Berg v Mullins [1999] NSWSC 451

New South Wales Supreme Court CITATION : Berg v Mullins [1999] NSWSC 451 CURRENT JURISDICTION : Equity FILE NUMBER(S) : 2678/96 HEARING DATE(S) : 29 and 30 March 1999 JUDGMENT DATE : 17 May 1999

PARTIES : Valerie Berg v Vincent Aloysius Mullins JUDGMENT OF : Master Macready at 1

COUNSEL : Ms R. Druitt for the plaintiff Defendant in person SOLICITORS : Harman & Co, Penrith, for the plaintiff CATCHWORDS : Family Law. Application under Defacto Relationships Act 1984 for adjustment of parties' property interests. Order for adjustment made. No matter of principle. DECISION : Para 57

4 IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER MACREADY

Monday 17 May 1999

2678/96 VALERIE BERG v VINCENT ALOYSIUS MULLINS

JUDGMENT

1 MASTER MACREADY: These proceedings under the Defacto Relationships Act were commenced in the Local Court at Penrith on or about 11 June 1996. On 20 June 1996 the proceedings were transferred to the Supreme Court. The plaintiff has filed an amended Statement of Claim in the proceedings which in addition to a claim under the Defacto Relationships Act brings a claim against the defendant based upon a constructive trust in respect of a property registered in the defendant's name, known as 5 Rodova Street, Katoomba. A Judge of this Court has referred all matters in the proceedings to a Master for his determination. 2 The parties in this matter are at issue as to whether there was a defacto relationship and indeed give quite different accounts of most of the matters in issue. There was no child born of the relationship between the plaintiff and the defendant. 3 It is useful to note a little of the history before coming to the matter in more detail. The plaintiff is 69 years having been born on 23 July 1929. She is a retired Nursing Sister. In 1968 she first met the defendant. The plaintiff was divorced in 1964 and was residing with her two children, Andrew and Juliet, at Etham Avenue, Darling Point. The defendant was then residing with his mother and two spinster sisters in Double Bay. According to the plaintiff a sexual relationship commenced about three months after they met and this does not seem to be disputed by defendant. The defendant was then employed by the New South Wales Sheriff's Office at Waverley Court House. In 1970 the plaintiff became pregnant and miscarried at about 14 weeks. According to the plaintiff the defendant was the father. In 1971 the plaintiff moved to New South Head Road, Rose Bay and rented a unit in her name. 4 In due course between 1971 and 1973 the defendant's mother died and the unit at Double Bay was sold. The plaintiff's children went to live with their father and in due course the plaintiff resigned from her employment with the Red Cross Sydney Blood Bank. The parties then travelled by ship on a number of trips including to North America and Japan. On return in 1974 the plaintiff rented another property at 22 Cooper Street, Double Bay and resumed her employment with the Red Cross. The defendant resumed his employment with the Sheriff's Office. The parties apparently maintained separate residences and in 1978 the defendant went to live in a boarding house in Rose Bay. In 1984 the parties either took leave or resigned their employment and travelled again to Europe for about five months. In 1985 the defendant returned to Sydney for an operation on his foot and the plaintiff remained in London for a period of about three months. However, when the plaintiff returned in April/May 1985 she took accommodation in a private hotel and the parties resumed their relationship but not sharing accommodation together. On her return the plaintiff did not return to employment but obtained a Widow's Pension. Between 1985 and 1987 the plaintiff received $26,000 from the estate of her mother and in 1988 the defendant retired from his employment by first taking a year of his long service leave on half pay. 5 In 1989 or 1990 a property was located which was for sale at 5 Rodova Street, Katoomba. The property was purchased in the name of the defendant in the sum of $110,000. It was furnished and the purchase price was paid by the defendant out of his superannuation monies. Both parties moved into Katoomba in February 1990. In late 1992 there was a further trip by the plaintiff and the defendant when they travelled to Europe for some months. Prior to this, during the winter of 1991, there had been a falling out between the parties and the plaintiff moved out from Katoomba for a period she says was about three months. In September 1992 the defendant made a will in which he left the whole of his property to the plaintiff. In May 1996 the defendant put in hand steps to arrange for the sale of the Katoomba property. Relations between the parties had deteriorated substantially and on 11 June 1996 the Local Court at Penrith made the following orders:- "5. That pending further order, the applicant be declared to have a right of occupancy in the property situate at and known as 5 Rodova Street, Katoomba. 6. That pending further order, the respondent be restrained from selling, transferring or disposing of the property situate at and known as 5 Rodova Street, Katoomba. 7. That pending further order, the respondent be restrained from selling, transferring or disposing of any furniture or chattels contained within the property situate at and known as 5 Rodova Street, Katoomba. 8. That pending further order, the respondent be restrained from encumbering in any way whatsoever the property situate at and known as 5 Rodova Street, Katoomba. 9. That pending further order, the respondent be restrained from assaulting, molesting, harassing, threatening or otherwise interfering with the applicant. 10 That pending further order, the respondent be restrained from disposing of funds held in the name of Vincent Aloysius Mullins with Westpac, Sydney Office, 341 George Street, Sydney, BSB 732-000 Account number 51-3125." 6 Immediately after the making of these orders the defendant vacated the property and has since lived in the Goulburn area. The plaintiff has remained in the property. 7 As at June 1986 the only assets of the parties appear to be the property at Katoomba which the plaintiff estimates has a value of $180,000 and the defendant estimates has a value of about $150,000 to $160,000. There is no sworn evidence as to value. There are items of furniture and personal effects and a Chrysler motor vehicle which is at present parked in a railway yard at Moss Vale. Each of the parties are on a pension. 8 In the proceedings before me the plaintiff was represented by counsel and the defendant appeared in person. The plaintiff's material included information that suggested that the defendant had a severe drinking problems and had on occasions, during the time the parties were at Katoomba, consulted a psychiatrist for some treatment for which he was prescribed an anti-depressant, Zoloft. There was also evidence from the plaintiff suggesting that in the latter part of the period when the parties lived at Katoomba the defendant held out to others that he was a Secret Service operative and appeared to be deluded. Certainly in the witness box before me the defendant maintained that he had signed the Official Secrets Act and was not able to answer any questions about that matter. 9 The plaintiff's position was that the defendant had appropriate capacity to act for himself and it appeared to me that this was so. In particular the following became clear to me as the trial proceeded 10 1. The defendant adequately understood the concept of a defacto relationship and was able to articulate and cross examine on the differences between that and a relationship of a lesser nature. 11 2. The defendant was quite capable of cross examining witnesses, insisting on correct answers and noting immediately when a witness was avoiding, for example, the purport of a question. 12 3. The defendant was able to make submissions on the appropriate inferences to be drawn from documents and put appropriate matters in support of these arguments. 13 4. When matters were explained to him the defendant could appreciate the need sometimes to change from the stance he had taken given that a change might benefit his case. 14 5. The defendant suffered from a hearing defect which at times made the evidence difficult in that he would not hear an answer from the plaintiff when cross examining her. However, this was not a sufficient disability to cause concern. 15 In summary it appears to me that the defendant was quite capable of understanding the nature of the case, issues involved and was able to conduct his defence. 16 The principal dispute is of course the question of whether or not the plaintiff and the defendant were living together as husband and wife on a bona fide domestic basis. That question must be determined in accordance with the principles recently referred to by the Court of Appeal in Light v Anderson & Ors (1992) DFC 95120. They referred with approval to the decision of Mr Justice Kearney in Simonis v Perpetual Trustee Co Limited (1987) 21 NSWLR 677 where his Honour in dealing with the similar expression in the Family Provision Act 1982 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."