Del Gallo v Frederiksen [1999] NSWSC 737

New South Wales Supreme Court CITATION : Del Gallo v Frederiksen [1999] NSWSC 737 revised - 31/08/99 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 1017/1998 HEARING DATE(S) : 31/05/99 and 01/06/99 Written submissions supplied on 16/06/99 JUDGMENT DATE : 23 July 1999

PARTIES : Christine Del Gallo v Neil Lewis Frederiksen JUDGMENT OF : Master Macready at 1

COUNSEL : D.J. Lloyd for the plaintiff C.M. Simpson for the defendant SOLICITORS : Beilby Poulden Costello for the plaintiff Freda & John F. Newman for the defendant CATCHWORDS : Family Law. Application under the Defacto Relationships Act for adjustment of property interests. Whether contributions made by a party prior to the commencement of the relationship can be taken into account. ; ; Held that such contributions cannot be taken into account. Roy v Sturgeon (1986) 11 NSWLR 454. CASES CITED : Evans v Marmont (1997) 42 NSWLR 70 Griffiths v Brodingham FamLR 822 Foster v Evans (1997) DFC 95-193 DECISION : Para 61

- 2 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER MACREADY

Friday 23 July 1999 1017/1998 CHRISTINE DEL GALLO v NEIL LEWIS FREDERIKSEN

JUDGMENT

1 MASTER: This is an application under the Defacto Relationships 1984 brought by the plaintiff for the adjustment of the parties' property interests. There were no children of the relationship although the plaintiff had two children by a former marriage. 2 The parties are agreed that that they had a defacto relationship from late January 1993 until 30 January 1996. At that time they resided in the defendant's house which had recently been reconstructed at North Curl Curl. The parties first met in September 1989 after which they began staying and sleeping at each others homes particularly on weekends. The plaintiff contends that the defacto relationship commenced in April 1990 when she says that the parties were living together four to five nights a week admittedly in two houses, namely, the plaintiff's house at 66 Duncan Street, Maroubra and the defendant's house at North Curl Curl. 3 The defendant denies there was a defacto relationship until January 1993. The matter is of some moment as the major part of the plaintiff's contributions took place between early 1991 and January 1993 when the parties demolished the building on in North Curl Curl and built a new house which they occupied in January 1993. 4 In order to put the matter in perspective it is necessary to look at some of the chronology in the matter. The plaintiff was born in 1956 and is now aged 43 years. She has two children, Katie born 11 June 1981 and John born 13 August 1983. In April 1990 Katie would have been 8 years of age and John 6 years of age. Accordingly there is little possibility of either child giving appropriate evidence as to the disputed period of the defacto relationship given their ages. 5 In 1990 the parties commenced going out together and slept at each other's home at weekends. In April 1990 the plaintiff says that a regular pattern of residence emerged in which she says that the defendant spent Thursday, Friday and Saturday and each second Monday evening at the plaintiff's Maroubra home while she spent Sunday night at the defendant's home. The defendant for his part asserts that he spent Monday or Thursday or Friday night and occasionally more than one night at the plaintiff's home. He agrees that the plaintiff and her children would often stay on Sunday night at his home. 6 On 7 May 1990 the plaintiff mortgaged her home at 66 Duncan Street, Maroubra for $50,000 for three years and the funds were used to discharge a liability which she had to her sister. She had previously acquired the property by buying out her husband's interest in it and to do this she needed assistance from both her sister and her father who gave that assistance. 7 On 2 February 1991 the defendant moved from his home in North Curl Curl to the nearby property 26A Surf Road which he had leased. This was to facilitate the demolition of the property in North Curl Curl which demolition appears to have commenced in July 1991 and continued for about seven weeks. The plaintiff and the defendant as well as others were involved in the demolition and the extent of the individual contributions is a matter to which I will return later in this judgment. 8 In October 1991 work started on the building of the new home in North Curl Curl. The parties had been involved in drawing up plans and obtaining their approval. At this stage the plaintiff had started making payment for various amounts incurred by the defendant in the work. She paid bills amounting to $52,432.37 and according to her she was reimbursed by the defendant as to the sum of $50,327. The home, of course, cost more than this and the balance of the funds were supplied by the defendant. The actual building cost was $140,000. 9 Both parties worked on the construction of the new house together with subcontractors and numerous friends of the defendant. 10 By April 1992 the defendant was able to move back into the partly completed residence in North Curl Curl and in January 1993 the plaintiff and her children moved into North Curl Curl and commenced to live with the defendant. Thereafter there was work done by the parties in finishing the premises. At this stage the plaintiff let her premises at 55 Duncan Street, Maroubra, initially at $333. From time to time thereafter she would repay her father sums which owed him and in May 1993 the plaintiff discharged the mortgage for $50,000 which she had earlier taken out. Some assistance was provided by her father who advanced somewhere between $5,000 and $10,000 to enable this to happen. The plaintiff also received an inheritance of $15,000 which may also have been used. In January 1994 the rent for the plaintiff's premises at 66 Duncan Street was increased to $380 per week. 11 In November 1994 the parties occupied separate bedrooms at the home and this continued until Easter 1995. On 10 March 1995 the plaintiff sold her house at Maroubra for $388,000. There is evidence of some assistance by the defendant in making the residence ready for sale. On 30 June 1995 the plaintiff purchased another property at North Curl Curl for $335,000. On 14 July 1995 she rented it out for $400 per week. 12 On 16 January 1996 the plaintiff and her children left North Curl Curl and took up residence in her property at North Curl Curl. 13 The question of whether or not the plaintiff and the defendant were living together as husband and wife on a bona fide domestic basis must be determined in accordance with the principles referred to by the Court of Appeal in Light v. Anderson & Ors (1992) D.F.C. 95 120. They referred to the decision of Mr. Justice Kearney in Simonis v. Perpetual Trustee Co. Limited (1987) 21 N.S.W.L.R. 677 where His Honour in dealing with the expression in the Act after reviewing the authorities said at page 685 the following: "I consider that the expression under consideration constitutes a single composite expression of a comprehensive notion or concept, and therefore has to be approached by considering the expression as a whole and not in several parts. This approach, as adopted by Powell J, was also the approach preferred by the Administrative Appeals Tribunal in Waterford's case (see 106). I consider that the factors referred to by Powell J, while not being regarded as a complete test, serve the purpose adequately in the present case to determine the question of eligible person. The factors indicated by Powell J are as follows (at 459): "1 the duration of the relationship; 2. the nature and extent of the common residence; 3. whether or not a sexual relationship existed; 4. the degree of financial interdependence, and any arrangements for support, between or by the parties; 5. the ownership, use and acquisition of property; 6. the procreation of children; 7. the care and support of children; 8. the performance of household duties; 9. the degree of mutual commitment and mutual support; 10. reputation and 'public' aspects of the relationship." His Honour also referred to the support to be gained for this approach from the report of the New South Wales Law Reform Commission concerning de facto relationships (LRC 36 (1983)). His Honour quoted the following passage in the report (at 459): "17.10. The application of the basic definition to the myriad facets of private personal relationships between men and women will inevitably be a matter of degree and proportion. The attributes and circumstances of such relationships differ greatly, ranging from what is little more than a casual liaison, to a continuing affectionate companionship, to a long term merging of lives and resources. Moreover, the nature and quality of a particular relationship may change and develop over time, making it sometimes very difficult to pin-point a time when the relationship should assume a new legal significance." As I understand it, the parties substantially treated Powell J's approach as being appropriate to the circumstances of the present case." 14 Obviously, the list is not immutable and in particular cases other factors will have to be considered. The list is of use and it is convenient to discuss many of the incidents of the relationship between the plaintiff and the defendant under the headings set out above. 1. The duration of the relationship 15 The overall relationship was of a little under six years.