintiff's. 124 The aspects of the defendant's contribution have been quantified by a quantity surveyor. That quantity surveyor gave evidence and he was cross-examined about his report. That was Mr Stephen Batger who concluded relevantly that the figure that he would apply in the circumstances to the work done by Mr McDonald in constructing the two properties at 117 Holt was about $75,000. He broke that figure down between labour costs and hours at 117 and labour costs and hours at 117A. At 117 his figure was $44,380 and at 117A, $31,040. It had been broken up as to 1266 hours at 117 and 860 hours at 117A. 125 His methodology was that he actually constructed these premises on the basis of what he regarded as reasonable and then applied what could be described as a test check of looking at Mr McDonald's work statement and diary. Mr McDonald's work statement and diary are not in evidence before me, although they have been referred to in the cross-examination. It is apparent that the defendant spent many hours. Mr McDonald suggests that the hours that have been assessed by Mr Batger may be somewhat low and the figure used to assess his hourly rate may also be a little low. Mr McDonald had adopted the hourly rate last year when he obtained his judgment in June to have the $200,000 paid out of the joint account but I am not satisfied that the adoption of that figure is controversial. I think that was a reasonable approach in the circumstances. Mr Batger said: "It is our considered opinion from our inspection of both properties that the workmanship and materials are of a standard consistent with the construction of a high quality dwelling. It is also our considered opinion that thought was given as to the most cost effective method of construction." 126 So it is that it is not merely the assessment of the labour costs and hours spent by Mr McDonald, there is an additional non-financial contribution here that needs to be assessed. Certainly the financial contribution was such that it negatived the need to have a project manager to have someone running the jobs because Mr McDonald was there every day. Additionally it was his assessment of how best to save his and the plaintiff's money in the way he approached the job. So, both in the facets of financial and non-financial contributions I regard Mr McDonald's contribution as at least equivalent to a figure of $60,000. That figure is reached on an assessment of the evidence of the quantity surveyor having regard to some of the features to which Ms Heath took him and her cogent submissions in respect of an approach that might be adopted in respect of it if the Court saw it as a joint venture. 127 I am satisfied that that figure is only a notional figure which is not really telling in respect of what the parties full contributions were to the site. The plaintiff attended the site and she says that she cleaned it and cooked for the workmen and helped with the landscaping and the garden. That, as with most other things in this case, is in issue. 128 The amount of time the defendant claims he spent on the premises is also in issue. The plaintiff suggests that the defendant has inflated the time he spent at the premises. I am very impressed with what the plaintiff and the defendant did for each other in their relationship. I am extremely impressed by the defendant in the approach that he took to the project. I have taken the view that it is appropriate in all the circumstances, that it is just and equitable to adjust the parties' interest in this property in a way as follows. Adjustment of Interests 129 The circumstances of the finding that I make include an assessment of the fact that the plaintiff has lived in the premises at 117 Holt Road for the last three years. The defendant suggests an occupancy fee should be taken into account in a notional sense. The plaintiff suggests that the way in which the defendant approaches this matter is not appropriate and has referred me to Bivano v Natoli (1998) DFC 95-207. I do not intend to descend into an assessment of mesne profits and rent in this case. It is clear that the benefit to the plaintiff is a factor which I am going to take into account in assessing and adjusting the parties entitlements in this case. The valuation of the property at 155 Holt and 117 Holt it seems to me should be equally at $600,000. It is too difficult in the circumstances of the evidence to make an accurate assessment without that elasticity. It is not a mathematical equation approach. It is what is just and equitable in taking into account the amount of money as referred to that the plaintiff has contributed, the amount of money that the defendant has contributed, what seem to me to be equal contributions as homemaker in the period that they were in a de facto relationship. It seems to me that a just and equitable result is that the plaintiff is entitled to the beneficial interest in the home at 117 Holt Road Taren Point. 130 The accountants, Mr Benbow and Mr Grahame, adopted different approaches, one on a commercial joint venture basis and one on a domestic de facto relationship basis. 131 The approach adopted by Mr Grahame is that if the Court were to find that Ms Stelzer retains 117 Holt Road, which I have decided should occur, and Mr McDonald retains $200,000 cash withdrawn, that Mr McDonald should pay to Ms Stelzer a figure of $13,131, this is on the basis of a notional return of the 200,000 and the balance of cash in the joint account being $243,000. 132 Mr Benbow's approach is that the 117 Holt Road should be divided equally and that Ms Stelzer should receive $202,000 from the joint account and Mr McDonald $41,401 from the joint account. I am of the view that something between those two approaches is appropriate. In weighing up what is just and equitable it has been difficult to assess what extra should happen, if anything, to adjust the plaintiff's interest, having decided that the plaintiff is entitled to the property at 117 Holt Road. She, of course, applies for $100,000 out of the remaining $243,000. I think that is too much in the circumstances. I regard the contributions and the approach to the project and the shortness of this relationship as a de facto relationship as something I should take into account in reaching the conclusions that I have. 133 Assuming that the value of the property is $600,000, it seems to me that the plaintiff, although contributing equally to the homemaker aspect of 155 Holt Road and not in any meaningful way to the financial side of 155 Holt Road, should have no more than a figure of $25,000 payable out of the joint account. 134 It seems to me that such a figure in addition to an asset worth $635,000 (on the defendant's valuation) would be extremely generous. Indeed it may be thought that such a figure in addition to an asset worth $575,000 (on the plaintiff's valuation) is an appropriate adjustment. However I have placed a value of $600,000 on the property and I regard it in all the circumstances of this case as just and equitable that the plaintiff should have an additional $25,000. 135 Accordingly I will make the orders that the plaintiff is entitled to the beneficial interest in the property at 117 Holt Road Taren Point. 136 I will make an order in the defendant's case that he is entitled to the balance of the joint account including the money already paid to him, less the $25,000 which is to be paid to the plaintiff. 137 The matter is adjourned to enable the parties to bring in short minutes and for any argument as to an appropriate costs order. ********** Last Modified: 06/30/1999 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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