Supresencia v Powell [2002] NSWSC 773

Reported Decision : (2002) DFC 95-261

New South Wales Supreme Court

CITATION : Supresencia v Powell [2002] NSWSC 773 FILE NUMBER(S) : SC 3991/01 HEARING DATE(S) : 20/08/02,21/08/02 JUDGMENT DATE : 30 August 2002

PARTIES : Nenita Sabrin Supresencia (Plaintiff) Murray Norman Powell (Defendant) JUDGMENT OF : Acting Master Berecry

COUNSEL : T Hodgson (Plaintiff) M Bridger (Defendant) SOLICITORS : Keddies Solicitors (Plaintiff) Jack Rigg (Defendant) CATCHWORDS : Lengthy relationship - nature of contributions - no financial contributions by plaintiff - significant non financial contributions - parenting and homemaker role - nature of assets - broad definition of property - maintenance - factors determining an application - extent of courses or programmes. LEGISLATION CITED : Property (Relationships) Act 1984 Spencer v the Commonwealth (1907) 5 CLR at 418 The Marriage of R & E Shaw 12 FamLR 806 The Marriage of Antmann (1980) 6 FamLR 560 at 565 CASES CITED : Wallace v Stanford (unreported Court of Appeal 9 December 1994) Marriage of Rolfe (1978) 25 ALR at 219, Mallet v Mallet 156 CLR 605 at 636 Evans v Marmont (1997) 42 NSWLR 70 DECISION : See para 44.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BERECRY AM

30 August 2002

3991/01 – Nenita Sabrian SUPRESENCIA v Murray Norman POWELL

JUDGMENT 1 MASTER: The plaintiff commenced proceedings under the Property (Relationships) Act 1984 seeking an order adjusting the interest of the parties with respect to property and for provision for maintenance. 2 It is not in issue that the parties lived in a de facto relationship. The relationship commenced in 1980 and continued, with the exception of one break, until 31 May 2001. In 1983 the defendant left the plaintiff for a period of approximately six months, thereafter cohabitation resumed. It is not seriously in issue that the relevant period, for the purpose of this application, is the total of the two periods, namely 1980-1983 and 1984-2001. 3 The plaintiff was born on 13 May 1956, she is currently forty six years of age. The defendant was born on 16 May 1925 and is currently seventy seven years of age. The parties met in the Philippines, the plaintiff being a citizen of that country, in 1980. Her evidence is that she worked in a bar which was run by her aunt. It was in this establishment that the defendant met the plaintiff. At that time the defendant was living permanently in the Philippines, he owned an apartment and had investments in that country. Shortly after they met, they began living in a de facto relationship. 4 Upon the commencement of the relationship the plaintiff ceased to work. The defendant was not in the workforce and had not worked since approximately 1970, he relied solely on his investments. It is the plaintiff's evidence that the defendant wished her to cease work and look after him. The apartment that he owned was part of a converted motel. Their apartment consisted of a bedroom, a lounge/dining room area, kitchen and although there was no evidence of this, I assume bathroom and toilet facilities. 5 The evidence is that the parties had a reasonable standard of living in the Philippines. The defendant's evidence is that they ate out at restaurants on a regular basis, he had a motor vehicle, he was able to provide overseas holidays and they were able to do things that Philippinos with money are able to enjoy. During their time in the Philippines, they had maids to assist them with their domestic chores. There were at times three maids, but generally two maids one of whom was a live-in. Although the accommodation was restricted and they ate out on a regular basis, it seems that there were still things for a maid to do. 6 Shortly after the relationship commenced, the plaintiff fell pregnant. On 3 October 1981 their son Thomas was born. The plaintiff's evidence is that she looked after the day-to-day needs of both the plaintiff and the child. She provided the role of a carer. She prepared meals, did the washing and helped clean the unit. She readily conceded that the maids also assisted with these functions. The defendant, whilst conceding that he performed no tasks of a domestic nature, was reluctant to concede that the plaintiff played any significant role as a carer for either himself or the child, however, reluctantly he did admit that she performed these functions although with the qualification that she was assisted by maids. 7 The relationship broke down in 1983 when Thomas was a little over twelve months old. The evidence is not terribly clear but it seems that the defendant formed a view that the plaintiff wanted to have the son euthanased. The defendant's evidence was that Thomas had been ill on a number of occasions and it was the defendant and one of the maids who took him to either the hospital or the doctor. On one occasion he says the plaintiff said words to the effect that "Thomas is no good, have the doctor given him a needle." The defendant's evidence is that he took that to mean that she wanted the child's life terminated. He says he became concerned about this and wanted to take steps to remove the child from the plaintiff. His evidence in relation to this matter was unconvincing and inconsistent. Having formed an opinion that the plaintiff may do harm to the son, he did not contact the Philippino Police. What he did was to leave the Philippines. He flew to Sydney where he spent two months and then from there he went to Samoa. His evidence was that the purpose of going to Samoa was to secure a wife so that he could take her back to the Philippines whereupon an application would be made to the relevant Philippino agency for custody of Thomas. However, the marriage in Samoa lasted six weeks. I have grave doubts whether there was ever the intention that the defendant attributed to his actions. On returning to the Philippines, he resumed cohabitation with the plaintiff. 8 His affidavit evidence contradicts the evidence given in the witness box. In para 20 of his affidavit of 14 May 2002 the plaintiff states as follows:- "Whilst I lived in Manila I was very concerned for Thomas' safety. Kidnapping children was not a rare event. For that reason I ensured that Thomas was always carefully supervised either by the plaintiff and me or by the household staff".