Reported Decision : (2002) DFC 95-248 New South Wales Supreme Court CITATION : Sullman v Sullman [2002] NSWSC 169 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 5016/99 HEARING DATE(S) : 29/1/02-4/2/02, 6/2/02-8/2/02 JUDGMENT DATE : 27 March 2002 PARTIES : Penelope Ann Sullman (plaintiff; cross-defendant) Michael John Sullman (defendant; cross-claimant) JUDGMENT OF : Campbell J COUNSEL : D E Grieve QC (plaintiff; cross-defendant) R C Lethbridge SC; with N Jackson (defendant; cross-claimant) SOLICITORS : M C Griffith & Co (plaintiff; cross-defendant) Hunt & Hunt (defendant; cross-claimant) CATCHWORDS : FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS - construction of section 20 Property (Relationships) Act 1984 application of transitional provisions for 1999 amendments - whether contributions after end of relationship can be taken into account - whether financial contributions can be taken into account under section 20(1)(b) - meaning of "just and equitable" - EVIDENCE - no Jones v Dunkell inference available where witness not called is a solicitor and solicitor giving evidence would involve waiver of legal professional privilege - EVIDENCE - effect of failure to cross-examine - PERSONAL PROPERTY - ownership and possession - title to motor vehicle Property (Relationships) Act 1984 Child Support (Registration and Collection) Act 1988 (Cth) Property (Relationships) Legislation Amendment Act 1999 LEGISLATION CITED : De Facto Relationships Act 1984 Family Law Act 1996 Conveyancing Act 1919 Casino Control Act 1992 Child Support (Assessment) Act 1989 D v McA (1986) 11 Fam LR 214 Roy v Sturgeon (1986) 11 NSWLR 454 Howland v Ellis [2001] NSWCA 465 George v Hibberson [1987] DFC 95-054 Evans v Marmont (1997) 42 NSWLR 70 CASES CITED : Myers v Myers 21 October 1986; (1987) DFC 95-056 Stephenson v State Bank of New South Wales Ltd (1996) 39 NSWLR 101 Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 Hibberson v George (1989) 12 Fam LR 725 Nguyen v Schieff [2002] NSWSC 151 Paric v John Holland (Constructions) Pty Ltd [1984] 2 NSWLR 505 DECISION : Application for adjustment of property interests refused. Declaration of proportionate beneficial interests in motor vehicle. THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EQUITY LIST CAMPBELL J 27 March 2002 5016/99 PENELOPE ANN SULLMAN v MICHAEL JOHN SULLMAN JUDGMENT HIS HONOUR: Nature of the Claims 1 Michael and Penelope Sullman were married, and had four children. They separated, and in 1993 were divorced. At the time of the divorce, Mr Sullman agreed to transfer the family home to Mrs Sullman, and to undertake some obligations for the maintenance of the children. 2 After the divorce, each of them lived in a relationship with a new person. However, neither of those relationships worked out. In November 1995 Mr Sullman came to live, with his former wife and their children, at the family home. He says that after he came back he and Mrs Sullman lived in a de facto relationship. 3 By, at the latest, August 1999 that relationship was over. However, during the period from November 1995 to August 1999 Mr Sullman says that he spent very large sums of money for the benefit of the family. He says that in consequence, his assets were very seriously depleted. He says that at the start of the relationship his financial position was better than that of Mrs Sullman, but that now his financial position is much worse than that of Mrs Sullman. He seeks an order under section 20 of the Property (Relationships) Act 1984 for an adjustment of the interests of Mr and Mrs Sullman in property. 4 Mrs Sullman seeks a declaration that a Toyota Landcruiser motor vehicle, which is registered in Mr Sullman's name, is her property, and an order that he transfer the vehicle to her. Background to the Resumption of Cohabitation 5 Mr Sullman was born on 2 March 1944. Mrs Sullman was born on 7 September 1952. They married, in England, in January 1979. They had four children – James, born March 1981, Elizabeth, born March 1983, Christopher, born October 1986, and Edward, born April 1989. 6 At the time of their marriage they were both English citizens and lived in England. Mr Sullman had business interests in the insurance industry. 7 In January 1988 the family moved to Australia. Mr Sullman had obtained employment with Lend Lease, and Lend Lease acted as sponsors of the family for immigration purposes. 8 In about July 1988 Mr Sullman sold his interests in the insurance business in England for around A$6 million. At the time, he told his wife: "I am going to set up a trust in Guernsey. I am going to call it the Fitzjohn Trust with you and the children as beneficiaries. With the amount of interest it will be earning and my salary we will not even need to touch the capital, we should be earning about $24,000 per week". 9 In March 1991 Mr and Mrs Sullman purchased, in their joint names, a property at 8 Lane Cove Road Ingleside, a suburb immediately inland from Mona Vale. The vendor of that property was moving to England, so the purchase price was paid in sterling. That purchase price was £800,000, and came from the Guernsey account. At the then rate of exchange, this amounted to approximately $2 million Ex D5, p.237. 10 In the latter part of 1991 (one piece of evidence says September, another November) Mr and Mrs Sullman separated. 11 Miss Elaine Sullivan had been Mr Sullman's secretary before the Sullman family moved to Australia. On 7 July 1992 Miss Sullivan had a son, Lawrence, of whom Mr Sullman was the father. 12 On 4 March 1993 the Family Court in Sydney made a decree nisi, dissolving the marriage of Mr and Mrs Sullman. On 30 March 1993 the Family Court made orders, by consent, dealing with the property of Mr and Mrs Sullman. So far as is presently relevant, it made orders which had the effect of transferring to Mrs Sullman the Ingleside property, discharged from any mortgage, all furniture furnishings and contents in that home, and a Toyota Sahara motor vehicle registered number PGY192. The orders also made provision for Mrs Sullman to transfer to Mr Sullman all her rights in a property known as 44 Roundwood Park, Harpenden, Hertfordshire England, all her interests in joint bank accounts whether in the United Kingdom, Channel Islands or Australia, and some debentures in Vital Video Company Limited. There was a declaration that Mr Sullman was the sole owner of the Fitzjohn Trust. 13 Maintenance for the children was dealt with by an Agreement made on 30 March 1993. That Agreement was varied on 8 July 1994, Ex D1 by an Agreement which has not since been varied or contractually discharged. (There is a dispute between the parties as to whether the Agreement has been discharged by operation of law, by reason of Mr Sullman having ceased to be a resident of Australia.) Under it, Mr Sullman agreed to provide: · Periodic support for each child at the rate of $200 per week per child, with that amount being increased proportionately to the increase in the consumer price index from 1 July 1995; · All private school expenses invoiced by the school "in respect of the education of the aforesaid four children at their present school or at such school agreed between the parties or failing agreement by order of the court" · Medical insurance cover identical to the benefits afforded under the medical insurance cover which was provided to employees and their families by the Lend Lease Corporation Limited. 14 The Agreement provided, and both Mr and Mrs Sullman understood, that it applied to each child until that child turned 18. 15 There were early difficulties with payment of amounts for child support. In consequence, on 25 August 1993 the Child Support Agency wrote to Mr Sullman's employer requiring it, under the provisions of the Child Support (Registration and Collection) Act 1988 (Cth), to make deductions from Mr Sullman's salary at the rate of $3,043.75 per month, and remit them to the Agency. When the new maintenance Agreement was entered on 8 July 1994, it was also registered with the Child Support Agency, and Mr Sullman's employer made deductions from his salary, at the rate appropriate under the agreement of 8 July 1994, and remitted them to the Agency. The Agency passed them on to Mrs Sullman. 16 In April 1993 Mrs Sullman married Mr Nicholas Meyer. 17 Mr Meyer and his four children moved into the Ingleside home. 18 Following the making of the consent orders concerning property, the relationship between Mr and Mrs Sullman was fairly friendly. They were able to talk together quite amicably about matters such as the children, Mrs Sullman's financial affairs, and their respective new partners. They met from time to time in connection with Mr Sullman having access to the children, and in connection with activities like the children's sporting events. 19 In December 1994, Mr and Mrs Sullman had lunch, and attended James' prize giving at Shore School. At that time, Mr Sullman said to Mrs Sullman "Elaine is convinced I want to marry you again and that's true. That's what I want.". Mrs Sullman told him the idea was ridiculous. Her perception of the meeting is that Mr Sullman was being flirtatious with her. 20 In 1995 Mr and Mrs Sullman continued to meet each other occasionally, when attending sporting matches or school functions connected with the children. Between late 1994 and November 1995 Mr Sullman said to her on a number of occasions words to the effect that he "wanted to be reconciled with" her. 21 In about June of 1995 Mr and Mrs Sullman met at the home of Mrs Donna Tenukest, a friend of Mrs Sullman. It was not a chance meeting. At the time Mrs Tenukest lived at Neutral Bay, Mr Sullman was living at Turramurra, and Mrs Sullman was living at Ingleside. Mrs Tenukest says that the meeting took place after Mr Sullman rang her, asked her to organise a meeting between him and Mrs Sullman, and said, "I would like to work out where the status of Penny is in her relationship to Nicholas and have a chance to talk with her." That meeting marked the start of Mr and Mrs Sullman meeting each other occasionally for purposes other than the welfare of their children. 22 Prior to August 1995 Mr Sullman had been living in a rented house at North Turramurra with Miss Sullivan and Lawrence. In August 1995 Miss Sullivan and Lawrence left Australia. Mr Sullman paid for their airfares from Australia to England, paid for furniture to be transported to England for them, and provided Miss Sullivan with £21,500 with which to purchase a car. At that time, Mr Sullman also began to pay her maintenance at the rate of £1,000 per month (approximately equivalent to $30,000 per year). His purpose in making this payment was so that Miss Sullivan would not have to work and could stay at home and look after Lawrence until he was old enough to start school. 23 At some stage around August 1995, Mr Sullman told Mrs Sullman that he had split up with Miss Sullivan. He told her that Miss Sullivan hated Australia, was going back to England, and was not coming back. T 222-223 24 Mr and Mrs Sullman met on a couple of occasions at Mr Sullman's home at Turramurra, after Miss Sullivan and Lawrence had moved out. 25 In either late July, or early August of 1995, Mrs Sullman separated from Mr Meyer. At first this was a separation under one roof. The Ingleside property has a downstairs flat, and Mr Meyer and his children moved to live in that flat. 26 Mr Meyer took the stance that he would not move out until he was paid money. Mrs Sullman swore, in an affidavit on 16 March 2000 for the purpose of some Family Court proceedings, that she said to Mr Sullman "I think that as a result of having to pay Nicholas I will have no alternative but to sell the house and re-establish myself". Mr Sullman said, "I would not want that to happen. I will want to make sure that the children could stay in the home." There was a mediation between Mrs Sullman and Mr Meyer, as a result of which Mrs Sullman agreed, on 2 August 1995, to pay Mr Meyer $130,000. She agreed to pay $125,000 on or before 6 November 1995, and $5,000 within seven days thereafter. Mr Meyer agreed to vacate the property upon payment of the $125,000. 27 In August 1995 Mr and Mrs Sullman made a loan application to MLC Building Society Limited ("MLC"). The amount applied for was $260,000. Mr Sullman explained the amount to Mrs Sullman as including not only the $130,000 for the settlement with Mr Meyer, but also about $40,000 to enable Mrs Sullman to have a new car. He also told Mrs Sullman that he would need about $100,000 to finalise his settlement with Miss Sullivan. 28 The Consent Orders of the Family Court made in March 1993 had made provision for title to the Ingleside house to be vested in Mrs Sullman, and Mr Sullman had executed a transfer of his interest in the house around the time those orders were made. However, that transfer had not been registered by the time application was made to MLC for the loan. Mr Sullman gives evidence that in about August 1995 someone dealing with the loan application at MLC, told him that their searches showed that the house was still registered in joint names. Mr Sullman says that, thereupon, he and Mrs Sullman had a discussion, "MR: We don't have to change the house back into joint names; your lawyers never effected the transfer to your name back in 1993. MRS: Are they going to grant the loan? MR: It looks like it" 29 Mr Sullman says that he relied on that conversation and the home being in joint names to enter the loan with MLC and become a "joint borrower". 30 I do not accept that Mr Sullman relied on those matters. Prior to the mortgage to MLC being registered, the transfer which Mr Sullman had executed in 1993 was registered, so that the title to the Ingleside property was put in the name of Mrs Sullman alone. The mortgage which MLC received was a mortgage granted by Mrs Sullman alone. The application form to MLC (which, on Mr Sullman's account, was executed before searches showed that the house was still registered in joint names) showed the application being made by Mr and Mrs Sullman each in the capacity of borrower, and by Mrs Sullman (alone) in the capacity of property owner. Mr Sullman was willing to become a joint borrower with Mrs Sullman before he discovered that title to the house was still in their joint names. As well, the conversation which Mr Sullman deposes to does not show Mrs Sullman assenting to his proposal that the house not be changed back into joint names, so there is an inherent unlikelihood about Mr Sullman relying on the conversation in entering the loan with MLC. 31 The loan application was granted. On 12 October 1995 settlement was effected on the loan of $260,000 which MLC had made to Mr and Mrs Sullman. 32 In October 1995, Lend Lease and Mr Sullman came to an arrangement under which they would part company. Mr Sullman was not longer required to attend work, but his salary continued to be paid until 3 January 1996. He was offered a termination package consisting of: · one year's salary and fringe benefit budget; · the equivalent of one year's rental subsidy of $800 per week; · "the pay-out of any unvested ESAP units that are held in trust for you" This offer was in addition to his entitlements on termination of employment such as superannuation, accrued leave, employee investment trust and ESAP. (Some type of employees benefit scheme.) 33 On 2 November 1995, Mrs Sullman and Mr Meyer entered a deed to give effect to the settlement arrived at the previous August. In accordance with that deed, $130,000 was paid to Mr Meyer from the proceeds of the loan from MLC. The rest of the borrowed money was paid: · $93,000 to Mr Sullman · $23,824.25 to Mrs Sullman · balance in payment of various legal expenses of Mrs Sullman 34 Mrs Sullman paid the amount of $23,824.25, which she received, into an account which she maintained with the National Australia Bank. On 20 December 1995 she withdrew $12,136 from that account, and gave it to Mr Sullman. She wrote on the bank statement, against the entry relating to this withdrawal, a note "for Mike" at the time. Thus, of the total amount borrowed, Mr Sullman received $105,136, and Mrs Sullman received, or had applied in discharge of her obligations, $154,864. 35 The amount of $93,000, which Mr Sullman initially received, (minus a bank fee of $25) was credited on 13 October 1995 to an account he maintained with the Commonwealth Bank at Miller and Berry Streets North Sydney. Immediately before that credit was effected, the account contained $22.14. On 17 October 1995 an amount of $38,800.94 was debited to that account to fund an international money transfer of £18,500 to Miss Sullivan. There was only one credit to the account between the time of payment in of the proceeds of the MLC loan, and payment out of the amount for Miss Sullivan. That credit was an amount of $5,979.91, for Mr Sullman's pay. It follows that, of the amount sent to Miss Sullivan, $32,798.89 (say $32,800) was the product of the borrowing from MLC. 36 Mr Sullman had been able to pay the balance of the amount he wished to pay to Miss Sullivan by obtaining an overdraft in England. By then, the total amount he wished to pay Miss Sullivan had shrunk to of the order of $80,000. The money he raised on overdraft in England was used to buy Miss Sullivan a new car. FIRST QUESTION - WAS THERE A DE FACTO RELATIONSHIP? The Rival Contentions 37 When Mr Meyer was paid his $125,000 he left the Ingleside property. Mr Sullman moved in very soon thereafter, on 7 November 1995. Mr Sullman alleges that that was the commencement of a de facto relationship. He says that he moved his personal belongings into the property, that he and Mrs Sullman slept in the main bedroom together and they had sexual relations, and that they commenced sharing domestic tasks together such as shopping, cooking, cleaning, eating together and enjoying leisure time together and with the children. Mr Sullman says he began to pay for expenses for the family, including Mrs Sullman's credit card liabilities, that they went out together on outings and holidays, and that they attended social functions together, and some of his work functions. He says that this de facto relationship continued until early August 1999. He accepts that there were periods, between November 1995 and August 1999, when he was not living in the same premises as Mrs Sullman, but says that none of these absences destroyed the existence of a de facto relationship. 38 Mrs Sullman gives a completely different account. She denies that there was ever a de facto relationship between herself and Mr Sullman. She says that the reason why she permitted Mr Sullman to move back was because she was mentally and physically exhausted by the breakdown of her marriage to Mr Meyer. She says that all four of her children were refusing to go on access with Mr Sullman, and that she was concerned by the very poor relationship which existed between Mr Sullman and his children. As well, she says that she hoped that if Mr Sullman was living in the house she would have fewer difficulties with the payment of child support and school fees than she had had in the past. Though she accepts that while at Ingleside, and on various holidays, they slept in the one bed, she denies that there were sexual relations. She says that Mr Sullman did not carry out any domestic tasks, and that eating and having leisure time together with the children was a rarity. She says that going on outings was also a rarity. She says, "All holidays were at the insistence of [Mr Sullman] so that he could see the children and I accompanied them to take care of the children and because the children refused to go unless I went." She says that they attended social functions rarely, and that she attended a small number of work functions because Mr Sullman asked her to, saying that her going would help him. She paints a picture of him, from the time he first moved in, going to the casino "several times a week from about 8.00pm to 2-8am the next morning", of him drinking heavily in the evenings, betting by telephone on horses in Australia and the United Kingdom, and spending much of the day asleep. Mr Sullman's counsel accurately summarises the picture which Mrs Sullman seeks to present of Mr Sullman as being a "boorish drunken wastrel". The Legal Test for the Existence of a De Facto Relationship 39 Section 4 of the Property (Relationships) Act 1984 provides as follows: "(1) For the purposes of this Act, a de facto relationship is a relationship between two adult persons: (a) who live together as a couple, and (b) who are not married to one another or related by family. (2) In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as may be relevant in a particular case: (a) the duration of the relationship, (b) the nature and extent of common residence, (c) whether or not a sexual relationship exists, (d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties, (e) the ownership, use and acquisition of property, (f) the degree of mutual commitment to a shared life, (g) the care and support of children, (h) the performance of household duties, (i) the reputation and public aspects of the relationship. (3) No finding in respect of any of the matters mentioned in subsection (2) (a) (i), or in respect of any combination of them, is to be regarded as necessary for the existence of a de facto relationship, and a court determining whether such a relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case. (4) Except as provided by section 6, a reference in this Act to a party to a de facto relationship includes a reference to a person who, whether before or after the commencement of this subsection, was a party to such a relationship." 40 Section 5 has the effect that a "domestic relationship" includes a de facto relationship. 41 Section 6 says: "(1) This Act (except Part 5) does not apply to or in respect of: (a) a de facto relationship which ceased before the appointed day, or (b) a person in so far as he or she was a party to a de facto relationship referred to in paragraph (a). (2) Without affecting subsection (1), this Act, as amended by the Property (Relationships) Legislation Amendment Act 1999, does not (except for Part 5) apply to or in respect of: (a) a domestic relationship that ceased before the commencement of this subsection, or (b) a person in so far as he or she was a party to a relationship referred to in paragraph (a)." 42 The "appointed day" is 1 July 1985. Any de facto relationship which there might have been between Mr and Mrs Sullman arose well after that day. Thus, section 6(1) does not have the effect of stopping the Act from applying to any such de facto relationship. 43 The definition of "de facto relationship" contained in section 4 is a new definition inserted by the Property (Relationships) Legislation Amendment Act 1999. Sub-section 6(2) was also inserted into the Act by the Property (Relationships) Legislation Amendment Act 1999. The new section 4, and sub-section 6(2) each commenced on 28 June 1999. 44 Prior to 28 June 1999 the Property (Relationships) Act 1984 was known as the De Facto Relationships Act 1984. The De Facto Relationships Act 1984 contained the following definitions in section 3: " de facto partner means: (a) in relation to a man, a woman who is living or has lived with a man as his wife on a bona fide domestic basis although not married to him, and (b) in relation to a woman, a man who is living or has lived with the woman as her husband on a bona fide domestic basis although not married to her. de facto relationship means the relationship between de facto partners, being the relationship of living or having lived together as husband and wife on a boa fide domestic basis although not married to each other." 45 These definitions had been construed by Powell J in D v McA (1986) 11 Fam LR 214, at 227, by saying: "…it seems to me that each case will involve the court making a value judgment having regard to a variety of factors relating to the particular relationship, those factors including, but not being limited to, the following: (a) the duration of the relationship; (b) the nature and extent of common residence; (c) whether or not a sexual relationship existed; (d) the degree of financial interdependence, and any arrangements for support, between or by the parties; (e) the ownership, use and acquisition of property; (f) the procreation of children; (g) the care and support of children; (h) the performance of household duties; (i) the degree of mutual commitment and mutual support; (j) reputation and "public" aspects of the relationship;" (see, eg , In the Marriage of Pavey (1976) 1 Fam LR 11, 358; 25 FLR 450; 10 ALR 259; In the Marriage of Falk (1977) 3 Fam LR 11, 238; [1977] FLC 90-247; Re Fagan (1980) 5 Fam LR 813; Waterford v Director-General of Social Services (1980) 49 FLR 98; Lambe v Director-General of Social Services (1981) 38 ALR 405; Re Semple (1981) 1 SSR 6; Re Tang (1981) 2 SSR 15; Re RC (1981) 3 ALD 334; 4 SSR 36; Re Fergson (1982) 5 SSR 55; Re Tozer (1982) 10 SSR 99; Re Pearce and Director-General of Social Security (1983) 5 ALN No 104; cf In the Marriage of L and L (1984) 9 Fam LR 1033; [1984] FLC 91-563 as to "permanent de facto relationship".)" 46 That analysis has been followed many times (eg Roy v Sturgeon (1986) 11 NSWLR 454 at 458-459). It differs from the definition adopted by the 1999 amending Act only in that the element "the procreation of children" is omitted from the 1999 definition (presumably because the 1999 amendments enabled the definition of "de facto relationship" to extend to a homosexual relationship), and Powell J's phrase "the degree of mutual commitment and mutual support" has been replaced in the 1999 definition by "the degree of mutual commitment to a shared life". These differences are hardly likely to make a difference to any decision about whether or not Mr and Mrs Sullman lived in a de facto relationship. 47 Nonetheless, it is still necessary to identify the correct legal tests to apply when making a decision about whether or not Mr and Mrs Sullman lived in a de facto relationship. The correct way to make that decision, taking into account the changes which were effected by the 1999 legislation, is, first, to see whether there was a domestic relationship within the terms of the amendments effected in 1999, and then decide whether any such domestic relationship had ceased before 28 June 1999. If there was a domestic relationship (within the meaning of the amendments effected in 1999) but it ceased before 28 June 1999, one would then decide whether there was a "de facto relationship" within the meaning of the Act unaffected by the 1999 amendments. Thus, I shall consider first whether there was a "de facto relationship" within the meaning of the Property (Relationships) Act 1984, including the 1999 amendments. I will consider the various elements of the definition one by one, but in a different order to that in which those elements appear in the definition. Paragraph (b) - The Nature and Extent of Common Residence 48 In tracing the nature and extent of common residence of Mr and Mrs Sullman, I shall also outline events in the relationship between Mr Sullman and Miss Sullivan. The existence of Miss Sullivan and Lawrence, and Mr Sullman's ongoing contact with them, are an essential element in evaluating the nature and extent of common residence of Mr and Mrs Sullman, and, ultimately, in deciding whether there was a de facto relationship, and if so, when. 49 When Mr Sullman moved back to the Ingleside property he brought personal possessions, and moved into the main bedroom. He did not retain the North Turramurra property in which he had previously lived. From the beginning of the time he moved back to Ingleside, Mr Sullman did not go out to work. 50 Soon after Christmas 1995 Mr and Mrs Sullman and their children went to the Hyatt Hotel in Coolum, Queensland, for a holiday. 51 By November 1995, Mrs Sullman and her four children had acquired a right of permanent residency in Australia, as a result of her marriage to Mr Meyer. In July of 1998 Mrs Sullman and the four children became Australian citizens. Mr Sullman, however, remained an English citizen. Once his employment with Lend Lease ended, he could no longer stay in Australia on an employer-sponsored visa. This difference in the respective Australian residency rights of Mr and Mrs Sullman cuts two ways as far as the existence of a de facto relationship is concerned. That she, by acquiring a right of permanent residency, and later citizenship, showed an intention to remain in Australia, while he showed no such intention, is one factor which counts against the existence of a de facto relationship. On the other hand, however, Mr Sullman's precarious immigration status provides a reason for periods of separation between Mr and Mrs Sullman, over the time that Mr Sullman asserts a de facto relationship existed. 52 In early January 1996, within days of his employment ending, Mr Sullman took Elizabeth, his daughter, to the UK, and then to Singapore to visit a friend. While in the UK in January 1996, Mr Sullman applied for a further visa to Australia, and was granted a three-month visitor visa. An officer from the Department of Immigration told him: "Don't apply for a further visa once this one has expired because we will not consider a further one for a six month period after you return to England. You need to show that you have re-established yourself in the UK." 53 Mr Sullman returned to Australia on 22 January 1996. He told Mrs Sullman what the immigration officer had told him. Mr Sullman proposed that Mrs Sullman and the children should join him, on a lengthy world trip. Though Mrs Sullman expressed some misgivings about the children missing so much school, and about the cost, she agreed. 54 On 22 April 1996 Mr Sullman returned to the UK. 55 On 1 July 1996 Mrs Sullman and the two younger children arrived in the UK. In August 1996 James and Elizabeth also arrived in the UK. From July 1996 to October 1996 Mr and Mrs Sullman, and the children who were with them at the time, visited the following places: · United Kingdom (including visits to relatives and friends in St Albans, Ringwood, Kent, Harpenden and London, a week when Mr Sullman took Christopher, Edward and Lawrence on a camp while Mrs Sullman visited her parents, and visits to York, Chichester London, and a theme park called Alton Towers) · A one week cruise of the Aegean Sea, visiting Turkey and Greece · USA (including Los Angeles, Las Vegas, Mammoth Lakes, San Francisco and other destinations) · A cruise to Alaska from San Francisco · Canada (including Vancouver, a train trip across the Canadian Rockies to Lake Louise, Banff and Calgary) · Hawaii 56 While in Hawaii, on 4 October 1996, Mr Sullman obtained an Australian visa which lasted until 19 September 2000. The visa itself is not in evidence, but Mr Sullman says that it was a visitor's visa, granted on the condition that he leave Australia every six months. A record from the Department of Immigration and Multicultural Affairs tendered in evidence concerning the visa, shows that the Department somehow came to be of the view that Mr Sullman was married. 57 In the course of this trip Mr Sullman bought various presents for Mrs Sullman – a large black pearl which cost more than US $1,000 (which Mr Sullman said was a gift to her from Elizabeth) and a leather coat. 58 In October 1996 Mrs Sullman and the children returned to Australia. Mr Sullman went to the UK. Miss Sullivan and Lawrence had been living in an apartment in Bransgore House, Bransgore, Hampshire, but as Lawrence became older that apartment was no longer suitable for them. While in the UK in November 1996 Mr Sullman finalised the purchase for them of a house called 'Robin Hill', Melchet Park, Sherfield English, Romsey. The purchase price of that property was around £200,000. Mr Sullman paid all of it, and took title in his own name. Mr Sullman and Miss Sullivan executed a lease on 14 November 1996, which gave Miss Sullivan a tenancy in the property for three years from 1 November 1996. The lease made provision for Miss Sullivan to pay a rent of £7 per month, pay outgoings, and repair the interior. The rent was never actually paid. 59 Mr Sullman explained the purchase of Robin Hill to Mrs Sullman as follows: "MR: The flat is no longer suitable for Lawrence. He needs a garden to play in. I'm going to look for another house for her to live in. She is being a pain in the neck and wants to have a property similar to you. MRS: If you want to do that with her where is the money coming from to purchase this property? MR: This is an asset Penny for us in the future. MRS: What's Elaine's interest in the property? MR: Nothing. I can kick her out at any time." 60 Mr Sullman did not tell Mrs Sullman about the lease that had been entered. This conversation (which was deposed to by Mrs Sullman) is an example of the two of them planning for a future together. 61 In December 1996 Miss Sullivan and Lawrence came to Australia. She flew at her own cost, and stayed with friends while in Sydney. The only occasions when Mr Sullman saw her on this visit was a day when she brought Lawrence to Mona Vale just before Christmas to spend the day with Christopher and Edward, and another occasion just after Christmas 1996 when Mr Sullman collected Lawrence from the place where Miss Sullivan was staying, took Lawrence Christopher and Edward on a day's outing, and returned Lawrence at the end of the day. 62 At some time in 1996 (the evidence does not disclose when, or for how long) Mr Sullman took Lawrence on a holiday to Euro Disney in Paris. Miss Sullivan also went on that holiday. 63 In January 1997, the death occurred of the wife of Mr Sullman's older brother, Brian. Mr and Mrs Sullman went to the UK for the funeral, taking eight days for the trip, and returning on 19 January. No children travelled with them. 64 On 10 July 1997, Mr Sullman returned to the United Kingdom. The conditions of his visitor's visa required him to leave Australia around this time. He spent time in July and the first half of August of 1997 seeking employment in the UK and also attended interviews in Germany and Sweden. 65 On 13 August 1997, in Southampton, Mr Sullman purchased a Llalique statue for £559, and some jewellery (a necklet, bracelet and earrings) for £1,085. Mr Sullman says that each of these was a birthday present for Lawrence to give to his mother. (Lawrence at this time had only recently had his fifth birthday.) Mrs Sullman was not aware of these purchases at the time. 66 After returning to the UK he told Mrs Sullman (still in Australia) that he was going to Las Vegas. He told Mrs Sullman: "I have had a letter from the MGM Grand in Las Vegas offering me free accommodation, as long as I do lots of gambling there. I am very tired and need to rest so I think I will take them up on it." 67 He omitted to mention that Miss Sullivan and Lawrence were going with him, and that Las Vegas was not the only United States destination. The hotel bill for his stay at the MGM Grand Hotel in Las Vegas shows that he arrived on 31 August and departed on 6 September, had one room, and was charged only for tips, taxes, merchandise, movies and 'phone calls – meals and accommodation, were not charged for. The room rate (shown on a subheading on the bill, but not charged for) was US $325 per night. From the fact that tips connected with meals, but not the meals themselves, appear on the hotel bill I would infer that the meals were complimentary. 68 On 15 September 1997 Mr Sullman returned to Australia. On his return, he said to Mrs Sullman, "The only chance I have of getting a job is to go back to England to live". The evidence does not enable me to make a finding about what response Mrs Sullman gave to this piece of information. 69 Soon after that, Mr Sullman arranged for a UK firm to prepare a mail-out to around 100 employment agencies and other employment prospects. That mail-out was sent on 7 October 1997. Mr Sullman had previously made efforts to get a job in Australia. He had sent his curriculum vitae to employment agencies, and had also written to executives at AMP, Zurich, Westpac, Associated Planners, Norwich, and IFMA. However by October 1997 the focus of Mr Sullman's efforts to get a job was the UK. 70 In the first part of November 1997 - that is, after spending six or seven weeks in Australia, and well before his visa required him to leave – Mr Sullman returned to the UK. The evidence does not accurately fix his day of departure. Mr Sullman describes it as "at the beginning of November 1997" Affidavit 21 November 2000, para 39, and "in November 1997" Affidavit 21 November 2001, para 46.4. Mrs Sullman describes it as "in November 1997" Affidavit 14 December 1999, para 20. When Mr Sullman, in cross-examination, had the topic of an event which occurred very soon before his departure introduced to him, it was by the following: "Q. In paragraph 46 of your affidavit of 21 November 2001, which you will find on pages 17 and following you set out your recollection of a conversation which you had with Mrs Donna Tenukest on a morning in early November 1997? A. Yes. Q. That, I suggest to you, was the morning of the day prior to your departure for the United Kingdom? A. That is incorrect, it was on the morning of my departure." Mr Sullman did not take issue with the "early November 1997" date. 71 On 11 November 1997 Mrs Sullman wrote a letter to Mr Parsons, of Pittwater House School, seeking scholarships for her two younger boys. In the course of that letter she said, of Mr Sullman, "He has met these payments up to now but having unsuccessfully tried to obtain a new employer sponsor he has had to leave Australia and return to the UK as his visa expired". Ex CC21 The text of this letter was either composed by, or approved by, Mr Sullman. 72 I regard this as solid evidence that Mr Sullman had left prior to 11 November 1997. 73 The account statement for Mr Sullman's American Express card Ex CC45, page 283 shows a debit at Tony D'Amici's restaurant in Mona Vale attributed to 11 November 1997, followed by a debit in Bahrain attributed to 13 November. The form of the American Express account differentiated between amounts which had been charged using a card issued in the name of Mr Sullman, and amounts which had been charged using a card issued in the name of Mrs Sullman. The entries I have just referred to are in the portion of the account which relates to debits to Mr Sullman's card. However, the evidence does not tell me whether the date attributed to a particular debit is the date when that debit was actually incurred, or the date (possibly later) when that debit was posted to the account. I would not regard these debits to the American Express account as providing a ground for doubting that Mr Sullman had already left by 11 November 1997. 74 Mr Sullman has not tendered any plane tickets or boarding passes, or his passport, to establish with precision the date on which he departed. 75 When Mr Sullman had moved into the Ingleside property in November 1995, he had brought with him a number of suitcases, two double beds and two TVs. Until November 1997 he always left clothing at the property while he was away. When he left in November 1997, he took most of his clothes with him. The beds and the TVs remained at the property. 76 Mr Michael Bailey, a work colleague of Mr Sullman from Lend Lease, gives evidence that "in November 1997" Mr Sullman told him that he had run out of money and was therefore going to England to see if he could get a job there, and that "just prior to going" Mr Bailey went to dinner at the Ingleside home, and a conversation to the following effect took place: MR BAILEY: "Are you going to England Penny?" MRS SULLMAN: "Once Mike has established himself over there and got a job I will go over there to live." MR BAILEY: "Do the children want to go?" MRS SULLMAN: "James and Elizabeth aren't very keen but they'll do what they're told." MR SULLMAN: "I've spoken to James and he refuses to come. I've explained that because of his visa he'd have no choice but he says that the immigration department won't find him." 77 Mrs Sullman denied this conversation in her affidavit. Though I have some reservations about Mr Bailey's affidavit evidence, because the affidavit was composed in the course of perhaps two occasions when Mr Bailey and Mr Sullman met for dinner, and Mr Bailey accepts that Mr Sullman assisted him to formulate the text of the affidavit "a little" T 166 Mr Bailey specifically denied that Mr Sullman had suggested to him the language of the conversation I have just quoted T 167. I accept that a conversation occurred along the lines that Mr Bailey deposed to. Concerning a different conversation in his affidavit, Mr Bailey acknowledged that Mr Sullman had helped him to fix the date T.168. I am not satisfied that it was "in November 1997" that Mr Sullman told him that he had run out of money and was going back to England, or that it was "just prior to going" that the conversation occurred. 78 On the morning of his departure for the UK in November 1997 Mr Sullman met Mrs Tenukest at a coffee shop in Neutral Bay Junction. Mrs Tenukest had rung him to request the meeting. Mrs Sullman had told Mrs Tenukest that Mr Sullman was returning to England to look for work, and had expressed concern to Mrs Tenukest that he had made no financial arrangements for her and the children. Without any specific request from Mrs Sullman, Mrs Tenukest took it upon herself to arrange the meeting with Mr Sullman. Mr Sullman gave evidence: "Q. During this conversation that you had with her early in November 1997 according to your recollection she interrogated you about whether or not you intended to resume your relationship with your second wife Elaine Sullivan, is that right? A. Yes. Q. And it was obvious from what she said to you, according to your recollection of the conversation, that she was conveying to you your first wife Penny's suspicion that you had such an intention, that is of resuming your relationship with your second wife Elaine, wasn't it? A. That is what she conveyed, yes." T.111 79 As well, Mrs Tenukest asked Mr Sullman what he had done about making financial arrangements for Mrs Sullman and the children. Mr Sullman told her that Mrs Sullman had the use of a credit card, but that he had no immediate source of income, so he could not organise anything. 80 Mrs Tenukest also gives evidence that Mr Sullman said, at that meeting, that he "had always maintained his relationship with Elaine", that Elaine was his "life partner and he had no intentions of resuming his relationship with Penny. He had never given her any reason to think that he was resuming his relationship with her." Affidavit Tenukest, para 12 In cross-examination Mrs Tenukest gave evidence as follows: "A. I said words to Mike to the effect that "I'm just - I feel that you're abandoning Penny and the children and that you have never been honest in your commitment back, you know, into the family or the relationship." T.392 Q. Did he speak to you about any other matter concerning any relationship? A. Yes. When I asked him about the fact that I felt that he hadn't emotionally committed himself back into the family or to Penny he said to me, you know, words to the effect, "You know that's not where my heart is anyway" and then a conversation briefly ensued about his longstanding relationship with Miss Sullivan. Q. Well, ma'am, he had a relationship with Miss Sullivan, didn't he, because they had a child? OBJECTION. Q. Ma'am, I want to suggest to you that the issue of a longstanding relationship with Ms Sullivan doesn't accurately reflect anything that Mr Sullman said? A. Yes, he spoke to me about the relationship in contemporaneous fashion, he didn't speak about it as if she was a long lost love or-- Q. What did he say, doing the best you can? A. Doing the best I can I challenged him on the basis that I didn't feel that he had ever been bona fide in his - in what he had said was his motivation of coming back in the home. He said to me, words to the effect, "Well, you know, Donna, where my heart lies and, you know, I have respect and empathy for Penny as the mother of my children, however, my heart lies with, you know, Elaine Sullivan." Q. I want to suggest to you that that wasn't said at that time? A. That was said and that's what actually caused me to be, you know, to be most emotional during that meeting. Q. Did you report this back to Mrs Sullman? A. Yes, I did." 81 In my view it is probable that a conversation along the lines to which Mrs Tenukest deposes, took place. Mrs Tenukest strikes me as a person who would not hesitate to have the sort of blunt and direct conversation that she deposes to, if she thought her friend was about to be abandoned. Her evidence needs to be considered with some care, given that she had cast herself into the role of Mrs Sullman's advocate and protector in this meeting, and also in connection with some events in July 1999 which I shall mention later. However, I do not regard that as a reason for rejecting her evidence. The question of whether Mr Sullman intended to resume a relationship with Miss Sullivan, when he returned to England, was one which would readily occur to anyone who was familiar with the family history, as Mrs Tenukest was. Mr Sullman accepts that the topic of his intentions concerning Miss Sullivan was raised in the discussion. He gives a very different account of the conversation to that which Mrs Tenukest gives Affidavit 21.11.01, para 46.4. His version includes his responding to Mrs Tenukest's enquiry about whether Mrs Sullman had enough money, by saying that she had three credit cards she could use. I do not accept that Mrs Sullman in fact had three credit cards that she could use. Thus, either he was making an inaccurate statement to Mrs Tenukest in this respect, or his evidence on this topic is incorrect. Mr Sullman's account also attributed to Mrs Tenukest an offer to lend Mr Sullman some money. It strikes me as improbable that Mrs Tenukest made any such offer. These matters, together with my general view that Mr Sullman is not completely satisfactory as a witness, lead me to prefer Mrs Tenukest's account of the conversation. 82 In late November or early December 1997 Mrs Sullman decided to sell the Ingleside property. In May 1997 Mr Sullman had established a periodical debit authority, which enabled $2,000 to be debited to Mr and Mrs Sullman's joint account with the ANZ Bank at the end of each month, and paid to the mortgagee of the Ingleside property. The payment due at the end of October 1997 was dishonoured. The payment due at the end of November 1997 was likewise dishonoured. The NRMA Building Society (which had taken over the MLC mortgage business) threatened to take enforcement action. Mrs Sullman applied to the NRMA Building Society for a bridging loan. Eventually the NRMA Building Society approved a bridging loan of $30,000, on condition that the arrears were paid from the proceeds of sale. This bridging loan was drawn down in March 1998. By then, the regular payments of the loan which were due at the end of December 1997 and January 1998, had also been dishonoured. Mrs Sullman did not consult Mr Sullman about selling the house, or about taking out the second loan. Neither did she inform him what she had done. 83 When the bridging loan was drawn down, the money was disbursed as follows: Advertising and Auction $9,813.00 Arrears $9,728.40 Mrs Sullman, and costs associated with obtaining loan balance 84 In either December 1997 or very early January 1998 a deed of declaration of trust and indemnity was entered into between Mr Sullman and Miss Sullivan relating to the Robin Hill property. It acknowledged that Miss Sullivan had made a contribution towards the purchase price of the property of £50,000, and that the beneficial interest in the property was held as to 25% for Miss Sullivan, and as to 75% for Mr Sullman. Miss Sullivan was to have the right to decide whether the property should be sold while the tenancy agreement was still on foot, and Mr Sullman was to have the right to decide whether the property should be sold once the tenancy agreement had expired. The £50,000 that the deed talked of was paid by Miss Sullivan making available to Mr Sullman £50,000 from the proceeds of sale of Bransgore House. Mr Sullman organised the sale of the Bransgore property after he returned to the UK in November 1997. The evidence is silent about what use had been made of the Bransgore property between the time that the Robin Hill was purchased as a home for Miss Sullivan and Lawrence in November 1996, and the time that the Bransgore property was sold a little over a year later. It is silent about whether anyone obtained any financial benefit from the Bransgore property during that time. 85 Mr Sullman spent Christmas and New Year of 1997 with Miss Sullivan and Lawrence Affidavit 21.11.01, para 3. When an English solicitor wrote to him on 7 January 1998, her letter was addressed to him at the Robin Hill property. After some date in January 1998, Mr Sullman lived with his brother Brian, at 44 Roundwood Park, Harpenden. (This is a property which Mr Sullman had bought for his brother and sister-in-law to live in.) 86 In December 1997 Mr Sullman telephoned Mrs Sullman and said, "Please stop spending so much as I cannot afford it". She replied, "I have no money to pay for Christmas". Following that conversation, Mr Sullman sent Mrs Sullman an amount of $1,261 in December 1997, and a further amount of $2529.50 in January 1998. 87 Soon after 8 January 1998, Mr Sullman received a copy of an American Express statement for December 1997, relating to an account that Mrs Sullman was authorised to debit. He saw that an amount of $17,800 had been debited, dated 8 December 1997, by Pittwater House. Ex CC45, page 286 Mrs Sullman had debited to the American Express Card, the school fees for Christopher and Edward at Pittwater House, for the whole of 1998, before the school had issued an invoice in relation to those fees. Mr Sullman telephoned Mrs Sullman. His account of the conversation which ensued is as follows: "MR: What the hell are you up to? MRS: I have paid a year in advance for the children's school fees. MR: I thought you and the children were coming over to the UK once I had organised a job and somewhere to live. MRS: You thought wrong, didn't you. MR: "I have been told by a friend that you have put the house on the market – is this true? MRS: Yes. MR: Why didn't you tell me? MRS: It is my property – I will do what I like with it. MR: It's our joint property. MRS: No it's not. I transferred it into my name in accordance with the Court Orders. MR: I cannot trust you anymore. I will have to cancel your AMEX card." 88 Soon after that conversation, Mr Sullman cancelled the additional cardholder facility which Mrs Sullman had on his American Express account. He had obtained, by 20 January 1998, a "temporary credit" from American Express for the entire amount debited to the card for the school fees Ex D5, page 139. Mr Sullman also gives evidence that this was the first time he learned that the home had been transferred to the cross-defendant's sole name. 89 Mrs Sullman denies that account of the conversation. Her account is: "MR: What the hell are you up to? MRS: I have paid the school fees. MR: What you have done is fraudulent. You could go to jail for that and I'd like to see you in jail. I have phoned American Express and the school. You have now got to write to the school and tell them you have done this in error otherwise you will end up in jail. I have already cancelled your American Express Card." She continues: "The Cross-Claimant dictated a letter to me which I sent to Pittwater House School to the effect that I had made an error and requesting that they make a refund to American Express. To my knowledge most of the fees were refunded to the Cross-Claimant's American Express card except for the school fees that were due. I deny that there was any conversation about the children and I returning to the UK, about the sale of the property or about the property being put into my sole name. Furthermore, I say that the Cross-Claimant had been aware that I was entitled to the property in my sole [ sic ] since our property settlement in 1991, he also knew that I had been registered as the sole proprietor since before the loan with MLC in 1995, and knew that I would not return to the UK." 90 (Mrs Sullman's reference to Mr Sullman knowing that she would not return to the UK is a reference to some evidence which she gave about her response to Mr Sullman informing her, on 15 September 1997 that the only chance he had of getting a job was to go back to England to live. She says that at that time she replied to him saying, "The children and I won't be going. Our home is here." There is no corroboration of this evidence. I am not sufficiently confident on the accuracy of Mrs Sullman's recollection to hold that it is more likely than not that this particular piece of evidence of hers, concerning 15 September, is correct.) 91 Something of the flavour of how relations stood between Mr and Mrs Sullman in January 1998 can be gained from contemporaneous file notes made by Mrs BA Keating, an officer of Pittwater House School, of telephone conversations on 12 January 1998. The first file note relates to a call that Mr Sullman made to the School. Mr Sullman gave Mrs Keating his contact number in the United Kingdom. It is the telephone number of the Robin Hill property. The file note continues: "Sullman, Mr (tel in 11am) - he has rec'd his statement with $17800 – charged for 1998 and he is disputing the charge. - he said Mrs Sullman was told not to use the card and it was cx in UK on 8/12/97. - in order to recover the money Amex have advised him to request a credit from us as the fees are not actually due yet. If we refuse they will involve the police and act against Mrs Sullman for fraud. - he also stated that if the children stayed at TPHS he would be responsible for the fees as they are due each term but he didn't have $17800 at the moment - if TPHS refuses to give the credit he threatened to withdraw the children & therefore no fees would be due and we would have to refund the money. BAK – informed him we had approval from Amex and a request from Mrs Sullman therefore had done nothing wrong. - that I would have to speak with RVHM regarding the credit – it was not my decision to refund $17800. - said we would telephone him in the UK ASAP to let him know what we would be doing." 92 Next, Mrs Keating telephoned Mrs Sullman: "BAK – explained Mr Sullman wanted the money recredited - that he said she had approval to be using the card etc & that Amex & he would send the police regarding the fraud if the school did not recredit. Mrs Sullman – adamant the card was not cx - not to give the credit back - he could send the police if he wanted to - he left her penniless & was responsible for the fees etc & Blaa[?] - she was happy to contact him however she did not have a number BAK said we would explain the above to Mr Sullman and recontact her if necessary." 93 Mrs Keating then telephoned Mr Sullman. The note is as follows: "BAK – contacted Mr Sullman explained I had been advised to speak with Mrs Sullman and had done so – and that she did not want the credit put through etc. - also explained the school acted in good faith and had done nothing wrong & were not to know their marital problems - said we would not be able to put the credit through while there was contradicting advice coming from each parent. Suggested he put his request in writing or contact Mrs S to come to an agreement. - suggest if they agreed together to a credit TPHS would probably have no problems but the decision was still not mine. Mr Sullman – still insists on a credit * he will contact Mrs S and or send a fax to the school regarding the matter - said if TPHS didn't give the credit we would be forcing him to withdraw the children as he simply didn't have the money. - also mentioned a letter from Nov 97 (copy not in a/c file) requesting scholarships explaining he had no money – that he has had no reply to, and can not understand why we think he could afford to pay in advance." 94 A little over an hour later, Mrs Sullman telephoned the school: "Mrs Sullman – phoned to say she would have to ask to put through a credit for the fees - she had discussed the situation with Mr S and he is happy to pay fees each term - she is apparently forced into this situation by Mr S who will withdraw the children if she doesn't agree. BAK – asked to put the above in writing * explained that we would only be able to put the credit through for Term 2 to 4 not T1 as it was due in 2 weeks anyway. * credit would not go through until we had it in writing." 95 Mrs Sullman then, about an hour later, faxed a letter to Mrs Keating saying: "We are reviewing our financial position and are forced to authorise the withdraw of the Amex payout and will pay the school fees on a term to term basis." That letter is one which Mr Sullman had dictated to her. 96 Pittwater House refunded $12,717 to American Express, which represents the cost of school fees for three terms. This credit appeared on Mr Sullman's American Express Statement in February 1998 Ex D5, page 140, and the temporary credit for the entire amount of fees charged to the American Express account was removed. 97 Mr Lethbridge SC, counsel for Mr Sullman, urges that I not make too much of this incident, saying that it is common enough for parties in a relationship to have arguments, sometimes serious arguments, and common enough for those arguments to be about money. It seems to me that this incident involves more than a serious argument about money. For Mrs Sullman to have taken the step, at all, of charging a whole year's school fees in advance to the credit card, when they had not been invoiced by the school, shows the depth of her uncertainty about whether Mr Sullman would continue to pay those fees periodically. For her to tell Mrs Keating that she did not know where to contact Mr Sullman by telephone (at a time when Mr Sullman was readily contactable at the telephone number of the Robin Hill property), and that Mrs Keating needed to act as an intermediary to relay messages from Mrs Sullman to Mr Sullman, is consistent with there then being a rift between them. For Mr Sullman to tell the administration of the school his children attended that Mrs Sullman had engaged in fraud, and that he would call in the police to deal with that fraud if the school did not refund the money, is serious indeed. If Mr Sullman was correct in telling Mrs Keating that Mrs Sullman was told not to use the card, and it was cx (which I take to mean "cancelled") in UK on 8 December 1997, that means he had left Mrs Sullman with no available source of funds whatsoever. However, I find that this statement, which he made to Mrs Keating, was not correct, as the American Express Card had not been cancelled. That he misrepresented the truth to Pittwater House in this respect is detrimental to his credit. 98 Christopher and Edward continued as students at Pittwater House School during 1998. Their fees for terms 2, 3 and 4 of 1998 were not paid. The gist of Mr Sullman's evidence about payment of Pittwater House fees thereafter is that he thought the boys had scholarships from Pittwater House which paid the fees. Mrs Sullman had written a letter on 11 November 1997 to a school officer, the text of which was either composed by, or approved by, Mr Sullman, requesting scholarships. He says that when a credit for the bulk of the amount paid for fees appeared on his American Express statement, he assumed that scholarships must have been granted, and that it was only at the end of 1998 that he discovered that no scholarships had been granted. I reject this explanation from Mr Sullman for non-payment of the fees. At one stage in his communications with the school on 12 January 1998 Mr Sullman had talked of withdrawing the children from the school as he could not pay the fees, and had referred to the earlier request made for scholarships. However, the last communication of the day was the letter which Mrs Sullman wrote, at Mr Sullman's dictation, saying that the fees would be paid on a term-to-term basis. That letter made no mention of the boys needing scholarships if they were to stay at the school. 99 Mrs Sullman submitted the house for auction in March 1998, but it was not sold. On the day the property was passed in at the auction, Mr Sullman telephoned Mrs Sullman and had a conversation: "MR: I have had my spies out. Did the property sell? MRS: No" 100 The highest offer received for the property on that day was $1,825,000. 101 By March 1998, Mr Sullman had formed the view that there was a possibility that he would be able to set up his own business in the United Kingdom. He says that in March 1998 he telephoned Mrs Sullman and said: "There is a possibility I can set up my own business. Why don't we meet halfway for a holiday to celebrate and to sort out what we are going to do. I want to see the children, and I want you all to be able to stay living in the home." 102 In April 1998 Mr Sullman, Mrs Sullman, Christopher and Edward holidayed in Thailand for two weeks. Mr Sullman paid for everyone's airfares and accommodation. There is a photograph in evidence, taken on that Thailand trip, which shows Mr and Mrs Sullman posing for the camera, with Mr Sullman having his arm around Mrs Sullman's shoulder. After that holiday, they returned to Sydney. Mr Sullman stayed at the Ingleside house for a week or two before returning to the UK on 9 May 1998. 103 Mrs Sullman told Mrs Tenukest, in advance, that she was going to go with the two boys to Thailand. Mrs Tenukest was asked: "Q. What did she say about that? A. From my memory, she desperately needed to provide a holiday for the boys. She wanted to, if possible, put them in touch with their father from time to time and she saw that that was, you know, an option for her to have a holiday where she - she certainly couldn't afford one from her own means." T 394 104 Mr Sullman's account of what happened thereafter is: "While in the UK I signed a contract in relation to the setting up of my business. I returned to Sydney in August 1998 and visited the family from 18 August 1998 to 1 September 1998." 105 Mrs Sullman gives evidence that she has no recollection of Mr Sullman visiting from 18 August 1998 to 1 September 1998. In an affidavit in reply, Mr Sullman did not seek to provide any corroborating detail in relation to any such visit. However, a Mrs Lindesay gives evidence that she recollects Mr Sullman was living at the property when she moved into the downstairs flat as a tenant in August 1998, and that he moved out a few days after she arrived. In these circumstances I accept Mr Sullman's evidence that there was a visit from 18 August 1998 to 1 September 1998. However, it is of some significance that he described his stay as having "visited the family", rather than "stayed at home". 106 Mrs Lindesay continued to occupy the downstairs flat for 13 months from August 1998. 107 In October 1998 Mr Sullman paid for Mrs Sullman, James, James' girlfriend, Christopher and Edward to stay with him at the Sea World Resort in Surfers Paradise for one or two weeks. After that holiday Mr Sullman returned with the family to the Ingleside property for a few days, then returned to England. 108 In November 1998 Miss Sullivan informed Mr Sullman that if they were to be married, Lawrence's birth certificate could be changed. Lawrence's birth certificate, as it then stood, showed Lawrence's name as "Lawrence Sullman", but showed his parents with surnames "Sullman" and "Sullivan" respectively. Thus it was apparent on the face of the birth certificate that he was illegitimate. Miss Sullivan had ascertained that, if the parents of an illegitimate child were to marry, that child would thereby be legitimated, and the registry authority in England would issue a birth certificate which showed the mother's surname as being her (later acquired) married name. Mr Sullman agreed to the proposal. Miss Sullivan then contacted a travel holiday agent and booked a "marriage package" to Sri Lanka. Mr Sullman paid for the trip on his credit card. 109 On 2 January 1999 Mr Sullman and Miss Sullivan were married in Sri Lanka. They returned to the UK three days later. 110 In April 1999 Mr Sullman went to Melbourne for the purpose of giving evidence in a court case connected with his former employment. His travel expenses were met by Lend Lease. Mrs Sullman, Christopher and Edward went to Melbourne (at Mr Sullman's expense) to meet him. They stayed a week to ten days. The case settled, Mr Sullman was not required to give evidence, and they all returned to Sydney, where Mr Sullman stayed a few days at Ingleside. Part of Mr Sullman's purpose in coming to Sydney on this occasion was for the trial of a criminal charge which had been brought against him, and which he successfully defended – see paragraph 295 below. 111 During the time Mr Sullman was in Sydney in April 1999, he accidentally left his mobile phone in Mrs Sullman's car. While Mrs Sullman was out driving, a couple of days after they returned from Melbourne, she answered a call on the mobile phone. It was Miss Sullivan, who said she wanted to speak to her husband. She explained that they had married in Sri Lanka in January. This was news to Mrs Sullman. 112 When Mrs Sullman let Mr Sullman know that she had heard about the marriage, he immediately gave an explanation, that the marriage was a marriage of convenience, connected with changing Lawrence's birth certificate. Mr Sullman returned to the UK before the end of April 1999, one or two days after Mrs Sullman had found out about the marriage. 113 (The evidence included a certified copy of Lawrence's original birth certificate and of the amended birth certificate. The amended birth certificate does indeed show Lawrence as having been born to parents each with the surname Sullman. It also shows that Mr Sullman made the declaration which enabled the amended birth certificate to be issued on 22 November 2000. That is one year and ten months after the marriage. It is also one day after the date when Mr Sullman swore his first affidavit in these proceedings, in which he gave evidence that the reason why he and Miss Sullivan married, was to obtain a change in Lawrence's birth certificate. Obtaining a change in Lawrence's birth certificate was not, in Mr Sullman's mind, a matter of pressing importance at the time he married Miss Sullivan.) 114 In July 1999 Mr Sullman telephoned Mrs Sullman and asked her to meet him in Queensland with the children, as he had to come to Australia for some business. Mrs Sullman, Christopher and Edward then flew to Queensland, where they spent about a week at Hope Island with Mr Sullman and Mr Tony Skelton. Mr Skelton is an English friend of Mr Sullman, and is Christopher's godfather. Mr Sullman and Mr Skelton had been working together on the new business venture. Mrs Sullman paid for the airfares for herself and the children by using frequent flyer points. Both Mr Sullman, and Mr Skelton, came to Sydney and stayed at the Ingleside house for a few days, before Mr Sullman and Mr Skelton returned to England. 115 For some months before this, Mrs Sullman had been having difficulties with NRMA about non-payment of both loans which had been taken out on the property. She had told Mr Sullman about these difficulties. While in Queensland, Mr Sullman made arrangements for himself and Mrs Sullman to meet the chairman of a software company called IDT Limited that Mr Sullman was dealing with in relation to the business which Mr Sullman was then trying to start. That chairman also owned a wholesale mortgage company, called Flexi-Mortgage, in Sydney. Mr and Mrs Sullman had dinner with the chairman, who told them that he would arrange for them to meet his mortgage manager in Sydney. 116 When they got back to Sydney Mr Sullman told Mrs Sullman that he thought they should borrow $600,000, on the security of the Ingleside property. He explained that amount as being $300,000 for NRMA, $50,000 for Mrs Sullman to live off, $25,000 to pay for tickets for the family for the Olympic Games, and the rest for Mr Sullman's new business. 117 Mr and Mrs Sullman went to see an officer of Flexi Mortgage in Sydney. Mr Sullman told that mortgage manager, in Mrs Sullman's presence, that they wished to apply for a loan of $600,000. An application form was filled out, and they both signed it. 118 The next morning Mrs Sullman drove Mr Sullman and Mr Skelton to the airport, and they left for England. Mr Skelton gives evidence, on which he was not cross-examined, that at the airport Mrs Sullman gave Mr Sullman an "enormous hug" and said: "Don't forget to ring me as soon as you get to Heathrow. I don't want the responsibility of sending off the application for the Olympic tickets without talking to you following the survey." 119 Mrs Sullman told her friend, Donna Tenukest, about the application to borrow $600,000. Mrs Tenukest wrote a letter to the mortgage company on 21 July 1999. The letter stated that a copy of it was being sent to ASIC, to Mrs Sullman, to Mr Tony Skelton, to Mr Peter O'Brien (a friend of, and financial adviser to Mrs Sullman), to Mr Brian Sullman, to Mr Ian Allen, (a friend of Mr and Mrs Sullman) and to IDT Pty Ltd (a company with which Mr Sullman was dealing in connection with his proposed new business). In fact not all, and perhaps none, of these people and organisations were sent a copy. The letter stated that Mrs Tenukest was legally qualified, that the proposed mortgage was not of financial benefit to Mrs Sullman because she did not have any income and could not service the loan, that she was no longer married to Mr Sullman, and that Mr Sullman was no longer a resident of Australia. She asserted that for Flexi Mortgage to make the advance to Mrs Sullman would be unconscionable, that the arrangement would be entered into by Mrs Sullman under duress, and that it would be an unfair bargain. She stated that the letter should be taken as giving Flexi Mortgage constructive notice of the circumstances of Mrs Sullman, and that it would be used in her defence if the advance were to be made, and any attempt was made following a default, to seek possession of the property. 120 Unsurprisingly, Flexi Mortgage was not prepared to proceed. Mr Sullman telephoned Mrs Sullman and attempted to persuade her to have Mrs Tenukest withdraw the letter. There was more than one such telephone conversation. By, at the latest, early August 1999 it was clear to both of them that the letter would not be withdrawn. Further, after talking it over with Mrs Tenukest, Mrs Sullman came to appreciate that mortgaging her house in the way that Mr Sullman wished, was not a good idea. She told Mr Sullman that she would not proceed with the mortgage application. Mr Sullman asserts that it was at this time that the relationship came to an end. 121 The evidence includes a letter, in Mrs Sullman's handwriting, dated 28 July 1999. It says: "Dear Donna, I have today received a copy of the letter sent to Mr Johnson of Flexi-Mortgage Pty Ltd. I had no idea that you had written this to him and you did not have my permission to do so, nor to send copies to other people particularly when you had not shown me a copy of this. It is incorrect of you to state that you are my personal adviser. On the subject of my original mortgage I approached Mike and asked him if he would be willing to repay a mortgage for me as I had no way of paying off the personal loan that you were in fact involved in obtaining for me from the NRMA which I am unable to repay without selling the house. I also need part of the monies to pay off other debts I have and to finance the repayment of the monies I have borrowed for my application of Olympic tickets, which I did not submit until the last day as I was awaiting to hear from Mr Johnson that the mortgage had been approved. I am also concerned about other matters you have brought to my attention, both Mike and I are separated from our spouses and already have a de facto relationship and plan to re-marry once our divorces are finalised. Without this loan for which he and I have applied I will have no option but to sell the property which will produce an unstable environment for the children, especially for my daughter who is about to start her HSC exams and is studying hard at the moment. Mike repaying the mortgage may well be an unfair bargain as he takes on the liability to repay the mortgage and much of the mortgage is being utilised for my and the children's benefit. But he has agreed to do so because he wants to maintain the family stability as much as possible while he is working in the UK and we remain in Australia. Mike has been paying the mortgage to the NRMA which is in our joint names, which was used mainly to pay monies to Nicholas Meyer when we separated. I will now have to seek legal advice to attempt to overcome the problems caused by the letter you have sent. I may now have to transfer ownership of the property for the mortgage to proceed. In the future please do not send letters on my behalf without my knowledge or discuss my affairs without my knowledge. Penny cc Mr M Johnson – Flexi-Mortgage Pty Ltd MD Rodgers IDT." 122 In an affidavit which she swore on 7 June 2001, Mrs Sullman said that Mr Sullman had faxed to her a draft of a letter, from her to Mrs Tenukest, and told her to write it out, fax it to Mrs Tenukest and get her to retract her letter. Mrs Sullman said that she refused to do so, and threw his fax in the bin. That evidence of Mrs Sullman is manifestly incorrect, as the letter I have just quoted exists in Mrs Sullman's handwriting. Not only does that letter exist, but a copy of it was tendered from files which Flexi-Mortgage produced on subpoena to the Court. 123 Mr Sullman responded to the evidence which I have just mentioned by denying that he had faxed her a letter. He said: "I had drafted a letter which I read out to the cross-defendant over the phone. She said to me words to the effect of "I will put it into my own words and send it to Donna" ". 124 He exhibited to his affidavit the letter I have just quoted, in Mrs Sullman's handwriting. Affidavit 21.11.01, para 73 125 Mrs Sullman replied to that allegation saying: "To the best of my recollection the cross-claimant faxed the draft letter to me and as requested by him I re-wrote the letter and faxed it back to him. To the best of my knowledge I did not fax or give the letter to anyone else. Later I screwed up both the cross-claimants' fax and my letter and threw them in the bin." Affidavit 14.12.01, para 46 126 In cross-examination Mrs Sullman gave yet another version T.301ff, namely that the words of the letter were dictated to her over the phone when Mr Sullman rang in the early hours of the morning, and that Mr Sullman asked her to fax what she had written back to him so that he could read it himself, which she did. 127 I accept that, whatever the precise mode might have been by which Mr Sullman communicated with Mrs Sullman, the wording of the letter is Mr Sullman's. Further, whether the actual text of the letter was communicated to Mrs Sullman over the phone or by fax, Mr Sullman was telephoning Mrs Sullman urging her to write it in her own hand, and send it to Mrs Tenukest. Mrs Sullman gave evidence, "Q. So, why in the world did you write these words down? A. Because Mr Sullman phoned me in the early hours of the morning. I thought, "I will write it down because he won't phone me again if I say I will write it down". T.304 . I accept that evidence. 128 The copy of the letter which was produced from the files of Flexi-Mortgage bears a fax header which shows it as coming from "Sullman", at the telephone number of the Ingleside house. The fax header also bears the date "Feb 20 2000". 129 Mrs Sullman gave evidence about this date entry, "Q. Right. Well, firstly, I want to suggest to you that that was an entry that was printed on the receipted copy received by Mr Johnson? A. That is the date it would have been on my fax machine, which is that date there. Q. Yes, I know, ma'am, that's right, isn't it; that is the date that would have been on your fax machine? A. Yes, it was the wrong date." 130 She went on to deny that she faxed the letter to Mr Johnson, of Flexi-Mortgage. 131 I do not understand this evidence of Mrs Sullman as involving a concession that, on 28 July 1999, her fax machine would have transmitted an incorrect date to the recipient of a document sent from it. However, even if Mrs Sullman had, on, or soon after 28 July 1999 sent a copy of that letter to Flex-Mortgage, I would not regard it as involving her in making any admission in terms of its contents. Mr Sullman was desperate to obtain the loan from Flexi-Mortgage. Mrs Sullman telephoned Mrs Tenukest, told her that Mr Sullman had been applying a lot of pressure for her to get Mrs Tenukest to retract the letter, and asked what she should do. If she was prepared to go as far as this with Mrs Tenukest, it is possible that she might have been prepared to send a copy of the letter which Mr Sullman composed to Flexi-Mortgage. However, I do not find it is more likely than not that she sent the letter to Flexi-Mortgage on or about 28 July 1999. Even if she had done so, I would regard the contents of the letter as being the product of pressure from Mr Sullman, not an admission by Mrs Sullman. 132 The periods when Mr and Mrs Sullman were living in the same premises can be summarised as follows: Begin End Place Approx weeks until cohabitation next resumed Early Nov '95 Early Jan '96 Ingleside and Coolum 2 -3 22 Jan '96 22 Apr '96 Ingleside 10 1 Jul '96 Late Oct '96 Overseas trip 2 –3 13 Nov '96 10 Jul '97 Ingleside, and Jan '97 visit to England (8 days) 8 – 9 15 Sept '97 Eary Nov '97 Ingleside 20 April '98 9 May '98 Thailand (2 weeks) and Ingleside (a week or two) 12 -13 18 Aug '98 1 Sept '98 Ingleside 4 – 5 Oct '98 Oct '98 Gold Coast (1 or 2 weeks) and Ingleside (a few days) 23 Apr '99 Apr '99 Melbourne (7 – 10 days) then Ingleside (a few days) 8 - 9 Jul '99 Jul '99 Hope Island (about a week) and Ingleside (a few days) 133 This can be further summarised by saying that, in the period of around two years from early November 1995 to when Mr Sullman left for England at the beginning of 1997 Mr and Mrs Sullman were living in the same premises for the whole time except for approximately 22 to 25 weeks. That is, for more than three quarters of the time during those two years they were living in the same premises. Further, for most of the time that they were living in the same premises during those two years, they were living in the family home at Ingleside. 134 A different picture emerges after Mr Sullman's departure for England in November 1997. In the period of approximately 21 months from the beginning of November 1997 to the beginning of August 1999, they spent between approximately 67 weeks and 70 weeks living in different premises. On those occasions when they were together during that period of 21 months, it was predominantly in holiday destinations. During those 21 months, Mr Sullman spent, at the most, six weeks living at the Ingleside property. 135 From his departure in November 1997 Mr Sullman regarded himself as a resident of the United Kingdom for tax purposes T 92. 136 On 16 February 2000 Mr Sullman swore an affidavit in support of an application to the Family Court to have the 1994 maintenance agreement set aside. His evidence included: "Since around December 1997 I have been living in the UK and I mostly return to Australia around the time of school holidays when I spend time with the family including the children of the marriage". That statement is accurate. Paragraph (c) - Existence of a Sexual Relationship 137 It is more probable that there was a sexual relationship between them. They had previously been married, and had had a sexual relationship then. There was no discussion, when Mr Sullman moved back into the Ingleside house, about where he would sleep – he moved back to the bed he had previously occupied with Mrs Sullman. The Ingleside house had been inspected by a valuer from MLC, who issued a report on 7 September 1995 describing its accommodation as follows: "Main level: Five bedrooms (all with built in robes), main with ensuite and walk in robe, bathroom, hallway, entry, study, large lounge/dining eat-in kitchen, large family room, laundry and enclosed slate entertainment area Lower level: Two bedrooms, main with ensuite, both with built in robes, kitchenette, and study." 138 The lower level had been spacious enough for Mr Meyer and his four children to live in for about three months (from late July or early August 1995, to early November 1995) and in 1998-1999 Mrs Lindesay and her two sons lived there for 13 months. There was nothing to stop Mr Sullman from living in the downstairs flat, if the sole point of his being there was to improve his relationship with the children. 139 It was not only at the Ingleside property that Mr and Mrs Sullman shared a bed. On the occasions when they were staying at premises away from Ingleside, they always shared the same bedroom. On some occasions the room contained a double bed, on others it contained a twin bed. Mr and Mrs Sullman stayed with Mr Skelton for part of the time they were in England in the latter part of 1996. That is one occasion when they shared a room with a double bed. 140 Mr Meyer gave evidence, on which he was not cross-examined, that a short while after he had moved out of the Ingleside property he went to the Bayview ramp to take his boat out, and saw Mr and Mrs Sullman "kissing and canoodling". 141 Mr Michael Bailey gives evidence of having had lunch with Mr and Mrs Sullman at a restaurant in North Sydney in October 1995, after they had been to see an MLC mortgage manager. Mrs Sullman said to Mr Bailey: "Nicholas wants to be paid back the money he spent on me before he will move out. I don't want to pay him but Mike says that it will mean that we can be together quicker so we should just pay him. Mike has been talking to Nicholas to try and sort something out with him." 142 While the literal meaning of the words Mrs Sullman said was that it was Mr Sullman who wanted them to "be together", she was expressing no dissent from that wish. (I am not persuaded that the October 1995 date which Mr Bailey attributes to this conversation is correct, but all that matters for present purposes is that it occurred in the several months before Mr Sullman moved back into the Ingleside house.) 143 Mr Bailey and his wife went to the Sullman's house for Sunday lunch at a time he does not precisely identify. He says: "I recall we ate on the verandah and when they cleared away the plates I witnessed them having a long passionate embrace in the kitchen before bringing out the next course." 144 Mrs Tenukest gave evidence that when Mr Sullman met her at the Neutral Bay coffee shop in November 1997, he spoke on the topic of sex in his relationship with Mrs Sullman. The account which Mrs Tenukest gave in her affidavit, was that he said, "He had not been involved in any sexual relationship with Penny". The account which Mrs Tenukest gave in cross-examination, was different: "I challenged Mike about the fact that had he been bona fide in coming back into the relationship with the purpose that he had, you know, obviously put forward and he said, "Well, look, it was all a very good option and you know that I'm not involved with Penny in any type of way sexually" and that's what Mr Sullman said to me on that day." 145 The version she gave in cross-examination, speaking as it does in the present tense about him having no sexual relationship, does not involve Mr Sullman saying that there had been no sexual relationship at any time since he had moved back into the Ingleside house. The version which Mrs Tenukest gave in cross-examination seems to me to be more likely. 146 Neither Mr Sullman, nor Mrs Sullman strikes me as a witness whose evidence I could accept unreservedly. Relevantly to the present question, there are occasions when Mrs Sullman's evidence has been demonstrated to be unreliable. She could not recall making any telephone calls to her husband (who by that time was largely in England) in 1999, and could not think of any reason why she would have called him – yet an itemised telephone account shows that he was telephoned from her home on scores of occasions during that period. Her statement that the children refused to go on a holiday with Mr Sullman unless Mrs Sullman also went is contradicted by the fact that Mr Sullman and Elizabeth travelled to the United Kingdom, without Mrs Sullman, in January 1996, by the fact that in 1996 Christopher and Edward went to a holiday camp in the UK with Mr Sullman and Lawrence Sullman, but without Mrs Sullman, and that in December 1996 Mr Sullman again took Christopher and Edward away without Mrs Sullman being present. (There was also an occasion in 1999 when Mr Sullman took James and his girlfriend to Queensland for a holiday without Mrs Sullman, but it seems to me that that occurred too late to be able to cast any useful light on the state of relations in, and soon after November 1995.) 147 In July of 1995 Mr Sullman had a holiday in Queensland with Christopher, Edward, James and a friend of James'. Mr Sullman flew to Queensland with Miss Sullivan, Christopher and Edward. Mrs Sullman flew to Queensland with James and James' friend, and delivered James and James' friend to the resort where Mr Sullman was staying. Mr Sullman and the boys spent about a week at the resort on that occasion. While Mrs Sullman says that James was reluctant to go, and would only go if he could take his friend, this holiday seems to me to undermine Mrs Sullman's claim that all four of her children were refusing to go on access with Mr Sullman, and that that was a factor in her deciding to take him back into the house. 148 Mrs Sullman's evidence that the only reason why she went on a holiday with Mr Sullman was so that he could see the children, does not sit very well with her accompanying Mr Sullman on the trip to England in January 1997, when no children accompanied them. She also significantly understated the extent to which she and Mr Sullman engaged in social activities together – see paragraph 188 and following below. I am not satisfied that Mrs Sullman was having difficulties with the payment of child support and school fees, at least in the year or so before Mr Sullman moved back into the house. That Mrs Sullman could not remember Mr Sullman having stayed at the Ingleside home in August 1998 does not inspire confidence in the accuracy of her recollection. In all these circumstances, I am not prepared to accept her denial that sexual relations occurred. 149 Mr Sullman's evidence that there were sexual relations is corroborated by the evidence I have already referred to which supports the view that it is more probable than not that there were sexual relations. Paragraph (d) - The Degree of Financial Dependence or Interdependence, and any Arrangements for Financial Support, Between the Parties. 150 Mrs Sullman is a qualified nursing sister and midwife, but has not been in paid employment since she was pregnant with James, now more than 21 years ago. As stated earlier, Mr Sullman's employment with Lend Lease ended in early January 1996, and he was not in paid employment for any part of the remainder of the period during which he says a de facto relationship existed. 151 During the relevant period, Mr and Mrs Sullman operated the following bank accounts: Bank A/C No. A/C Holder A/C Type Opened Closed ANZ Mona Vale 3544-87709 Mr & Mrs Sullman Cheque 20/1/97 27/10/97 CBA, Miller & Berry Sts Nth Sydney 10097192 Mr Sullman Cheque Prior to August 1995 Still open Lloyds Bank Ludgate Hill (UK) 194782 Mr Sullman Cheque Prior to August 1995 5/9/01 Halifax Bank, Harpenden Branch UK 147955 Mr Sullman Cheque About March 1999 (Still in existence July 2000, but with token balance) CBA Mona Vale 10097871 Mrs Sullman Cheque Unknown Unknown NAB Newport 1905567 Mrs Sullman Cheque Unknown Unknown NAB Newport Unknown Mrs Sullman Passbook Unknown Unknown Macquarie 118115013 Mrs Sullman Cash Management Trust Prior to 30 April 1999 Unknown 152 Thus, it was only from January 1997 to October 1997 that Mr and Mrs Sullman had a joint bank account. Each maintained their own individual bank accounts throughout the period from November 1995 to August 1999. However, there were significant transfers between those bank accounts from time to time, some of which are mentioned later in this judgment. 153 Mr and Mrs Sullman had various credit cards or charge cards, as follows: · American Express Charge Card, in the name of Mr Sullman. This account was opened before August 1995. Mrs Sullman became an additional cardholder, entitling her to make charges to that account, in October 1995. Her additional card was stopped in January 1998 – see paragraph 88 above. · Barclay Card Visa account, in the name of Mr Sullman. It was already open in August 1995. Mr Sullman asserts, and Mrs Sullman denies, that Mrs Sullman had an additional cardholder facility on this account. In support of his assertion, Mr Sullman has tendered a letter from Barclay Card which relates to a different numbered account to the account for which Barclay Card statements are in evidence, and says that Mrs PA Sullman was added as an additional cardholder on 1 May 1995. This date does not fit well into the chronology of events I have found. I am not satisfied that Mrs Sullman ever had in her possession a card which entitled her to charge this account. · Lloyds Bank MasterCard, in the name of Mr Sullman. This card was in existence prior to August 1995. Mrs Sullman could not debit the account to which this card related. · QANTAS Telstra Visa Card, issued by ANZ Bank, in the name of Mr Sullman. It is not clear when this account was first opened. Mrs Sullman came to have an additional card which could debit the account in January 1997. At the end of July 1997, the credit limit on the card had been exceeded. At some time (the evidence does not establish precisely when) between 28 July 1997 and late April or early May 1997, that card was cancelled due to non-payment. Mr Sullman made payments off the debt on this card of $10,000 on 29 September 1997, of $9,840.09 on 19 January 1998, and of $714.28 on 8 May 1998. There were no payments made off the account in between the dates I have just mentioned. I infer that by the time Mr Sullman left Australia in November 1997, or very soon thereafter, the QANTAS Telstra Visa Card was cancelled. While it appears that a QANTAS Telstra Visa Card was active as at 19 January 1998, there is no evidence that Mrs Sullman had an additional card on whatever account was active at that date. Mrs Sullman has given evidence that, when Mr Sullman left in November, the only form of financial support she had was rental from the stables and an Amex Card. I accept that evidence, as it is consistent with the facts concerning account activity on the QANTAS Telstra Visa Card which I have just outlined. In late April or early May 1997, Mr Sullman arranged for a new card to be issued, and for Mrs Sullman to be provided a card as an additional cardholder. The QANTAS Telstra Visa Card account was finally closed in late October or early November 1999. · American Express Credit Card, in the name of Mr Sullman. It was opened some time after August 1995. (The American Express Credit Card had a limit on the amount which could be charged to it. In this way it differed from the American Express Charge Card, which had no limit.) Mrs Sullman could not debit the account to which this card related. · Barclay MasterCard in the name of Mr Sullman. It was opened some time after August 1995. Mrs Sullman could not debit the account to which this card related. · Halifax Visa Card, in the name of Mr Sullman. It was opened after August 1995. Mrs Sullman could not debit the account to which this card related. 154 The land on which the Ingleside home is constructed consists of about five acres. It contains a set of stables. Mrs Sullman let the stables out to a woman who ran a business of boarding horses there. Mrs Sullman, at the time of leaving Mr Meyer, received income of around $200 per week from the stables. There was some small expenditure for maintaining the paddocks and fertilising connected with earning that income. Mrs Sullman continued to let the stables until a few months before the house was sold. About six months after Mr Meyer moved out, she started to increase the number of horses there, so that the income she earned from the stables ranged from $280 to $380 per week. For ease of calculation, I will treat her average income from the stables, after payment of expenses, during the entire time that Mr Sullman asserts a de facto relationship exists, as being $300 per week. 155 For 13 months beginning in August 1998, Mrs Sullman let the downstairs flat at Ingleside to Mrs Lindesay, for $225 per week. Apart from some interest on bank balances, which for practical purposes can be ignored, income from the stables and rent from Mrs Lindesay was Mrs Sullman's only income. 156 On 2 November 1995, in connection with her application for approval of a property settlement with Mr Meyer, Mrs Sullman swore an affidavit which detailed her weekly estimated outgoings. The weekly outgoings were estimated at $1,179.29. This figure did not include school fees for the children. 157 As at 30 May 2001, Mrs Sullman estimated her weekly expenses as being $2,692.90 per week. This figure included rent of $590, and $638 per week for school fees for the two younger boys, and college fees for Elizabeth. Thus, excluding rent and those fees, her outgoings for basic household expenditure approximated $1,465 per week. She accepts that expenditure for basic household expenditure attributable to her and the children is likely to have been much the same as that amount in the period November 1995 to August 1999 as it was in May 2001. T362 158 Mrs Sullman's weekly outgoings in May 2001 included an amount of $35 per week for private health insurance. In the ordinary course, any such expense would cover Mrs Sullman and her dependent children. There is no evidence of how the $35 per week ought be apportioned between the cost of providing medical insurance for Mrs Sullman alone, and the cost of providing medical insurance for the dependent children. Some apportionment must be made, however. I shall proceed on the basis that roughly half the premium is attributable to Mrs Sullman, and the other half to the expenses of the children. On that basis, the cost of medical insurance for the dependent children is approximately $17 per week. 159 Over the period until he departed in November 1997, Mr Sullman ensured that all household bills in excess of Mrs Sullman's income of $300 per week were paid. Thus, during this period he ensured that payment was made of what I shall call the basic household expenditure (identified in paragraph 157 above), exclusive of rent, school fees, and children's medical insurance. This was around $1,150 per week. In addition, he ensured payment was made for school fees and medical insurance during this period, for the extensive holidays, and also for a standard of living which involved more than basic household expenditure. Apart from the last month or so before he left, he also made payments in connection with the mortgage. The sources drawn on to make this expenditure were Mr Sullman's own resources, such small amount of capital as Mrs Sullman had, and the amount left over from the MLC loan after Mrs Sullman had paid out Mr Meyer and paid her legal fees, and Mr Sullman had paid $38,800 – odd to Miss Sullivan. 160 After Mr Sullman's departure for England in November 1997, Mrs Sullman had, at first, no regular financial support. She had access to the American Express Charge Card. She used the American Express Card to purchase food, buying it at the petrol station because, at that time, supermarkets did not accept American Express Cards. The American Express Charge Card was cancelled, in the circumstances I have already outlined, in January 1998. 161 The payments which Mr Sullman made to Mrs Sullman after 1 December 1997 are as follows: 24 December 1997 1,261 9 January 1998 2,529.50 27 February 1998 4,936.60 3 March 1998 4,839.20 26 June 1998 5,000 1 July 1998 5,000 17 August 1998 5,000 1 September 1998 5,000 2 December 1998 15,000 7 January 1999 5,000 8 February 1999 5,000 8 March 1999 5,000 7 April 1999 5,000 7 May 1999 5,000 TOTAL $73,566.30 162 Of the payment made on 7 May 1999, $2,300 was contributed from Mrs Sullman's money. Thus, the total payments made from Mr Sullman's own money are $71,266.30. 163 The payments listed above, made on and after 2 December 1998, came about as follows. By December 1998 arrears in the mortgage had built up. Mr Sullman sent Mrs Sullman $15,000, on the basis (which she adhered to) that she paid $12,000 of it to NRMA to discharge the arrears. He made enquiries about whether it was possible to have regular periodical transfers of funds from the UK to NRMA, to payment mortgage instalments, but was told it could not be done. Thus, he instituted a system whereby he sent an amount of $5,000 each month to Mrs Sullman's cheque account with the Commonwealth Bank at Mona Vale and arranged for Mrs Sullman to execute a periodical payment authority so that $2,000 was deducted from that account each month and paid to the NRMA. That arrangement applied to each of the five amounts of $5,000 which Mr Sullman paid to Mrs Sullman in 1999. 164 After Mrs Sullman was re-issued with a QANTAS Telstra Visa Card in May 1998, there is no evidence that she actually used it until the end of September 1998. Thereafter, new debits were made in the following amounts: STATEMENT PAGE ENDING AMOUNT 29 October 1998 $509.68 25 November 1998 $4,072.02 22 December 1998* $950.06 29 January 1999 $820.82 26 February 1999 $574.61 30 April 1999 $1,028.83 TOTAL $7,956.02 * - Excluding $2,000 paid into ANZ Bank Mona Vale, probably to fund part of the payment of mortgage arrears made in December 1998, and already treated as a contribution in this judgment. 165 The pattern of the payments made, and benefits provided through Mrs Sullman using the QANTAS Telstra Visa Card, is clear. From the time he left in November 1997, until the end of June 1998, payments were sporadic, and at a rate which averaged considerably less than $5,000 per month. Continually from June 1998 to May 1999, Mr Sullman made payments at the monthly rate of $5,000. $2,000 of each payment was intended as a mortgage payment. $3,000 remained for Mrs Sullman to spend. This $3,000 per month was less than the amount of maintenance which Mr Sullman had agreed to pay for the children, under the 1993 and 1994 agreements. Even when the amounts which Mrs Sullman charged to the credit card are taken into account, the total payments made are less than the mortgage payments plus $3,000 per month. 166 Mr Sullman has not made any payments at all to Mrs Sullman since the payment of 7 May 1999. Nor has he paid any of the school fees of the children, or anything for their medical insurance, since that date. 167 The payments which Mr Sullman made to Mrs Sullman and his children in Australia, can be compared to the payments he made in connection with Miss Sullivan and Lawrence in England. From the beginning of 1998, Miss Sullivan and Lawrence were living in the Robin Hill property, which Mr Sullman owned, and which was free of mortgage. From the beginning of 1998 Mr Sullman reduced the payments he made to Miss Sullivan from £1,000 per month (approximately $2,500 per month) to £500 per month (approximately $1,250 per month.) In addition, he paid Lawrence's school fees, paid for all holidays for Lawrence and Miss Sullivan, and paid for all recreational activity for Lawrence (which he provided approximately every second weekend throughout 1998 and 1999). Mr Sullman is adamant that during this time he did not have a de facto relationship with Miss Sullivan. Even so, he arranged for her to have an unencumbered house, and more than $1,000 per month to support her one child. There is a fairly close comparison between these benefits provided to Miss Sullivan, and the provision of the wherewithal to keep the mortgage down at Ingleside, and an amount of less than $1,000 per month per child, which he paid to the family in Australia. 168 Mrs Sullman needed to use capital to pay living expenses in the period after Mr Sullman cancelled her Amex card. Of the money which she obtained on the bridging loan from NRMA in March 1998, she used about $10,000 to pay living expenses. By the time the Ingleside house was sold, she owed Mrs Tenukest $13,000. As well, there were the unpaid fees at Pittwater House, for terms 2, 3 and 4 of 1998, which I have earlier mentioned. 169 In June 1999 Pittwater House obtained a judgment for $24,681.91 against Mrs Sullman (inclusive of interest, and costs). A bankruptcy notice for that amount was issued against Mrs Sullman on 28 July 1999 and served on her on 8 November 1999. It appears that Pittwater School has not taken action to enforce the bankruptcy notice. It is not clear whether Mrs Sullman has paid her judgment debt or not. Mr Sullman has not subsequently paid the fees for Pittwater House for terms 2, 3 and 4 of 1998. 170 Mr Sullman corresponded with Knox Grammar School, and arranged for Christopher and Edward to board at Knox in 1999. He has paid their school fees at Knox for the first two terms of 1999, but no subsequent school fees. 171 On 3 August 1999 he wrote to the accountant at Knox Grammar School, with a copy to Mrs Sullman: "I had intended to write to you that unfortunately it was necessary for Edward and Christopher to be removed from your school in view of my financial position. This would be a terrible shame as they enjoy it there so very much. As you may know I came to England 18 months ago to set up a new business and whilst I had hoped that this would commence earlier this year it now seems that it is unlikely to launch until next year and my capital has run out. I had made alternative arrangements for the school fees to be funded from Australia during a trip over there last month but the intervention of a friend of my ex-wife has caused this not to happen. However, in a conversation over the weekend with my ex-wife she indicated that she was in a position to make alternative arrangements to pay their fees, which I believe is by way of a loan from this friend, so I should be grateful if you would refer your current invoice for AUD $13,217 to her at the children's home address in Australia and also discuss the subject of their remaining at the school with her." 172 His ongoing attitude to payment of school fees for Christopher and Edward is shown in another letter which he wrote to the accountant at Knox Grammar School on 14 January 2000: "I am in receipt of your invoice dated 10th January 2000. I do not know why you have sent this to me, as I wrote to you in August last year informing you that you should deal with my ex-wife with regard to future fees, as I am not in a position to pay them. I also asked you to contact her, as it was up to her whether she met these payments, or whether the boys had to leave your school. As I understand that they did remain at your school, I assume that when you spoke to her that she accepted liability for future payments and has paid those due since." 173 In connection with his divorce from Miss Sullivan in England, Mr Sullman was asserting, in March 2001, that he had Australian debts which included maintenance arrears of $66,705.75, Pittwater School fees of $24,263.27, and Knox School fees of $64,000. Paragraph (e) – The Ownership, Use and Acquisition of Property 174 The Ingleside house was, throughout, Mrs Sullman's property. Its contents, apart from two beds and two TVs, were also Mrs Sullman's property. 175 The property orders of the Family Court made following the divorce of the Sullmans, had ensured that by the time Mr Sullman moved back into the Ingleside home, there was no jointly owned property. The only purchase of durable property for use by members of the family during the time that Mr Sullman says a de facto relationship existed is that Mr Sullman purchased a boat and trailer (which was used by James, though registered in Mr Sullman's name) a snooker table, and a bed and chest of drawers (which were used by Elizabeth). The evidence does not enable me to say when each of these items was purchased. As well, a new Toyota Landcruiser registered number TZF585 (the vehicle which is the subject of Mrs Sullman's application in these proceedings) was purchased in November 1995. 176 Mrs Sullman says that the boat was a gift for James, the snooker table was a gift for the children, and the bed and chest of drawers were a gift for Elizabeth. Mr Sullman denies that the boat and snooker table were gifts, and says that they were bought for the benefit of all the family. The boat was purchased for an amount which Mr Sullman estimates at "about $10,000". James has since sold it. The snooker table cost $9,000 (on one piece of evidence from Mr Sullman) or $10,000 (on another piece of evidence from Mr Sullman), or $7,000 (on another piece of evidence from Mrs Sullman). Mrs Sullman sold it for $5,000 at the same time that she sold the Ingleside property. Mr Sullman does not deny that the bed and chest of drawers were a gift for Elizabeth. As Mrs Sullman has given no account of the actions and statements which led to her conclusion that the boat and snooker table were gifts, I am not satisfied that they were indeed gifts. 177 The only other substantial acquisition which either of them made, was that Mr Sullman purchased the Robin Hill property in England. Title to the Toyota 178 The new Toyota Landcruiser registered number TZF585 was purchased in November 1995. It cost $58,824 including registration. Mrs Sullman's old motor vehicle was traded-in, and given a trade-in value of $23,000. The balance of $35,824 was paid by Mr Sullman by a cash withdrawal made from his Commonwealth Bank account at Miller and Berry Streets North Sydney on 16 November 1995. 179 On 13 October 1995 an amount of $92,975 had been paid into that account, at a time when its credit balance was $22.14. That $92,975 was part of the proceeds of the joint borrowing from MLC. The only basis put forward by senior counsel for Mrs Sullman as to why Mrs Sullman had title to the motor vehicle was that "it was her money" which was used to purchase it. I do not accept this submission. The proceeds of the loan from MLC were, initially, the joint property of Mr and Mrs Sullman. They eachtook part of the proceeds of the loan. I am not satisfied that, at the time the $92,975 was paid into Mr Sullman's bank account it should still regarded as their joint property. Further, between the time when the deposit of $92,975 was made to the Commonwealth Bank account on 13 October 1995, and the time when the withdrawal of $35,824 was made on 16 November 1995, there were other deposits to the account (two amounts each of $5,979.91 for Mr Sullman's pay, and two unexplained deposits, one of $29,802 and the other of $4,430.82.) There were also numerous intervening withdrawals from the account (including the withdrawal of $38,800.94 on 17 October 1995, which was used to purchase a bank draft for £18,500 to send to Miss Sullivan.) In these circumstances, I see no basis for making a finding, other than that the amount of $35,824 was a contribution by Mr Sullman from his own resources to the purchase of the motor vehicle. 180 The motor vehicle was registered in Mr Sullman's name. In these circumstances the beneficial interest in it is held by Mr and Mrs Sullman as tenants in common in the ratio 35,824:23,000. Paragraph (f) – The Degree of Mutual Commitment to a Shared Life 181 Until Mr Sullman's departure in November 1997 I would infer that there was some mutual commitment to a shared life, arising from their ongoing interest in and responsibility for their children, and from the very fact of their living in the same premises. There was no express statement, by either of them, of ever having a commitment to a shared life. Rather, to the extent I have already outlined it, and in the circumstances I have already outlined it, they in fact sometimes shared a life, with sufficient continuity, and in domestic surroundings, so as to suggest there was some degree of commitment to continuing to do so. 182 When Mr Sullman left in November 1997, there were no specific plans about when, if at all, Mrs Sullman and the children would rejoin him. The circumstances of his living in the same premises as Mrs Sullman thereafter – that is, mainly in holiday destinations, with two of those holidays (Melbourne, and Hope Island) occurring because Mr Sullman had other activities to attend to in the place where they occurred, and when there was comparatively little time spent at Ingleside – does not lead me to infer that there was any commitment to a shared life during that period. I recognise that, during the period after November 1997, Mr Sullman made payments in connection with the first mortgage on Ingleside, and provided some money for the family to live on, but I would regard this as arising more from his responsibilities for the children, rather than from any commitment on his part to a shared life with Mrs Sullman. 183 Mr Sullman admits to having a sexual relationship with Miss Sullivan on "very, very few occasions" after August 1995 T 134-135. The only one such occasion for which the evidence establishes a date, is the day of the marriage of Mr Sullman to Miss Sullivan, 2 January 1999. His sexual relationship with Miss Sullivan tends to some extent against a commitment on his part to a shared life with Mrs Sullman, though without knowing more of the circumstances, and dates, one cannot tell how seriously to weigh these incidents. His taking the step of marrying Miss Sullivan, even in the circumstances in which that marriage occurred, is a strong piece of evidence against him then having any commitment to a shared life with Mrs Sullman. Paragraphs (g) and (h) – The Care and Support of Children, and the Performance of Household Duties 184 Mrs Sullman did practically all the cooking, and practically all the household duties. She did practically all of the cleaning, and all of the laundry. Notwithstanding that the Ingleside property was a large home, set on five acres of land, she did these tasks without any form of paid assistance. She mowed the lawns (a task which takes approximately five hours) kept the pool clean, kept the garden tidy, kept the tennis court swept, and kept the stable area in order. 185 When Mr Sullman was living at Ingleside, they went shopping together, and Mr Sullman bought the wine. During these times they also shared the care of the children. The specific child care activities that Mr Sullman gives evidence about involved him in collecting the children from school regularly, taking them out without Mrs Sullman on numerous occasions, and engaging in various forms of games and leisure activities with them. In carrying out these activities, he was more involved with the boys than with Elizabeth – he had a difficult relationship with Elizabeth from before the time he moved back into the Ingleside house, and that relationship was never really repaired. Paragraph (i) – The Reputation and Public Aspects of the Relationship 186 During her marriage to Mr Meyer, Mrs Sullman had used the "Meyer" surname. 187 Mrs Sullman was known throughout the time after Mr Sullman moved back into the house as "Mrs Sullman". They shared a bedroom on the various occasions I have earlier mentioned. 188 Mr Bailey gives evidence that he recalls meeting Mr and Mrs Sullman on social occasions on about half a dozen times over four years after October of 1995. He recollects occasions when he and his wife had dinner with Mr and Mrs Sullman at the L'Incontro Restaurant in North Sydney, the Freshwater Restaurant at Harbord, and the Regent Hotel in Sydney. He also went to their home for Sunday lunch (see paragraph 143 above). He is hazy about the dates of all of these events. They created in him the impression that Mr and Mrs Sullman were together again as a couple. 189 They had social contacts with other couples besides Mr and Mrs Bailey. They invited Mr and Mrs Allen to a barbeque at their home, and Mr and Mrs McAlister to some sort of a social function. They would often attend sporting matches that their children were playing in, and chat to other parents who were there. They dined with Mr and Mrs Tenukest at a restaurant on more than one occasion. They dined with Mr and Mrs Wiggins, and Mr and Mrs Wilson. After January 1996 they stayed at the home of Mr and Mrs Wilson at Eden. 190 An examination of the incomplete collection of bank and credit card statements in evidence from Mr Sullman shows that on 11 different dates (itemised in Schedule 1 to this judgment) there is a charge for a restaurant called Tony D'Amici at Mona Vale. Mrs Sullman says that those charges usually related to visits made to the restaurant with the children, but once with friends. 191 Going on holidays with their children, at least on those occasions when Mr Sullman was substantially living at Ingleside, and dining out with their children, was part of the public appearance of being a couple. Likewise the visits, to relatives and friends, which they made together in England on their 1996 trip, and Mrs Sullman accompanying Mr Sullman to his sister-in-law's funeral in January 1997. 192 In 1996 (and possibly later) Mrs Sullman wore, on the fourth finger of her left hand, a ring which Mr Sullman gave her. Though she denies that it was an engagement ring, it could easily have created the wrong impression in people who saw it. 193 In discussions which Mr Sullman had with Mrs Tenukest after June/July 1997, he gave her the impression that he was re-joining the house to be a member of the family again. Mrs Sullman's view expressed to Mrs Tenukest was sceptical about this T 392. Mrs Tenukest was a particular friend and confidante of Mrs Sullman. I would not expect Mrs Sullman to express her scepticism to a person who was not such a close friend. Paragraph (a) – The Duration of the Relationship 194 As a matter of construction of section 4(2)(a) of the Property (Relationships) Act 1984, "the relationship" cannot mean "the de facto relationship". The structure of section 4(2) is that one is required to take into account such of the matters listed in paragraphs (a) to (i) inclusive as might be relevant in the particular case, for the purpose of determining whether a de facto relationship exists. If "the duration of the relationship" is a factor to be taken into account in determining whether a de facto relationship exists, that means one must be able to tell what is "the duration of the relationship" before one has decided whether or not there is a de facto relationship. Thus "the relationship" in section 4(2)(a) must have a different meaning to "the de facto relationship". It seems to me that it involves a looser notion, under which the Court should take into account the duration of what is asserted to be the relationship, though also taking into account how the other factors listed in paragraphs (b) to (i) of section 4(2) might have changed during the course of that asserted duration of relationship. Approaching the matter in that way, Mr Sullman asserts that the duration of the relationship was from November 1995 to the beginning of August 1999, ie about three and three quarter years. However, during that time the relationship underwent the various changes which I have earlier outlined. Another Relevant Factor - Consulting Mr Joel 195 At a time which Mr Sullman puts at 1996, and Mrs Sullman puts at November/December 1995, they went to see Mr Joel, a lawyer who does immigration work. Before the meeting, Mr Sullman said to Mrs Sullman: "I need some advice on my immigration status and how I can remain in Australia. If I marry you I might be able to stay in Australia. I want you to come and see Adrian Joel with me." 196 When they went to see Mr Joel he told them that the settlement document which Mrs Sullman had entered into with Mr Meyer was poorly worded from an immigration point of view, because it stated that Mrs Sullman and Mr Meyer had separated within two years of provisional permanent residence having been granted. Mr Joel said that if Mrs Sullman were to divorce Mr Meyer before obtaining citizenship, the residency status (it is not clear whether this is the resident status of Mr Sullman, Mrs Sullman, or both of them) could be revoked. He advised that divorce proceedings should not be started for a further two-year period, and only after Mrs Sullman had become a citizen. 197 That this advice was given lessens the significance that there otherwise might have been in Mrs Sullman taking no steps to divorce Mr Meyer, and in Mr and Mrs Sullman failing to re-marry, during that two-year period. However, once Mrs Sullman had obtained Australian citizenship in July 1998, it seems to me that the failure of Mrs Sullman to divorce Mr Meyer, and to re-marry Mr Sullman, is a relevant factor (though of comparatively slight weight) to be taken into account in deciding whether a de facto relationship then existed. I am fully conscious that a de facto relationship involves the parties living together without marrying, but Mr Sullman began this particular relationship by professing a desire to re-marry Mrs Sullman, and at the time of the visit to Mr Joel, Mr Sullman at least still considered it a real possibility. 198 Mr Sullman, during a time he was acting for himself in preparing this case, asked Mr Joel to release documents relating to that advice. Mr Joel declined, on the ground that Mrs Sullman was his client. Mr Sullman requested Mrs Sullman's solicitor to waive privilege, and that request was refused. In cross-examination Mrs Sullman denied that the reason for refusal was because she was concerned that Mr Joel's documents might contain some admission that might be detrimental to her case in the proceedings. I am prohibited from drawing any inference, to the same effect as the suggestion that was put to Mrs Sullman. 'Cross on Evidence', 5th Aust Ed says at paragraph [1215]: "Fourthly, the rule in Jones v Dunkell does not apply where the witness not called is the party's solicitor, at least with the evidence which is in consequence not given is privileged and that the privilege has not been waived. This is because if the solicitor gave evidence on the subject of privileged communications the solicitor would waive his clients privilege, and the court will not permit the destruction of the privilege by this back door." De Facto Relationship – Conclusion 199 Taking into account all of these factors, a de facto relationship commenced between Mr and Mrs Sullman when Mr Sullman moved back into the Ingleside home on 7 November 1995. 200 In Howland v Ellis [2001] NSWCA 465 Stein JA (with whom Meagher JA and Ipp AJA agreed) held at [20] that: "…more than a mere physical separation is required for a de facto relationship to come to an end. The physical separation by the parties must be accompanied by an intention on the part of either partner to permanently end the relationship." 201 Thus, once a de facto relationship had commenced, it would take more than the physical separations that there were between Mr and Mrs Sullman from time to time to bring that relationship to an end. 202 In Howland v Ellis at [23] Stein JA (with whom Meagher JA and Ipp AJA agreed) approved the statement of Cohen J in George v Hibberson [1987] DFC ¶ 95-054 at 75,608, "The use of the words " living or having lived together as husband and wife on a bona fide domestic basis " suggest a degree of permanence which will not cease merely because one party separates for the purpose of going on holidays or going on business. Nor would it cease if, after an argument, one party moved out or stayed elsewhere for a short while or went home to his or her family, if there was an intention to return and if there was a reasonable indication of that intention." 203 His Honour also quoted with approval the remark of Mahoney JA in Hibberson v George (1989) 12 Fam LR 725 at 740 that, "The essence of the present relationship lies, not in law, but in a de facto situation. I do not mean by this that cohabitation is essential to its continuance: holidays and the like show this. But where one party determines not to " live together " with the other and in that sense keeps apart, the relationship ceases, even though it be merely…to enable the one party or the other to decide whether it should continue." 204 In my view, the de facto relationship came to an end when Mr Sullman left for England in November 1997. He had left Mrs Sullman for England, making it clear that he intended to live there for the foreseeable future. He left her with no ongoing financial provision apart from the American Express Card, and with the mortgage on the house in arrears. He had, just before his departure, told Mrs Tenukest that his heart lay with Miss Sullivan. He had every reason to believe that (as actually happened) Mrs Tenukest would pass this information on to Mrs Sullman. In my view he had an intention to permanently end the de facto relationship with Mrs Sullman. He recognised that he would need to have ongoing communication with Mrs Sullman, because of their shared responsibility for their children, but they were not going, thenceforth, to live together as a couple. 205 If I am wrong in that view, the de facto relationship came to an end on 12 January 1998. By that time Mr Sullman had left for England, making it clear that he intended to live there for the foreseeable future. On his own account (see paragraph 87 above) it was on that day that he was told by Mrs Sullman that she did not intend to come to England with the children once he had organised a job and somewhere to live. Mrs Sullman's evidence that it was on 15 September 1997 that she told Mr Sullman that she and the children would not be going to England, is evidence that I have earlier said I am not sufficiently persuaded to accept as establishing that that conversation occurred at that time. However, I can use it in combination with Mr Sullman's account of the conversation of 12 January 1998, and evidence of other surrounding circumstances, to find that, on 12 January 1998, Mr Sullman was aware that it was not Mrs Sullman's intention to bring the children to join him in England. If it is the effect of the evidence of both parties that by the end of the conversation on 12 January 1998, Mr Sullman would have known that it was not Mrs Sullman's intention to bring the children to join him in England, it would be wrong for the Court to reach a conclusion contrary to the combined effect of the evidence of the two of them. 206 The terms in which Mr Sullman, in March 1998, invited Mrs Sullman to come to Thailand included the proposal that they meet there to "sort out what we are going to do". This is an acknowledgement that, by that time, they needed to make a decision about what their future would be. 207 The fact that after he left in November 1997 it was 22 weeks or so before they met again – far longer than they had previously spent apart in the period since November 1995 - and the fact that after that time, their time together was predominantly in holiday destinations, with little time spent at Ingleside, supports the view that his departure in 1997 marked a significant change in their relationship. Further, the abrupt change in the manner in which Mr Sullman made financial provision for Mrs Sullman and their children, when he left in November 1997 is consistent with the relationship ending then. 208 It is submitted for Mr Sullman that when he left in 1997 he had no practical choice – he had exhausted his ready money, and had failed in his attempt to find a job in Australia. Accepting that he was under financial compulsion to leave Australia, the important fact, for present purposes, is that he did leave Australia, and began living apart from Mrs Sullman. 209 The de facto relationship having ended, none of the later periods of cohabitation occurred in circumstances which amounted to a de facto relationship (within the meaning of the definition introduced in 1999) recommencing. 210 Because there was a de facto relationship within the meaning of the 1999 amendments between Mr and Mrs Sullman, but that relationship had ceased prior to 28 June 1999, section 6(2) of the Property (Relationships) Act 1984, as amended by the 1999 amendments, has the effect that the 1999 amendments do not apply to this relationship. (See paragraph 46 above). Thus one needs to look to the De Facto Relationships Act 1984 to find the relevant legislative provisions. The amendments to that Act which immediately preceded the 1999 amendments were made in 1992. Thus, it is the version of the Act incorporating those 1992 amendments which governs the present case. 211 I have earlier set out the definitions of "De Facto Partner" and "De Facto Relationship" which applied under the 1984 Act. Applying the test which Powell J set out in D v McA to determine the existence of a de facto relationship, there is no relevant difference to the reasoning I have already engaged in to determine whether, and if so for how long, a de facto relationship existed under the Act with the 1999 amendments. PART B – ADDITIONAL FACTUAL FINDINGS Events After August 1999 212 In October 1999 Mr Sullman went to the Ingleside property, and noticed a "For Auction" sign on the home, indicating that the auction would occur at the end of October 1999. 213 The Ingleside home was auctioned on 23 October 1999. It did not sell at the auction, but negotiations after the auction resulted in contracts being exchanged on 29 October 1999 for sale at a price of $2,100,000. 214 On or soon after 3 December 1999 Mr Sullman lodged a caveat against the title to the Ingleside property. The caveat claimed a beneficial interest in half of the fee simple, said to arise from indirect contributions to the property. These proceedings began on 14 December 1999, when Mrs Sullman sought an order that the caveat be removed. Settlement of the sale of the house took place on the basis that part of the proceeds of sale were held in trust by Mrs Sullman's solicitor to await the outcome of the present action, with Mrs Sullman to receive the income earned on it in the meanwhile. 215 On 10 December 1999 Miss Sullivan filed a "Notice of Matrimonial Home Rights under the Family Law Act 1996" against the title of the Robin Hill property Ex D5, page 134. 216 By 2 February 2000 Miss Sullivan had instructed solicitors in England to act for her in connection with a divorce from Mr Sullman. 217 On 5 December 2000 the Bournemouth County Court issued a certificate that Mrs Elaine Sullman was entitled to a decree of divorce from Mr Sullman, on the grounds of his unreasonable behaviour. 218 On 4 October 2001 the Bournemouth County Court made orders Ex CC3 which made provision for the Robin Hill property to be transferred to Mrs Elaine Sullman, sold, and for Mrs Elaine Sullman to receive £211,500, or 53.95% of the sale proceeds, which ever is greater. The balance of the sale proceeds were to be paid to Mr Sullman. 219 On 30 October 2000 Mr Sullman filed a cross-claim in the present proceedings, which was the first document filed in the proceedings to make a claim under the Property (Relationships) Act. This was done following a decision of Master Macready on 20 October 2000, in which the Master gave leave for Mr Sullman to file a cross-claim in the caveat proceedings, seeking relief under the Property (Relationships) Act, within 7 days of that date. Value of the Ingleside House 220 The Ingleside house was purchased by Mr and Mrs Sullman in 1991 for around $2,000,000 – see paragraph 9 above. 221 In a summary of his financial position, which Mr Sullman prepared prior to September 1992, he attributed a value of $2,000,000 to Ingleside Ex D5, page 442. 222 In February 1993 it was valued, for the purpose of Family Court proceedings, at $1,200,000 Ex D5, page 145-206. After the February 1993 valuation, but before September 1995, some improvements were made to the property – an outside cabana was made into a room, some verandah balustrade wooding was replaced, and there was new guttering. The cost, or added value, of these improvements is not known T 201. The house was valued at $1,500,000 in September 1995, when valued for the purpose of the proposed mortgage to MLC Ex D5, page 374-381. It was valued in July 1999, for the purpose of the proposed mortgage from Flexi Mortgage, at $2,300,000 Ex D5, page 339-358. 223 In March 1998 the property was passed in at auction after the bidding reached $1,825,000. In July 1998 Mrs Sullman received a written offer to purchase the property for $1,850,000 Ex D5, page 326. 224 Contracts for sale of the property, at a price of $2,100,000, were exchanged on 29 October 1999. Where the Proceeds of Sale of the Ingleside Property went 225 On 23 November 1999 twenty five percent of the deposit (or $52,500) was released to Mrs Sullman. From that amount she paid the following: Repayment of personal loan from Donna Tenukest $13,000.00 School fees to Knox (arrears) $13,611.55 Removalist expenses $4,000.00 2 weeks rent in advance and bond of 4 weeks rent $3,480.00 Travel costs for holiday to England $5,881.80 TOTAL $39,973.35 226 The first three items in this list (totalling $30,611.55) are amounts from the proceeds of sale which Mrs Sullman was not able to keep and use in the future. 227 An additional amount of $50,000 was deducted from the deposit, on settlement, for agent's commission. Thus, of the total deposit of $210,000, Mrs Sullman was able to keep and use in the future, the amount of $129,388.45. 228 The amount payable on settlement was $1,891,291.97. It was disbursed as follows: Pittwater Council – council rates $5,432.90 Sydney Water – water rates 150.55 NRMA Building Society Limited (discharge of mortgage) 286,285.95 MC Griffith & Co – legal costs 3,100.00 Mrs Sullman 1,596,322.97 TOTAL $1,891,292.37 229 Mrs Sullman says that the amount paid to NRMA in discharge of the mortgage was broken up as follows: Investment loan - $254,181.38 Bridging loan $32,101.57 (There is a difference of $3.00 between the total of these amounts, and the amount stated in the immediately preceding paragraph as having been paid to NRMA. The difference is immaterial.) PART C - LEGAL TESTS TO APPLY TO ANY ADJUSTMENT OF PROPERTY INTERESTS Prerequisites to Making an Order 230 Section 15 of the De Facto Relationships Act 1984, as in force immediately before the 1999 amendments provided: "(1) A court shall not make an order under this Part unless it is satisfied: (a) that the parties to the application were or either of them was resident within New South Wales on the day on which the application was made, and (b) that: (i) both parties were resident within New South Wales for a substantial period of their de facto relationship, or (ii) substantial contributions of the kind referred to in section 20(1)(a) or (b) have been made in New South Wales by the applicant. (2) For the purposes of subsection (1)(b)(i), the parties to an application shall be taken to have been resident within New South Wales for a substantial period of their de facto relationship if they have lived together in the State for a period equivalent to at least one-third of the duration of their relationship." 231 Mrs Sullman was resident within New South Wales on the day in which the present application was made. Thus section 15(1)(a) is satisfied. 232 Mr and Mrs Sullman lived together in New South Wales for a period equivalent to at least one third of the duration of their relationship. Thus, section 15(1)(b) is also satisfied. 233 Section 17 of the De Facto Relationships Act 1984 provides another prerequisite to the making of any order. Section 17, in the form it had immediately before the 1999 amendments, is as follows: "(1) Except as provided by subsection (2), a court shall not make an order under this Part unless it is satisfied that the parties to the application have lived together in a de facto relationship for a period of not less than 2 years. (2) A court may make an order under this Part where it is satisfied: (a) that there is a child of the parties to the application, or (b) that the applicant: (i) has made substantial contributions of the kind referred to in section 20(1)(a) or (b) for which the applicant would otherwise not be adequately compensated if the order were not made, or (ii) has the care and control of a child of the respondent, and that the failure to make the order would result in serious injustice to the applicant." 234 I am not satisfied that Mr and Mrs Sullman lived together in a de facto relationship for a period of not less than two years. There is clear evidence from Mr Sullman himself that he moved into the property on 7 November 1995 T.70. I have summarised above in paragraph 70 and following the evidence about when he left in November 1997. I am not satisfied that he left on or after 7 November 1997. It follows that I am not satisfied that Mr and Mrs Sullman lived together in a de facto relationship for a period of not less than two years. 235 Section 17(2)(a) permits the court to make an order where there has been a de facto relationship for a period of two years or less, and "there is a child of the parties to the application." I see no reason to read these words down, so as to require the child to have been born (or perhaps conceived) during the period of the de facto relationship. The ordinary meaning of the words in section 17(2)(a) does not involve the meaning of "a child" being so confined. Nor can see any reason arising from the policy of the Act why the meaning should be so confined. 236 I conclude that, notwithstanding that I am not satisfied that Mr and Mrs Sullman lived together in a de facto relationship for a period of not less than two years, the prerequisite for making an order contained in section 17 has been satisfied, because section 17(2)(a) is satisfied. As the tests in section 17(2)(a) and 17(2)(b) are alternatives, there is no occasion for me to consider whether the test in section 17(2)(b) has been satisfied. 237 Section 18 of the De Facto Relationships Act 1984, in the form it had immediately before the 1999 amendments, provided: "(1) Except as provided by subsections (2) and (3), where de facto partners have ceased to live together as husband and wife on a bona fide domestic basis, an application to a court for an order under this Part shall be made before the expiration of the period of 2 years after the day on which they ceased, or last ceased, as the case may require, to so live together. (2) A court may, at any time after the expiration of the period referred to in subsection (1), grant leave to a de facto partner to apply to the court for an order under this Part (other than an order under section 27 (1) made where the court is satisfied as to the matters specified in section 27 (1) (b)) where the court is satisfied, having regard to such matters as it considers relevant, that greater hardship would be caused to the applicant if that leave were not granted than would be caused to the respondent if that leave were granted. (3) Where, under subsection (2), a court grants a de facto partner leave to apply to the court for an order under this Part, the de facto partner may apply accordingly." 238 Mrs Sullman's amended defence to cross-claim, filed on the first day of the trial, raised a defence In paragraph 30A(d) whereby, without admitting that there was ever a domestic relationship, she put in issue that the cross-claim was filed within two years after the date on which the relationship ceased. The filing of that amended defence did not give rise to any application, on Mr Sullman's part, for leave to apply for an order notwithstanding that the two-year period had past. 239 As I read section 18(1) the onus of satisfying the court that the application has been made before the expiration of two years from the date on which the parties ceased, or last ceased, to live together, lies on the person making the application. I am not satisfied that the application was made within that two-year period. 240 However, Master Macready had, on 20 October 2000, granted leave to Mr Sullman to file a cross-claim seeking relief under the Property (Relationships) Act within 7 days of the date of that judgment. 241 When the amended defence was filed in court, counsel for Mr Sullman submitted that this limitation point had already been dealt with, by this determination of Master Macready. The transcript records, T.1 "It was agreed that this matter would be dealt with at a later stage in the proceedings." The topic was never returned to. I treat that defence as abandoned. The Test for Adjustment of Property Interests in Section 20 242 Section 20 of the De Facto Relationships Act 1984, in the form it had immediately before the 1999 amendments, is as follows: "(1) On an application by a de facto partner for an order under this Part to adjust interests with respect to the property of the de facto partners or either of them, a court may make such order adjusting the interests of the partners in the property as to it seems just and equitable having regard to: (a) the financial and non-financial contributions made directly or indirectly by or on behalf of the de facto partners to the acquisition, conservation or improvement of any of the property of the partners or either of them or to the financial resources of the partners or either of the, and (b) the contributions, including any contributions made in the capacity of homemaker or parent, made by either of the de facto partners to the welfare of the other de facto partner or to the welfare of the family constituted by the partners and one or more of the following, namely: (i) a child of the partners, (ii) a child accepted by the partners or either of them into the household of the partners, whether or not the child is a child of either of the partners. (2) A court may make an order under subsection (1) in respect of property whether or not it has declared the title or rights of a de facto partner in respect of the property." 243 In Evans v Marmont (1997) 42 NSWLR 70, at 74 Gleeson CJ and McLelland CJ in Eq set out some propositions about section 20 which have now been established. "…it would not now be suggested that one should approach an application for adjustment of property interests by beginning with an assumption that an equal division of property is appropriate and then asking whether the circumstances of the case require some departure from that position: Mallett v Mallett (1984) 156 CLR 605. It would not now be contended that contributions of a de facto partner as homemaker and parent should be regarded as in some way inferior to the corresponding contributions of a spouse: Black v Black (1991) 15 Fam LR 109. It would not now be suggested that an appropriate way to value the contributions of a homemaker or parent is by reference to wage levels applicable to a domestic servant, or any other commercial provider of corresponding services or benefits ( Black v Black ). It is also established that it is important to give full and proper value to contributions of the kind referred to in par (b): ( Singer v Berghouse (1994) 181 CLR 201; Green v Robinson (1995) 36 NSWLR 96)." 244 Gleeson CJ and McLelland CJ in Eq said, of the process of decision making that the court uses under section 20 "…s 20 specifies, in par (a) and par (b), the matters to which the court is to have regard. As was pointed out above, those matters will ordinarily have to be considered, and a judgment as to what is just and equitable having regard to those matters will ordinarily have to be made, in a context, and that context may well include factors of the kind referred to by Hodgson J at first instance in Dwyer v Kaljo . However, par (a) and par (b) prescribe the focal points by reference to which the discretionary judgment as to what seems just and equitable must be made. They are not merely two matters, or groups of matters, which take their place amongst any other relevant considerations. It is by having regard to those matters that the court may adjust property interests in a just and equitable manner." 245 The "factors of the kind referred to by Hodgson J at first instance in Dwyer v Kaljo" (1987) 11 Fam LR 785, included: · whether the contributions of the plaintiff had been sufficiently compensated (which requires the Court to reach some view of the value of the contributions of the plaintiff, and some view of the value of what the plaintiff has received in return), · the financial circumstances of the parties (in particular the property of the parties at the time of hearing, because it is to this that any adjustment of interests has to be made), · the needs and means of the parties (though as subsidiary factors in deciding what is just and equitable in regard to the plaintiff's contributions), · the length of the relationship, · any promise or expectations of marriage, and · opportunities lost by the plaintiff by reason of the plaintiff's contributions. (Here I summarise the passage set out in Evans v Marmont at 75.) Their Honours also placed reliance in reaching the construction that they did, on the legislative history of the Act, including particularly that the Act was based upon a report of the New South Wales Law Reform Commission written in 1983, which saw deficiencies in how the law concerning constructive trusts (as then understood) applied to the property of people in de facto relationships. Construction of Section 20(1)(a) 246 The language of paragraph (a) requires the contributions of both of the de facto partners to be taken into account. This is because the legislature has quite deliberately used the plural "of the de facto partners". Further, it is the property of both partners, and the financial resources of both partners, which need to be taken into account. However, to qualify under paragraph (a) it is not any contribution which is made by a partner in the context of the de facto relationship which counts. It must be a contribution with a particular purpose or effect, such that it can properly be described as a contribution "to the acquisition, conservation or improvement of…property". This is consistent with the purpose of the Act when first enacted in 1984, to remedy deficiencies then perceived to exist in the law of constructive trusts as applied to de facto couples who acquired property during the course of the relationship. To apply paragraph (a) one needs to identify each item of property which has been acquired, conserved or improved, and identify what financial and non-financial contributions have been made, directly or indirectly and by whom, to each such item of property. It may be that the evidence in a particular case only enables this to be done in a fairly rough way, but the exercise must still be attempted. 247 Paragraph (a) requires the Court to have regard to the "contributions" made. I gave some consideration to what counts as a "contribution" for these purposes in Nguyen v Schieff [2002] NSWSC 151, at [105] – [109]: "In Roy v Sturgeon (1986) 11 NSWLR 454 Powell J at 466 took the view that the only contributions which the Court could look at in effective this exercise, were ones made during he period of the relationship. However, that view has since been departed from. Bryson J in Foster v Evans (1997) DFC paragraph 95-193 at 77,681 disagreed with it. In Jones v Grech [2001] NSWCA 208; (2001) DFC paragraph 95-234 Davies AJA at [24] and [26] and Ipp AJA at [77] and [82] and held that contributions made prior to the commencement of the de facto relationship could be taken into account. In Green v Robinson [1995] 36 NSWLR 96 Cole JA said, at 115-116: "Further, in assessing whether it will exercise the s.20 power to adjust regard is to be had to contributions made to the date of the application. The underlying presumption of s.20 is that the de facto relationship has ceased, the parties have joint or several property, and it may be just and equitable to adjust those existing property entitlements having regard to past contributions of the type described so that the financial relationship between the parties may be finalised: see s.19." While neither of the other Judges of Appeal in Green v Robinson agreed or disagreed with this proposition, I find it, with respect, persuasive. It is a logical corollary of the Court of Appeal, in Jones v Grech , rejecting the limitation that Powell J had found and permitting pre-relationship contributions to be taken into account. Further, when s 19 of the Act provides: "In proceedings for an order under this Part a court shall, so far as is practicable, make such orders as will finally determine the financial relationships between the de facto partners and avoid further proceedings between them." there is good reason to take any post-relationship contributions into account." 248 I would note, however, that there is a limit to how far section 19 can be taken in the present case. The Family Court has jurisdiction, which cannot be cut down by a State statute, to deal with ongoing disputes between Mr and Mrs Sullman concerning maintenance of children. Construction of Paragraph (b) 249 Because of the word "including" in the first line of paragraph (b), it is possible for a contribution to the welfare of the other de facto partner or to the welfare of the relevant family to be made in some capacity other than as homemaker or parent. Further, there is nothing in the language which requires contributions which count for the purposes of paragraph (b) to be non-monetary. It would be very arbitrary if financial contributions were excluded from paragraph (b). One task which paragraph (b) is unarguably designed to perform, is to permit the contribution made by a woman who stays at home to look after house and family to be taken into account in adjustment of property interests. It would be arbitrary in the extreme if a woman who chose to take paid employment, and to use all or part of her income to employ a housekeeper to do some of the tasks she would have done if she had stayed at home, could not have that contribution similarly recognised. 250 In my view, for one de facto partner to pay for housekeeping expenses is a contribution which falls within paragraph (b), even if the payment of those housekeeping expenses does not enable the acquisition, conservation or improvement of any item of property. Of course in that circumstance the question would arise of why the making of such a contribution made it "just and equitable" to adjust property interests. The point, for present purposes, is that such a contribution can fall to be considered under paragraph (b). 251 Consistently with the view that financial contributions can fall within paragraph (b), Brownie J has held that a payment for a holiday can be a payment towards the welfare of the parties, and so within paragraph (b) (Myers v Myers 21 October 1986; (1987) DFC ¶95-056). See also Evans v Marmont (1997) 42 NSWLR 70 at 96 per Priestley JA (a passage inconsistent in some respects with the decision of the majority in that case in the way it construes the word "having regard to" in section 20(1), but not cut down by the majority view in so far as it stresses the width of paragraph (b)). "Just and Equitable" 252 In Stephenson v State Bank of New South Wales Ltd (1996) 39 NSWLR 101, at 113, Sheller JA was considering section 66M Conveyancing Act 1919 (which provides, that where land is damaged between the time of contract and conveyance, the purchase price shall be reduced "by such amount as is just and equitable in the circumstances"). His Honour said: "The determination of what is just and equitable in the circumstances is not a matter of unfettered individual opinion, nor does it involve a discretion of an arbitrary kind: see Cominos v Cominos (1972) 127 CLR 588 at 599. As Kitto J observed in R v Commonwealth Industrial Court; Ex parte Amalgamated Engineering Union, Australian Section (1960) 103 CLR 368 at 383, the criteria are of a nature with which Courts are familiar. In Talga Ltd v MBC International Ltd (1976) 133 CLR 622 at 634, Stephen J, Mason J and Jacobs J, dealing with the issue raised for the court by the Banking Act 1974 (Cth) of whether it was just and equitable that a transaction should be treated as valid, said: "… The court will have before it an existing transaction replete with all its surrounding facts and circumstances and in their light will determine what is just and equitable. In doing so it will certainly be exercising a wide discretion that this is a commonplace of the curial process; the court will be bound to act judicially, exercising its discretion by reference only to such considerations affecting the transaction as, on an examination of the legislation, may be seen to be material to the decision which it is called on to make. Irrelevant matters, matters such as the plaintiffs instanced in the course of argument, which have no rational connexion with the policy of the regulations but would be expressive only of the personal predilections of the Court, cannot be allowed by it to play any part in its decision." 253 This approach is, it seems to me, applicable to section 20. PART D – IDENTIFYING THE CONTRIBUTIONS The Section 20(1)(a) Contributions 254 In the present case, the only property which was "acquired" by either Mr or Mrs Sullman during any period which could possibly be relevant, is the car, snooker table, boat, and Robin Hill. Counsel for Mr Sullman argues that the Ingleside home was "conserved" because Mr Sullman made contributions to the payment of the mortgage which meant that the property did not need to be sold immediately in 1995. Additionally, he argues that the Ingleside property was "conserved" because Mrs Sullman could not have afforded to live there without Mr Sullman paying housekeeping expenses. While it is common ground that there were no improvements of a physical or structural kind to the Ingleside property after November 1995, Mr Sullman contends that it has gone up in value between November 1995 and when it was sold, and that he should be entitled to part of that increase in value. Repayment of the Mortgage 255 The mortgage over the Ingleside property, which Mrs Sullman gave to MLC in October 1995, related to a loan facility which permitted repayments to be made of principal when the borrower wished, and also permitted further drawings to be made from time to time. I have analysed in paragraph 33 and following, what happened to the initial borrowing of $260,000. (While an amount of $260,000 was borrowed, the opening entry in the account shows a draw down of $259,666.30. The difference was made up by fees connected with the establishment of the loan.) 256 As well as the initial $260,000 which was borrowed in October 1995, there was a draw down of $50,000 of 30 December 1996. That $50,000 was paid into Mr Sullman's Commonwealth Bank account at North Sydney. There was a further draw down of $120,000 on 21 February 1997. This was paid to the joint account of Mr and Mrs Sullman with the ANZ Bank at Mona Vale. 257 Debits were also made to the account periodically for interest (so that the total interest charged over the life of the account was $76,554.22) and for fees (so that the total fees charged over the life of the account were $962.81). Thus, the total debits to the account over its life were $507,183.33. 258 Mrs Sullman made payments to the account totalling $269,908.88. This consisted of an amount of $9,728.40 paid on 20 March 1998 from bridging finance which Mrs Sullman obtained, amounts of $2,000 which she paid on three occasions (12 May 1999, 11 June 1999 and 12 July 1999) and the final payout of the loan after the property had been sold on 20 December 1999, in the sum of $254,180.48. 259 Mr Sullman made payments to the account totalling $237,274.45. 260 However, it would be misleading to deal with the mortgage account simply by reference to total debits and credits over its life. On 11 October 1996 there was a credit to the account of $22,892.85 (Mr Sullman's gambling winnings). On 29 November 1996 there was another credit to the account of $150,000, which was part of the proceeds of sale of Mr Sullman's Lend Lease shares. However, those amounts were fairly quickly taken out of the mortgage account, by the draw down of $50,000 made on 30 December 1996 and the additional draw down of $120,000 made on 21 February 1997. When Mr Sullman was explaining the deposits made into the ANZ Bank joint account he said that the deposit of $120,000 made to that account was one "which initially resulted from the sale of my Lease [sic] shares and went via the NRMA account to this account, and was deposited on 21st February 1997." Affidavit 21 November 2001, para 90. This seems to me a realistic explanation. In my view, the best way of analysing the mortgage account is to treat the draw downs on 30 December 1996 and 21 February 1997 as simply drawing out again the two deposits of 11 October 1996 and 29 November 1996, apart from the amount of $2,892.85. When deposits and withdrawals totalling $170,000 are contraed in this way, Mr Sullman's total payments to the mortgage account over its life become $67,274.45. 261 By the time of Mr Sullman's departure for England in early November 1997, after adding back the dishonour of the payment of $2,000 which he made at the end of October 1997, the balance of the mortgage account stood at $254,113.12. Thus, during the period of what I have found to be the de facto relationship, Mr Sullman had paid an amount of approximately $5,500 off the capital on the mortgage, and had met all interest payments. Ignoring for present purposes the $170,000 which he paid into the account and then took out again, his total payments over the period of the de facto relationship (for both principal and interest) were $47,274.45. Consistently with the view which I have earlier come to that contributions after termination of a relationship should be taken into account, however, Mr Sullman's contribution arising from payments of the mortgage account should be calculated by reference to his total payments to the mortgage account over its life. 262 I agree with the submission made for Mr Sullman that, if the mortgage had not been taken out, Mrs Sullman would have had to have sold the Ingleside home, and that when Mr Sullman made payments of the mortgage debt he was making a contribution to the conservation of that property of Mrs Sullman. While it is true that Mr Sullman had committed himself to join in the borrowing before the de facto relationship started, and the money borrowed had been drawn down before the de facto relationship started, all the amounts which Mr Sullman paid, were paid after the relationship had started. There is room for speculation about whether, if Mr Sullman was not prepared to join with Mrs Sullman in becoming a joint borrower, Mrs Sullman would have been prepared to pay Mr Meyer as much as $130,000. There is also room for speculation whether, if Mr Sullman had not been prepared to become a joint borrower, Mrs Sullman would have immediately sold the Ingleside property, purchased a cheaper home, and used the spare money so obtained to pay a settlement to Mr Meyer. Both these areas of speculation are, however, not helpful. What matters, it seems to me, is that in fact Mr Sullman, by making the mortgage payments, has made a contribution to the conservation of the asset. 263 The purpose of Mr Sullman incurring liability in connection with the mortgage loan also needs to be considered. Mr Sullman wrote to NRMA on 6 September 1999 saying: "The original loan was taken out so that my ex-wife could finalise a property settlement with her next husband, from whom she had also separated, without having to sell the family home, which had been our matrimonial home, and I agreed to provide the funds for servicing it so that the children, who had suffered enough trauma, could at least have some stability in their lives by continuing to live at their home." Ex D5, page 450 264 Mr Sullman confirmed in evidence before me that this statement was true T.183-184. This is a purpose which is not dependant on the existence of a de facto relationship. Again, however, it seems to me, that when one is identifying what contributions within section 20(1)(a) were made, the Court should look at what contributions were made in fact to the conservation of an asset of one of the parties. 265 The next question is what quantum of contribution he should be regarded as making. The main reason why Mr Sullman made periodic payments of the mortgage debt was to keep down the interest of the mortgage. However, for the purpose of identifying a contribution of the kind described in section 20(1)(a) of the Act, and for the purpose of deciding what is just and equitable between Mr and Mrs Sullman, it seems to me that the payments which Mr Sullman made off the mortgage should be treated as being applied first, to the repayment of the amount which was paid from the borrowed funds, and from which Mr Sullman derived a benefit in no way connected with the de facto relationship, namely the $32,800 of the borrowed money which was sent to Miss Sullivan. (How I come to that figure of $32,800 is explained in paragraph 35 above.) 266 As well, it would be appropriate to allocate a portion of the interest and fees which accrued on the loan to that sum of money which was sent to Miss Sullivan. $32,800 is 12.61% of the total $260,000 which was borrowed. The total of the interest and fees charged in connection with the account over its life was $77,517.03. An appropriate way of deriving a figure for the interest and fees attributable to the money paid to Miss Sullivan, is to take 12.61% of $77,517.03. That yields $9,775. Thus, the total of the principal, interest and fees attributable to the amount paid to Miss Sullivan is (ignoring cents) $42,575. When that amount is deducted from Mr Sullman's total payments to the mortgage over its life, Mr Sullman's mortgage repayments, in excess of those needed to repay the principal, interest and fees attributable to the money paid to Miss Sullivan, is $24,700. $24,700 is the amount of contribution which Mr Sullman made to the preservation of Mrs Sullman's assets by reason of making payments off the mortgage. Contributions to the Basic Household Expenditure 267 In paragraph 159 above I identified the basic household expenditure paid by Mr Sullman, exclusive of rent, school fees and children's medical insurance, during the period until Mr Sullman departed in November 1997 as being around $1,150 per week. In my view, it was only to the extent to which Mr Sullman made a contribution to this amount of basic household expenditure that it could be said that he was making a contribution to the conservation of Mrs Sullman's house. While he was making payments of school fees and children's medical insurance, these were amounts he was already obliged to pay. Insofar as he paid for holidays, and a standard of living which involved more than basic household expenditure, I do not think it can properly be seen as a contribution to the conservation of the property of Mrs Sullman. If Mr Sullman had not paid for holidays, and a more than basic standard of living, Mrs Sullman would still have remained living in the house, though enjoying a lesser standard of living while living there. 268 For ease of calculation in calculating these contributions, I shall treat the de facto relationship as one which lasted two years. At $1,150 per week, the basic household expenditure during that period would be $119,600. 269 From the proceeds of the MLC loan, after Mrs Sullman had paid out Mr Meyer and her legal expenses, and after Mr Sullman had paid the $32,800 to Miss Sullivan, an amount of $84,024 remained. (Paragraph 33 above shows that $93,000 of the proceeds of loan was paid to Mr Sullman, $23,824 to Mrs Sullman, and from his $93,000 Mr Sullman paid $32,800 to Miss Sullivan). That $84,024 is an amount which Mrs Sullman should be treated as having entirely repaid, when the mortgage was discharged on settlement of sale of the house. I say this because the contributions that Mr Sullman made to repayment of the mortgage have already been taken into account. The $84,024 should be deducted from the total amount of the basic household expenditure over those three years, for the purpose of ascertaining Mr Sullman's contribution. Deducting this amount of $84,024 in this way reflects the reality that, during the period between when Mr Sullman moved back into the house and when he left for England in November 1997, the family was living off capital. While the loan from MLC was initially a joint borrowing of Mr and Mrs Sullman, it is Mrs Sullman who has, in fact, repaid most of it, from the proceeds of sale of the Ingleside house. 270 As well, Mrs Sullman had around $1,200 in a bank account at the commencement of the relationship, and nothing in a bank account at the end of it. That $1,200 should also be deducted from the amount of basic household expenditure to ascertain Mr Sullman's contribution to it. The result is that Mr Sullman should be treated as having contributed to the basic household expenditure the sum of $(119,600 - 84,024 - 1,200) = $34,376. Other Items 271 As well, Mr Sullman is entitled to a credit for the purchase of the boat, and the snooker table, in the sum of $19,000. 272 While the Toyota Landcruiser is clearly an asset acquired by the parties during the course of the relationship, title to it is in the name of Mr Sullman. There is no cross-application, by Mrs Sullman, in the present proceedings, for an order transferring any of Mr Sullman's assets to her. Even though Mr Sullman has made a contribution to the purchase price of the Toyota, it is not the kind of contribution which I can reflect in an order made under section 20, to transfer some of Mrs Sullman's assets to Mr Sullman. Mr Sullman already has the contribution which he has made to the purchase price recognised, in his proportionate interest in the beneficial title to the motor vehicle. No submission was made to the effect that Mr Sullman made a contribution by providing the use of the motor vehicle. Nor was there any evidence about the value of providing the use of the motor vehicle, which could have founded any such submission. 273 Thus, Mr Sullman's total contributions, of a kind which fall under section 20(1)(a), and which need to be taken into account in deciding what order to make under section 20, are: Mortgage repayments $24,700 Contributions to basic household expenditure $34,376 Boat and snooker table $19,000 TOTAL $78,076 The Section 20(1)(b) Contributions 274 In the evidence, two different types of attempt were made to cast light on the amount which Mr Sullman had expended for the benefit of Mrs Sullman and the children, beyond paying basic household expenditure, school fees and medical insurance for the children. One of these sought to look at the extent to which Mr Sullman had suffered a decline in net assets since the relationship began. The other sought, by analysis of particular payments from bank accounts and credit or charge card accounts, to identify the amount. Both of those attempts failed to identify any specific amount of expenditure which fell within section 20(1)(b). First Possible Way of Quantifying Section 20(1)(b) Contributions - The Diminution of Assets Approach Mr Sullman's Assets 275 Mr Sullman lists his assets, liabilities, and financial resources in August 1995 as follows: " Assets Shares and prospective termination payments $852,494.00 Roundwood Park property in UK $200,000.00 Interest in Trust $722,656.00 Liabilities Nil Financial Resources Superannuation $193,329.10 Entitlement to pension from Abbey Life NK Entitlement to pension from Skandia Life $116,042.00" 276 It is not clear to me on what basis that value is ascribed to the Roundwood Park property. Mr Sullman had purchased that property in 1990 for his brother Mr Brian Sullman, and that brother's wife. The cost then was around £222,500 Ex D5, page 467; cf Affidavit 7 June 2001, page 44. Some renovations and alterations were made to the property to permit Mr Brian Sullman's wife (who was confined to a wheelchair) to use the property. Those renovations and alterations may have taken the total cost as high as £300,000 Affidavit Mrs Sullman 7 June 2001 page 9; Ex D5 page 240, para (c). In June 2000 the property was sold for £400,000 Ex CC50. On 7 January 1991 Mrs Penelope Sullman (who was then the owner of the Roundwood Park property) executed a licence agreement whereby Mr Brian Sullman and his wife were granted a personal licence to occupy the property until the last of them died. The Roundwood Park property was awarded to Mr Michael Sullman in the 1993 divorce settlement. Mr Michael Sullman did not execute any fresh licence agreement in favour of Mr Brian Sullman or his wife. Whatever the legal status of Mr Brian Sullman's rights, (and on the material before me they look to be fairly precarious) Mr Michael Sullman regarded himself as having a responsibility to allow Mr Brian Sullman and his wife to live there. 277 At the time of commencement of the de facto relationship in November 1995 Mr Sullman's assets included, as well, about $69,000 standing to the credit of his Commonwealth Bank account at North Sydney. He had by then incurred a liability for half of the $260,000 borrowed by MLC. 278 Over a period from October 1995 to May 1997 Mr Sullman sold the shares, and received the termination payments, which he had included in his assets as at August 1995. The amount he received was made up as follows: Shares Sold November 1996 $323,612.43 Expenses reimbursement October 1995 $29,802.00 Cash payment 10 January 1996(after tax) $287,966.08 Proceeds of Employee Investment Trust January 1996 – after tax $54,096.90 Rental subsidy February 1996 $61,967.90 TOTAL $757,445.31 Thus, the amount he actually received for shares and termination payments was about $95,000 less than the amount he had estimated it as being in August 1995. That diminution in assets (if it is so regarded) is not attributable to any expenditure for Mrs Sullman or the children. In addition, after the sale of Lend Lease shares in November 1996 Mr Sullman retained a small number of Lend Lease shares. These remaining shares were later sold (at a time the evidence does not disclose) for around $4,000. 279 The superannuation which Mr Sullman had listed as a financial resources as at November 1995, was received by him in April and May 1997, in the sum of $193,329.10. He cashed his entitlement to a pension from Skandia Life in July 1997, receiving $116,042.00. 280 The pension due from Abbey Life was not cashed. As at January 2002 it continued to be paid to Mr Sullman periodically Ex D5, page 440. The latest evidence about the amount of pension, is a letter which Mr Sullman received in April 2000 saying that thenceforth the rate of the pension would be £274. That letter is not completely clear about how frequently that amount is paid. Ex D5, page 438 It seems that it is paid annually Ex D5, page 96 item 7; Ex D5, page 106 note 1. As well, as at February 2000 Mr Sullman had (and I would infer, still has) an entitlement to receive a pension from Norwich Union. In February 2000, the amount of that pension was $269 per week Ex D5 106, note 1. I infer that his present income from pensions is not less than it was in February 2000, namely $282 per week. 281 Since November 1995, Mr Sullman has raised money as follows: · December 1997, £50,000 from Elaine Sullivan in return for a 25% interest in Robin Hill · February 1998, £60,000 by mortgage of the Harpenden property · May 1999, £40,000 by further mortgage of the Harpenden property · April 1999, £65,000 borrowed from Brian Sullman. Mr Sullman says this was "So that I could make working capital available to the UK business venture". Affidavit 21 November 2001, para 84.3 £60,000 of this was lost when the venture failed Affidavit 21 November 2001, para 98. · A further £35,000 in the course of 1999 borrowed from Brian Sullman secured on the Harpenden property. 282 In November 2000 Mr Sullman gave evidence that his financial position was as follows: Assets Robin Hill $900,000.00 Bank account with Commonwealth Bank Negligible Motor vehicle (in Wife's possession) $30,000.00 Own Furniture (in Wife's possession) $5,000.00 TOTAL ASSETS $935,000.00 Liabilities Overdraft from Lloyds Bank E $30,000.00 Credit card liability $155,000.00 Loan from Masterloan Liverpool E $37,500.00 Various personal loans E $60,000.00 Legal fees E $5,000.00 Alleged monies owed to Penny Sullman but denied $48,532.71 TOTAL LIABILITIES $336,032.71 Contingent liabilities: Monies payable to Elaine Sullivan on property settlement/divorce including 25% of value of Robin Hill property $243,750 plus Further legal fees for Family Court and Supreme Court proceedings in Australia and matrimonial proceedings in UK NK Real estate agent fees and conveyancing costs NK LIKELY NET ASSETS (AFTER CONTINGENT LIABILITIES ARE DEDUCTED) NIL Financial Resources Nil 283 The credit card liability of $155,000 was incurred by Mr Sullman in the year up to November 2000. Mr Sullman says that during that year he existed by utilising the credit on his various credit cards. The debt of $155,000 is spread over six different credit cards. 284 Since then his financial position has worsened as a result of the property settlement in his divorce from Mrs Elaine Sullman. As well, there are charges over Mr Sullman's interest in the Robin Hill property for legal fees, the quantum of which is not stated in evidence. He has received advice from taxation accountants in England, that he may well have a liability of the order of £90,000 for capital gains tax, on the sale of the Harpenden property and Robin Hill. I gather that no assessment has issued in connection with this capital gains tax, and that capital gains tax liability will attach to the Robin Hill property only in the event that the taxation authorities hold that it was not the matrimonial home of Mr Sullman and Mrs Elaine Sullman. As well, he has a liability to pay Mrs Sullman costs in matter number 91776/01 of this Court. A certificate of taxation of those costs issued on 24 December 2001, in the sum of $17,747.54. Mrs Sullman has made application to register a judgment for those costs in the Local Court Ex D4. 285 While undoubtedly Mr Sullman has suffered a very significant loss of assets since November 1995, nothing like all that loss is attributable to payments made for the benefit of Mrs Sullman and the children. There are four different types of expenditure, which have reduced his net assets, but which do not amount to a contribution to the welfare of the family constituted by Mr and Mrs Sullman and their children. · There were significant payments to Miss Sullivan and Lawrence. The Robin Hill property was purchased for them. They received regular payments of maintenance (which the evidence allows one to quantify). They also received other benefits, like payment for holidays (which the evidence does not allow one to quantify). Mr Sullman has not produced the entirety of the records of his expenditure over the period since November 1995. In particular, there are significant gaps relating to periods when he was not living at the Ingleside property. In these circumstances the evidence does not permit one to quantify the total reduction in his assets, resulting from payments for the benefit of Miss Sullivan and Lawrence. · Inevitably there would be amounts which Mr Sullman spent for his own benefit. His expenses in clothing himself, and his living expenses (at least during those periods when he was away from the family) could not be said to amount to a contribution to the welfare of Mrs Sullman or to the welfare of the family constituted by Mr and Mrs Sullman and their children. The quantum of these amounts is not known. · Mr Sullman expended very large amounts in gambling. The quantum is unknown. · Mr Sullman expended money on alcohol for his own consumption. The quantum is unknown. 286 I will deal in more detail with these last two sinks into which his money flowed. Mr Sullman's Gambling 287 A casino opened in Sydney on 13 September 1995. In relation to that casino Mr Sullman gave evidence: "I never went there once in the years 1990 to 1995 because it didn't even exist. I hardly went there in 1996. I went there regularly in 1997, a couple of times in 1998, and not at all in 1999." 288 On 20 November 1996 Mr Sullman became a registered player at the Sydney Casino. At the beginning of 1997 he became a member of the Endeavour Room. 289 The evidence includes numerous bank records and credit card statements of Mr Sullman and Mrs Sullman. However, nothing like all bank statements and credit card statements, which relate to the period November 1995 to August 1999, are in evidence. Those statements which are in evidence, contain some entries for automatic teller machine withdrawals or other debits to a credit card which, on their face, show a connection with expenditure at casinos. Schedules 2 to 6 to this judgment identify those entries. Those schedules can be summarised as follows: YEAR DAYS WHEN SYDNEY CASINO VISITED DAYS WHEN NON-SYDNEY AUSTRALIAN CASINO VISITED 1995 5 2 1996 11 0 1997 47 (plus possibly an extra 2) 2 1998 0 0 1999 1 4 2000 2 2001 (to 28 November) 13 Total withdrawals August to October 1995 $1,600 Total withdrawals November 1995 to July 1999 $66,350 Total withdrawals August 1999 to November 2001 $10,180 290 The amounts which are identifiable from the bank statements, and card statements, as having been withdrawn at a casino are not the total amount which Mr Sullman expended in gambling. The accounts contain many withdrawals, usually of large round sums, which are unexplained. For example, the ANZ joint account of Mr and Mrs Sullman contains the following withdrawals over a two-month period which are unexplained. DATE AMOUNT 28 January 1997 5,000 19 February 1997 10,025 20 February 1997 5,000 24 February 1997 10,000 24 February 1997 10,584.10 25 February 1997 8,000 27 February 1997 8,000 27 February 1997 15,000 28 February 1997 8,000 5 March 1997 8,000 5 March 1997 1,000 6 March 1997 2,100 12 March 1997 1,000 12 March 1997 1,000 12 March 1997 1,500 24 March 1997 5,000 TOTAL 99,209.10 291 Further, as I have said, nothing like all the bank statements and credit card statements which relate to the period November 1995 to August 1999 are in evidence. The schedule, which I have summarised in paragraph 289 above, can be regarded as showing nothing more about the extent of Mr Sullman's gambling than a demonstrable minimum. It also shows that the evidence he gave about the frequency of his visits to the Sydney Casino (paragraph 287 above) is incorrect. It should, of course, also be borne in mind that withdrawals for the purpose of gambling are not necessarily the same as gambling losses. 292 Mrs Sullman gives evidence (which Mr Sullman does not deny) that on a number of occasions during the period 1996 to 1999 she has observed large wads of cash after Mr Sullman has returned from the casino in the morning, and that she has also observed these wads of cash soon disappear. 293 Mr Sullman gave evidence as follows: "Q. The truth of the matter is you, like all habitual gamblers, finished up substantially behind, isn't it? A. I'm not a habitual gambler. This was a period of time in 1997 when I went regularly to the casino. I did finish up behind, yes. Q. Many thousands of dollars behind, didn't you? A. That would be true, yes. Q. Indeed tens, if not hundreds, of thousands of dollars behind, didn't you? A. I didn't keep account, tens would be true. Q. And it could well be in the hundreds? A. Not hundreds, no. Q. You don't know though, do you? A. Not hundreds. Q. Could be over a hundred thousand, couldn't it? A. It could be, yes. Q. And that's in 1997, is that right? A. No, that's overall. When I say the only time I went regularly to the casino. I have been to casinos and so has Penny all our lives." 294 As the schedules show, Mr Sullman has, on occasion, visited not only the Sydney casino, but also casinos in Adelaide, Melbourne, and the Gold Coast. While on the long overseas holiday from July to October 1996, Mr Sullman attended casinos in Southampton, on board the ship on the cruise of the Aegean Sea, at the MGM Hotel in Las Vegas, and on board the ship cruising from San Francisco to Alaska. His gambling in Las Vegas enabled him to send $22,892.52 to MLC, to be credited to the mortgage loan account. The next year he spent from 31 August 1997 to 6 September 1997 at Las Vegas, receiving complimentary accommodation and meals – see paragraph 67 above. It is unlikely that he would have been offered complimentary accommodation and meals unless he was already known to the management as a gambler prepared to spend large sums. 295 In the spring of 1998 Mrs Sullman received a telephone call from Mr Sullman at about 2.00am. Mr Sullman said that he was at the police station, that there had been a mix-up, and that he had been accused of stealing someone's chips. On 20 October 1998 the operator of the casino wrote to Mr Sullman, stating that it had considered his request that an exclusion order issued to him under the Casino Control Act be reviewed, and that it had decided that the exclusion order should stand. Mr Sullman was subsequently charged by the police with larceny. He pleaded not guilty, and after a defended hearing was found not guilty. 296 At the end of 1999 Mr Sullman, Miss Sullivan and Lawrence, spent three weeks at the Conrad Hilton Hotel in Surfers Paradise. This is the hotel which contains Jupiter's Casino. Mr Sullman and Miss Sullivan were provided, by the casino management, with a return business class airfare each from England, a suite for the duration of their stay, meals and other incidentals such as the bar fridge, all without charge. Mr Sullman, while not knowing the precise value of the benefits he had been given in this way, agreed that their value ran to many thousands of dollars T 174. It is unlikely that the management of the casino would have been prepared to provide complimentary benefits, on this scale, if Mr Sullman was not known to them as a man prepared to bet significant sums. While December 1999 is after the time, that on anyone's view, any relationship between Mr and Mrs Sullman was over, the generosity of the casino proprietor at that time is, it seems to me, an indicator of the reputation which Mr Sullman's previous gambling activities had earned for him. 297 Mr Sullman has lost large sums in gambling. The amount lost is well over the $100,000 which he concedes is possible. It is impossible to tell how much more than $100,000 he has lost in this way. Mr Sullman's Drinking 298 It was a repeated theme of Mrs Sullman's evidence that Mr Sullman frequently drank heavily, and frequently became intoxicated. She says that he would frequently arrive home from the casino intoxicated. She says that on some of these occasions he became abusive. 299 Mr Sullman denies these allegations. His position is that while he drank, he did not drink excessively, nor did he become abusive. 300 I accept that it was not an uncommon occurrence for Mr Sullman to arrive home affected by alcohol. 301 Mr Bailey gives evidence that, on a date he cannot place, "…Mike, Penny and I had dinner together at the Regent Hotel in Sydney. I particularly recall this evening as I had never before drunk such expensive wine and the bill for the evening, which Mike paid, was $1,100." 302 Mrs Lindesay gives evidence that on one occasion when she was living in the downstairs flat, (which must have been during Mr Sullman's visit in August 1998, in April 1999, or in July 1999). Mr Sullman invited her and her children to a restaurant to dine with Mr and Mrs Sullman and their children. She says that, "During that evening, the defendant insisted on ordering several bottles of red wine and proceeded to drink about four of them by himself." 303 Mrs Lindesay also gives evidence that, "The plaintiff gave a dinner party during one of the defendant's visits to which I was invited, and I watched the defendant, through the course of the evening, consume about six bottles of red wine." 304 Mrs Lindesay was not cross-examined on any of her evidence. 'Cross on Evidence', 5th Aust Ed., paragraph 17460 summarises the law about how a court should treat evidence which has not been cross-examined on. It says, "First, if the witness is not cross-examined on a point, cross-examining counsel may be taken to accept it and may not be permitted to address in a fashion which asks the court not to accept it. This is so even where it is counsel for a co-accused who is in breach. A different rule has been said to apply in Magistrates' courts, where a party might not be represented by a highly qualified professional advocate. (Whether the court in fact does accept unchallenged evidence is, of course, a matter for it.) Secondly, if the witness has not been cross-examined on a particular matter, that may be a very good reason for accepting that witness's evidence, particularly if it is uncontradicted by other evidence. But there is no requirement that the court must accept the evidence not the subject of cross-examination; this is particularly so if the evidence is contradicted by other evidence. Thus in Bulstrode v Trimble [1970] VR 840 at 849 Newton J said: "If a witness's evidence upon a particular matter appeared in his evidence in chief to incredible or unconvincing, or if it was contradicted by other evidence which appeared worthy of credence, the fact that the witness had not been cross-examined would, or might, be of little importance in deciding whether to accept his evidence."" (citations omitted) 305 In Paric v John Holland (Constructions) Pty Ltd [1984] 2 NSWLR 505 at 507 Sammuels JA (with whom Hutley and Priestley JJA agreed) said: "While I do not think that it would be right to conclude that the absence of cross-examination entailed the acceptance of the evidence given, it certainly enables that evidence to be regarded by any tribunal of fact with a greater degree of assurance than might otherwise have been the case." 306 An appeal to the High Court from this decision was dismissed (Paric v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 844 without the proposition just quoted being questioned. In Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 586-588 Sammuels JA (with whom Meagher JA agreed) agreed with a conclusion expressed in the 3rd Australian Edition of 'Cross on Evidence' that it is not Australian law that evidence unchallenged by cross-examination must be accepted. Kirby P dissented in the result but (at 561) accepted that there was no rule of law requiring evidence not challenged in cross-examination to be accepted. Kirby P was of the view that, on the particular facts of that case, when the evidence which had not been challenged was not "inherently incredible" or "inherently improbable", and there was support for it from other pieces of evidence, it should, in the circumstances of that particular case, not have been rejected. 307 Notwithstanding the absence of cross-examination of Mrs Lindesay, I am not prepared to accept that, in the course of a single meal, Mr Sullman single-handedly drank either four, or six, bottles of wine. I do, however, accept that on those two occasions his wine consumption was substantial. 308 While in some relationships an incident, or series of incidents, of drunken abuse might be relevant evidence in deciding whether there was a de facto relationship at all, or when any such relationship came to an end, Mrs Sullman did not seek to so use them in the present case. In these circumstances, the only relevance of those allegations is to the financial affairs of Mr and Mrs Sullman. 309 I am satisfied that Mr Sullman drank fairly frequently, and that the cost of his drinking was an item in the total weekly outgoings of the family of a size sufficiently large for it not to be able to be ignored. The evidence does not permit me to make any more precise finding than that. Second Possible Way of Quantifying Section 20(a)(b) Contributions - Analysis of Expenditure Through Particular Accounts 310 There was an attempt to identify the payments made through particular accounts which were for the benefit of Mr Sullman's Australian family. However, I cannot conclude from that evidence that any particular amount was spent, beyond the basic household expenditure, school fees and children's medical expenses. 311 There were some expenses which were identified, which did not fit into the category of basic household expenditure – air fares for holidays would be amongst them – but no attempt was made to compare the expenses per week of the family when on holiday with the expenses per week of the family when at Ingleside. The evidence shows that during a large part of the holiday in England in 1996, the Sullmans were staying with family and friends – the evidence does not say what their expenses of so doing were, or how that compared with their expenses of living at home. The evidence does not deal with which, if any, of the ordinary expenses incurred while living at Ingleside did not need to be incurred while the family was on holidays. As an example, the evidence does not say whether school fees continued to be paid while the children were on the extended holiday. That it is at least a possibility that the school fees were not paid during that time is shown by affidavit evidence of Mrs Sullman (which was not controverted by an affidavit in reply, and on which she was not cross-examined) Affidavit 7 June 2001, page 39 that, at the time that she was looking for schools for Christopher and Edward that would provide a scholarship, after three quarters of the fees owing to Pittwater House for 1998 were not paid, "I applied to Shore and received a letter advising that the application would not be considered until the $2,000 outstanding on James' school fees was paid." The part of the 1996 holiday outside the United Kingdom was one where Mr and Mrs Sullman were staying in commercial accommodation. One would ordinarily expect the cost of that part of the holiday to significantly exceed the cost of living at home, but no attempt was made to prove, in a coherent way, what the costs of the holidays were, or to what extent those costs exceeded the ordinary costs of living at home. 312 I will now deal with the expenditure through particular accounts. Section 20(1)(b) Contributions from Expenditure Through the ANZ Bank Joint Account 313 This account was open from 20 January 1997 to 27 October 1997. It could be drawn on by cheque, and also by automatic teller machine card. Mr Sullman and Mrs Sullman each had an automatic teller machine card relating to this account. Mr Sullman has analysed the payments into the account Affidavit 21 November 2001, para 90. Total deposits into the account over its life were $203,300. These can be summarised as: Mr Sullman's bank accounts $51,300 Mrs Sullman's bank accounts $18,000 Credit cards $14,000 Drawn down from mortgage account $120,000 Total $203,300 314 Mr Sullman has not analysed the payments out of the account save to say that $10,000 of the payments out were for the mortgage. 315 Mrs Sullman has performed an analysis of payments out of the account Ex D5 page 51-56. She accepts that an amount of $7,736.80 was used for household purposes. The amounts which she accepts as used for household purposes, includes payments to Woolworths, Coles, Kmart, and Katies and payments for pool repair, for school uniforms, and for pest control. There is thus likely to be a significant overlap between that amount of $7,736.80, and the amount of basic ordinary household expenditure, but one cannot tell the extent of the overlap. 316 One of the payments out of the account was an amount of $50,000, which was deposited into Mrs Sullman's National Australia Bank passbook account on 24 February 1997. Mr Sullman would ask Mrs Sullman to sign withdrawal forms on her National Australia Bank passbook account from time to time. Her NAB passbook account had around $1,800 standing to its credit when that $50,000 was paid in. As well, a deposit of $8,000 was made to it on 11 March 1997, from the ANZ joint account. Mrs Sullman identifies the withdrawals from that passbook as follows: 4 March 1997 $5,000 To Mrs Sullman's NAB cheque account 6 March 1997 $12,000 To Mrs Sullman's NAB cheque account from which $12,000 had been transferred back to the ANZ Bank joint account on 5 March 1997 11 March 1997 $8,000 $2,000 to the ANZ joint account, and $6,000 to Mr Sullman 14 March 1997 $2,000 To Mrs Sullman's NAB cheque account 10 April 1997 $8,000 To Mr Sullman 14 April 1997 $6,000 To Mrs Sullman's NAB cheque account 1 May 1997 $9,000 To Mr Sullman 9 May 1997 $3,000 To Mr Sullman 18 June 1997 $3,000 To Mr Sullman 27 June 1997 $2,500 To Mr Sullman 18 May 1997 $1,000 To Mrs Sullman's NAB cheque account Affidavit 14 December 2001, para 52 It is likely that the $14,000 which found its way to Mrs Sullman's NAB cheque account, was expended for the benefit of the family. I cannot tell, however, whether that $14,000 was, in whole or part, expenditure for the benefit of the family, additional to the basic household expenditure. 317 The statements of the joint account show that many of the debits to it were withdrawals made at an automatic teller machine at the casino. Mr Sullman's counsel made a vigorous attempt in cross-examination to suggest to Mrs Sullman that she had withdrawn a large portion of these automatic teller machine debits at the casino. That attempt failed, and in the course of submission, Mr Sullman's counsel expressly disclaimed any submission that Mrs Sullman had made such withdrawals. As well, there are many withdrawals from the account which are unexplained – see, eg, paragraph 290. Mr Sullman's Lloyds Bank Account 318 Mr Sullman presented no useful evidence concerning this topic, except to establish the making of payments to Mrs Sullman which are included in the list at paragraph 161 above. 319 Mrs Sullman analysed those bank statements of the account which had been produced on discovery. The statements produced on discovery contained gaps for the period 28 October 1996 to 4 March 1997 (five months), for the period 27 March 1997 to 22 December 1997 (nine months), for the period 18 February 1998 to 6 April 1999 (14 months), and for all periods after 18 May 1999. Mrs Sullman identifies the payments into and out of the account, but not the purpose for which any withdrawal was made. She states, in relation to each entry, the physical location of certain relevant people (eg, that Mr Sullman was in the United Kingdom, or that the entire family was in the United Kingdom). That analysis by itself proves nothing about any particular amount which Mr Sullman expended for the benefit of Mrs Sullman and the children. Mrs Sullman concedes that some of the amounts debited to that account could have been used for the benefit of the family T 343-344. She does not admit to any particular sum taken from this account being, even possibly, used for the benefit of herself or the family. Section 20(1)(b) Contributions from Mr Sullman's Commonwealth Bank Account at North Sydney 320 Mr Sullman presented no useful evidence concerning this topic, except to establish the making of payments to Mrs Sullman which are included in the list at paragraph 161 above. Mrs Sullman did not attempt to analyse the payments out of that account. Section 20(1)(b) Contributions from Mr Sullman's American Express Account 321 Mr Sullman tendered in evidence, certain parts of the statements of these accounts. During the period that Mrs Sullman was a cardholder for the account, the statements were divided so that there was first listed the transactions which had been charged on Mr Sullman's card, there was then a statement of the total of the amounts charged on Mr Sullman's card, next a listing of the items charged on Mrs Sullman's card, and a statement of the total on Mrs Sullman's card. For the period from December 1995 to January 1998, Mr Sullman tendered those pages of the account which showed the total amount charged on his card (which would also include those individual items charged on his card which happen to appear on the same page), the individual items charged to Mrs Sullman's card, and the total of the items charged to Mrs Sullman's card. He also tendered one page of his account for August 1999, which showed certain expenses incurred at Hope Island and in Mona Vale in July 1999. Those accounts showed that £48,112.77 had been incurred on the card in Mrs Sullman's name, and £64,290.35 had been incurred on the card in Mr Sullman's name. Mr Sullman gave oral evidence that, of the amounts charged to the card, over 95% would have been totally spent on the family T.131. He said he had done an exercise which yielded that figure the night before he gave evidence. In re-examination, a document said to be that exercise was tendered (with counsel for Mrs Sullman given a further right to cross-examine in relation to it T.195-196.) The document was eventually admitted, as exhibit P5 T.230. Exhibit P5 does not analyse the American Express account at all. In these circumstances, I reject Mr Sullman's evidence that 95% of the amounts debited to the American Express account were for the benefit of the family. It is likely that some of the amounts debited to the American Express Account were for the benefit of the family, but the evidence does not establish which ones were for the benefit of the family. 322 Mrs Sullman has prepared an analysis of debits to the account. In relation to those items incurred on Mr Sullman's card, the comment she makes in relation to entries are generally to do with whether Mr Sullman was in Australia or the United Kingdom, and (sometimes) whether Mrs Sullman or any of the children were with him. No admission was made by Mrs Sullman, about any total amount that was spent on this card. Nor was any submission made by Mr Sullman's counsel, about the particular amount I should find was attributable to the family from the debits to this account. 323 In relation to the amounts debited to Mrs Sullman's card, Mrs Sullman admits that some items are for herself or the children. Others are said to be "MJS request" – which I take to be that Mr Sullman requested that she use her card to charge the account. In my view, it is likely that the vast majority of the amounts debited on Mrs Sullman's card were for the benefit of the family. However amounts which she charged on her card, include items of clothing for herself and the children, Telstra, hardware, chemists, and fuel. These items are not necessarily separate to the basic household expenditure. Also, the amount charged to Mrs Sullman's card includes £7,427.65, which was the $17,800 she charged on 8 December 1998 to Pittwater School, a large part of which was later refunded. Section 20(1)(b) Contributions from ANZ QANTAS Telstra Card 324 Mrs Sullman accepted that many of the items charged to this account, on the pages of it which were in evidence (which ran from 31 January 1997 to 28 July 1997 Ex CC19, page 55-64, 29 September 1998 to 26 February 1999, and from 30 March 1999 to 30 August 1999,) were for the benefit of the family. Again, however, there appears to be overlap in the type of items debited to this account, with the items involved with the basic household expenditure. Section 20(1)(b) Contributions from Other Credit Card Accounts 325 While the evidence included some attempt to analyse debits to other credit card accounts, no firm conclusion can be reached from them about any total amount which was paid by Mr Sullman for the benefit of the family, through those accounts. How is this Account Information to be Used? 326 While I have recounted in some detail the evidence which was given concerning particular bank accounts and credit card accounts of Mr and Mrs Sullman, the case which was presented for Mr Sullman was put on the basis that the court did not, and could not be expected to, undertake an accounting process T415. PART E – WHAT IS JUST AND EQUITABLE 327 As any order would need to be made by requiring the transfer of some of Mrs Sullman's assets, it is necessary to state her asset position. Mrs Sullman's Assets 328 At the start of the relationship, Mrs Penny Sullman's assets consisted of the Ingleside home, her old motor vehicle (worth the amount it was traded in for a few weeks later, namely $23,000) the household furniture, and around $25,000 (consisting of the amount she was ultimately to receive from the proceeds of the MLC loan, plus a small amount standing to the credit of her savings account.) Her liabilities were a liability to repay half of the $260,000, which had been borrowed from MLC. 329 Upon settlement of the sale of the Ingleside property, Mrs Sullman invested the sum of $1,596,322.97. She also should have had the sum of $129,388.45, which I have earlier identified as the part of the deposit which she could keep and use in the future. By 1 May 2001 the amount she had invested had shrunk (for reasons not explored in the evidence) to $1,496,947. 330 She lists her assets and liabilities as at 1 May 2001 as follows: Investment Portfolio $1,496,947 Personal Superannuation 1,700 Cash Management Account 1,000 Home Contents 50,000 Motor Vehicle (part share) – proportion 11,000.00 Bank account 100 Visa Credit Card -6,000 Amex -1,700 TOTAL $1,553,047.00 331 As at 12 December 2001 Mrs Sullman listed her assets as follows: Investment Portfolio $1,356,800 Personal Superannuation $1,500 Cash Management Account $5,000 Home contents $50,000 Motor vehicle (part share) $10,000 Bank Account $150 Visa Credit Card ($8,000) Amex ($1,500) Total $1,413,950 Income and Expenditure 332 Mr Sullman has not deposed to his income and expenditure on an annual basis, for the purpose of this litigation. However, he has the pensions which yield not less than $222 per week (see paragraph 280 above). As well, Mr Sullman obtained employment in Australia from June 2001 to December 2001, with Investor Securities Group, earning $1,602 per week before tax, which resulted in a take home pay of around $2,000 per fortnight. 333 Mrs Sullman lists her income as at 30 May 2001 as follows: Interest on investment of $1.5 million (taxable income) $60,000pa at 4% pm Centrelink single parent payment $144/fortnight 334 She lists her weekly expenses as at 30 May 2001: Rent $590.00 Clothes – Uniform, Children, Penny $150.00 Food $400.00 Electricity $150.00 Telephone $70.00 Water $10.00 Private Health Insurance $35.00 Health Expenses (Drugs etc) $10.00 House Contents Insurance $6.50 Car Insurance $16.00 Greenslip $7.00 Registration $9.00 Car Maintenance $50.00 Fuel $200.00 Computer (Ed's Laptop) $22.40 Mobile $15.00 Entertainment (Family) $100.00 School Fees (Chris & Ed) $500.00 College Fees (Liz) $138.00 Foxtel $17.00 Horse $100.00 Holidays $96.00 TOTAL $2691.90 Mr Sullman does not contend that she should be deriving any greater return than 4% pa on her invested funds T 119 . 335 This year, Christopher is in year 10 at Knox and Edward is in year 8. They do a lot of extra-curricular activities such as rugby, cricket, pipe band, gym and cadets. These activities mean that the boys have to be collected late from school four days a week, and have activities on most weekends. A lot of Mrs Sullman's time is spent on these activities. She says, and I accept, that she has been unable to work to date due to her family circumstances. The Nature and Significance of Mr Sullman's Obligations to Maintain his Children 336 James left school after completing year 10, at the end of 1996. He did a coxswain's course after leaving school. He turned 18 on 6 March 1999. He lived at home until October 1999. After living for some months away from home, he subsequently moved back. By 2001 he was working in a boatshed, living at home, and not paying rent. 337 Elizabeth left Pittwater House School at the end of 1997, and continued her education at Pittwater High School. She completed the Higher School Certificate in 2000. She turned 18 on 4 March 2001. In 2001 she was studying journalism, and working part-time. She lives at home, and does not pay rent. 338 I said earlier that there was a dispute about whether the Child Support Agreement which Mr and Mrs Sullman entered in March 1993 and varied in July 1994, has terminated by operation of law. Those agreements were drafted on the basis that they were to be registered under the provisions of the Child Support (Assessment) Act 1989 (Cth), that the money paid under the agreement was to be credited against Mr Sullman's liability under any existing or future administrative assessment, and was intended to constitute one hundred percent of the annual rate of child support payable under any relevant administrative assessment made pursuant to that Act. Those agreements were registered with the Child Support Agency. 339 On 17 March 2000 Registrar Messner, of the Family Court, ordered that an enforcement summons, which Mrs Sullman had filed in the Family Court on 16 December 1999, seeking to enforce the 1993 and 1994 agreements, be struck out. The Registrar, in the course of the reasons for that decision, said that: "The agreement although registered with the Child Support Agency is not capable of enforcement by that Agency or under the Child Support Act because of a terminating event. That terminating event is the husband's permanent move to the United Kingdom." 340 The Registrar also held that the Agreement was not a Maintenance Agreement as defined in section 4 of the Family Law Act, and hence was not a maintenance agreement capable of registration under section 86 of the Family Law Act. The Registrar went on to make some obiter observations, that if it was wrong to conclude that the Agreements were not a Maintenance Agreement within section 4 of the Family Law Act, that, "The Agreement therefore was terminated upon the terminating event being that the husband was no longer a liable parent within the definition of the Child Support Assessment Act." 341 Mrs Sullman has appealed against that decision of the Registrar. That appeal had not been heard by the time of the hearing of this case before me. 342 Mr Sullman accepts, even after any relationship between himself and Mrs Sullman came to an end, he had a moral obligation to support his children. T.78 His explanation for not having paid Mrs Sullman anything for maintenance since May 1999 is, "I would say I have really paid them in advance." T.79 343 Mrs Sullman ceased receiving payments of child support, identified as such, in relation to the period from, effectively, the beginning of January 1996. From that time, expenses connected with the children were paid from the general financial contributions which Mr Sullman made for the benefit of the family. If child support had been paid in accordance with the agreement from that time, and taking into account the Consumer Price Index increases, the following amounts would have been payable. PERIOD PAYABLE CALCULATION SUM DUE FOR PERIOD 1.1.96 - 30.6.96 $208.42 (CPI 0.3%) x26 x4 $21,675.00 1.7.96 – 30.6.97 $208.42 (CPI 0.3%) x52 x4 43,351.00 1.7.97 – 30.6.98 $210.50 (CPI 1%) x52 x4 43,784.00 $213.24 (CPI 1.3%) x52 x3 33,265.00 1.7.98 – 30.6.99 James turns 18 on 6.3.99 - 7,564.00 $11,088 x 249/365 1.7.99 – 30.6.00 $220.28 (CPI 3.3%) x52 x3 34,363.00 $234.16 (CPI 6.3% x52 x2) 24,352.00 1.7.00 – 30.6.01 Elizabeth turns 18 on 4.2.01 - 8,239.00 $12176 x 247/365 1.7.01 – 31.12.01 $247.74 (CPI 5.8% est) x26 x2 12,882.00 TOTAL $229,475.00 344 Mr Sullman is right in the principle which lies behind his explanation for having paid nothing for maintenance since May 1999, namely, that amounts which he ought have paid in connection with the maintenance of his children, and which would have been payable regardless of any de facto relationship, can and should be offset against the actual contributions which he has made for the benefit of the family, of a kind which are taken into account under section 20(1)(a) and (b). However, one needs to look at the amounts of contributions, and the amounts properly payable in connection with maintenance, more closely, to ascertain where the net balance lies. 345 The reader will recall that when I was calculating the contributions which Mr Sullman had made to the basic household expenditure (see paragraph 267 above), I calculated the amount which he paid in excess of school fees and children's medical insurance. I calculated it that way, because Mr Sullman was already obliged to pay those amounts, in accordance with the maintenance agreement which had been entered. When I say he was "obliged" to pay those amounts, I am not talking about a legal obligation, or in any way trying to predict or pre-empt the result of the appeal from the Registrar of the Family Court. Rather, I am saying that, as a matter of what was just and equitable between Mr and Mrs Sullman, and regardless of any strict legal obligation, Mr Sullman had an obligation to pay those amounts. 346 In similar way, he had an obligation to provide for the support of his children, which arose prior to and independently of the de facto relationship. Counsel for Mr Sullman submits that, once the relationship had started, all amounts which Mr Sullman paid for the benefit of the family, should properly be seen as contributions to the welfare of the family, within the meaning of section 20(1)(b). That submission is right. However, in taking the next step in the reasoning to arrive at the quantum of an order to be made under section 20, namely deciding what adjustment of property interests is just and equitable having regard to those particular contributions to the welfare of the family, one cannot ignore his pre-existing obligation to maintain his children. Once one has calculated the total payments which Mr Sullman made for the benefit of the family, the next step in deciding what is just and equitable having regard to those payments, is to then deduct from those total payments the amount which he was already under an obligation to pay, regardless of the existence of the de facto relationship. 347 During the period from the beginning of January 1996 to the end of October 1997, the amount which Mr Sullman was obliged, in this way, to pay for child support was, as derived from the table in paragraph 343 $(21,675 + 43,351 + (4/12 x 43,784)) = $79,620. This exceeds the amount of $78,076 which I have found (in paragraph 273 above) to be his contributions which count for the purpose of section 20(1)(a). Mrs Sullman's Contributions 348 In deciding what is a just and equitable adjustment of the property rights, it is also necessary to work out the contribution which Mrs Sullman made. If one adopts a literal approach to section 20(1)(b), her contribution included making available her home for the family to live in, and doing all of the household tasks which I have earlier listed. However, in adjusting the property interests between Mr and Mrs Sullman, it would not be just and equitable to give her credit for the entirety of those contributions. She would have made the home available for the children regardless of the de facto relationship, and would have performed household tasks for the children regardless of the de facto relationship. The only credit she is entitled to, for the purpose of calculating what is just and equitable within the meaning of section 20, is any extra benefit which she conferred, of the types I have mentioned, over and above what she would have done in any event, regardless of the existence of the de facto relationship. This "extra benefit" was making her home available to Mr Sullman, and performing household tasks for him. 349 Insofar as she made her house available to Mr Sullman, an allowance in the nature of rent would need to be made by him. 350 Before moving into the Ingleside house in November 1995 Mr Sullman was living in rented accommodation in Turramurra. The rental was paid as part of his remuneration by Lend Lease. Mr Sullman's "guess" was that the rental for it was $600 or $700 per week T.172. The Ingleside accommodation was at least as comfortable as that at Turramurra, if not decidedly better. 351 When Mr Sullman received his termination payments from Lend Lease, it included a rental subsidy of $61,967.90. 352 I do not think that Mrs Sullman should receive credit for the whole of the amount of the rental which was being paid at Turramurra, or for the whole of the amount of the rental subsidy which was included in Mr Sullman's termination pay. The Turramurra house was one where Mr Sullman lived with Miss Sullivan and Lawrence, and the rental payment covered accommodation for all of them. Even though the termination pay included an amount called "rental subsidy", there is a real likelihood that Mr Sullman's remuneration package, inclusive of a "rental subsidy", would have been negotiated at a time when he was actually paying rent, namely during the time that he was living with Miss Sullivan. Notwithstanding the characterisation that the payment was given as between Mr Sullman and his employer, I cannot see that it is just and equitable, as between Mr and Mrs Sullman, for Mrs Sullman to receive the whole of it. Rather, it seems to me that the amount of credit which Mrs Sullman should get for making the house available for Mr Sullman, is more of the order of $250 per week. I see no reason why that amount should abate during the periods that Mr Sullman was away from Ingleside during that two-year period. This yields a credit in Mrs Sullman's favour of $26,000. 353 I shall leave to one side, for the present, any valuation of Mrs Sullman's homemaking services provided to Mr Sullman. What is Just and Equitable for the "More Than Basic" Living Expense Payments, up to November 1997? 354 I have found that during the period up to November 1997 Mr Sullman probably made payments for the welfare of the family, which went beyond the provision of basic housekeeping, school fees, medical insurance and child maintenance. I have not been able to quantify the amount so provided. Even if I could quantify it, there would still be a problem about how it was that Mr Sullman having spent that money led to the conclusion that it was just and equitable that Mrs Sullman should, now, have some of her property taken away from her. 355 The most significant of these expenses would have related to the holidays. So far as the long holiday in 1996 is concerned, it was Mr Sullman who was the moving force in the family going on that holiday. There was no trace of a suggestion made at the time that going on that holiday might result in Mrs Sullman having the equity in her home eroded. The holiday has not resulted in Mrs Sullman having any extra assets, apart from the pearl. Likewise, for all the other holidays, Mr Sullman was the moving force, and there was no suggestion made at the time, that taking the holiday might result in Mrs Sullman having the equity in her home eroded. 356 In Myers v Myers (Brownie J, NSW Supreme Court, 21 October 1986, unreported) Brownie J considered a claim under section 20 where the man of the de facto couple had paid for an "expensive holiday". His Honour said (at 8-9): "Whether or not such an expenditure is a "contribution" within section 20(1)(b) seems to be free of authority, although the point has been occasionally assumed in favour of the partner incurring such expenditure, but on principle I see no reason why such an expenditure should not be regarded as a payment effected towards the "welfare of the partners" , depending upon the circumstances in any particular case. The effect of such an expenditure may be relatively ephemeral, compared to the purchase of land or some other lasting object, but in appropriate cases, such expenditure falls within the dictionary definition of "welfare" : the expenditure may go to the state of the parties in faring well, or to the wellbeing of one partner or both of them. In the present case, the evidence seems to establish little more than that the money was expended in a way which I think it can be inferred was regarded by both parties at the time as being desirable. In the circumstances of this case, it seems to me to be a small matter, when weighed with all the other contributions of the parties." 357 Though his Honour described it as a "small matter" it played no part at all in his Honour's subsequent reasoning, nor in his calculation of the quantum of the order made. 358 In my view, the payments which Mr Sullman made for the extensive holidays (whatever the quantum of those payments might have been) is not such as to make it just and equitable for Mrs Sullman to now pay him money. The only exception I would make to this relates to the pearl, for which Mrs Sullman should make an allowance equal to its value. I assess that at $2,000. 359 Similarly, I can see no reason why whatever payments Mr Sullman might have made for expenses other than holidays (being expenses beyond provision of basic housekeeping, school fees, medical insurance and child maintenance) ought result in the making of an order. As well, in carrying out the comparison of contributions which section 20 calls for, Mrs Sullman has credits in her favour of $26,000 (notional rent), and the value of her homemaking services. When Mr Sullman has not established the quantum of the contributions he made, during the period up to November 1997, for items other than basic housekeeping, school fees, medical insurance, child maintenance and holidays, I cannot find that the value of these contributions which he has made exceeds the value of the notional rent, plus the homemaking services provided for Mr Sullman, minus the value of the pearl. Mr Sullman's contributions to the "more than basic" living expense payments, up to November 1997, do not warrant any order in is favour. Effect of Mr Sullman's Payments After November 1997 360 The payments which Mr Sullman made after November 1997, need to be considered in a different way. I have identified those payments in paragraph 161 ff above. $24,000 of the $71,266.30, which I have there identified, was used in payment of the mortgage, and I have already given credit for it. Thus, there are payments made after 1 December 1997 by Mr Sullman totalling $47,266.30 for which I have so far not given credit. 361 That sum, plus payment of the first term school fees for Christopher and Edward at Pittwater House in 1998, and school fees for terms 1 and 2 for Christopher and Edward at Knox in 1999, is the sole contribution which Mr Sullman has made to the support of his children in the period of over four years since he left in November 1997. While his reduced circumstances are such that, during that time, he could not have afforded to pay child support at the rate provided for by the agreement, in my view the payments of the order of $47,000 which he has actually made since 1 December 1997 for a purpose other than payment of the mortgage ought be regarded (as I infer Mr Sullman himself regarded them at the time of making them) as payments for the maintenance of the children. To the extent that they were made, they are, in my view, fully attributable to his obligation, arising from a time prior to the de facto relationship commencing, to maintain his children. In my view they do not give rise to any circumstance which makes it just and equitable for Mrs Sullman to now pay him money. 362 Mrs Sullman has paid (or will pay this year) the following amounts connected with the children. TERM DESCRIPTION COST $ 1999 Term 3 at Knox for Christopher and Edward as boarders 18,500 2000 Terms 1,2 & 3 at Knox for Christopher and Edward as boarders 60,000 2001 Terms 1, 2 & 3 for Christopher and Edward as day students 24,947 2002 Term 1 at Knox for Christopher and Edward as day students 8,856 Subtotal paid by Mrs Sullman to Knox to date 112,303 2001 Term 1,2,3 & 4 at Macleay College for Elizabeth's Journalism Diploma 7,000 2002 Term 1 at Macleay College for Elizabeth's Journalism Diploma 1,750 Subtotal paid by Mrs Sullman to Macleay College to date 8,750 1/2000 to date Lap-top hire for Edward at $89.30/month as part of lap-top program at Knox 1,160.90 2002 Fees payable for terms 2 & 3 at Knox for Christopher and Edward as day students 17,712 2002 Fees payable for terms 2,3 & 4 at Macleay College for Elizabeth's Journalism Diploma 5,250 8/5/2000 to date MBF private health insurance for Mrs Sullman and the four children until 21 at $395.30 per quarter 2,767 Subtotal paid by Mrs Sullman to Macleay, Knox & MBF to date 26,889.90 Total of payments by Mrs Sullman to Macleay, Knox & MBF to date 147,942.90 363 When these are the actual amounts which Mrs Sullman has paid since term 3 of 1999, and when they do not include amounts which Mrs Sullman paid in connection with the children from 1 December 1997 until term 3 of 1999, I can comfortably conclude that the $47,000-odd which Mr Sullman has paid, for purposes other than the mortgage, since 1 December 1997 is all consumed by his obligation to maintain his children. 364 The table in paragraph 362 includes amounts which are not strictly within the scope of the maintenance agreement. Mr Sullman has, since mid 1999, not approved of Christopher and Edward continuing at Knox. Any tertiary education (such Elizabeth's journalism diploma) was outside the scope of the maintenance agreement. The laptop hire for Edward has already been taken into account as part of the basic expenses. The amount claimed for health insurance covers Mrs Sullman and the four children until 21, while the maintenance agreement covers only the children, until 18. Even though most of them are outside the letter of the maintenance agreement in this way, they are still legitimate expenses which Mrs Sullman has. Those expenses can be used for the very limited purpose for which I use them, namely, as confirmation that the $47,000 odd which Mr Sullman has paid after November 1997, other than for the mortgage, ought be regarded as all used up in partial performance of his pre-existing obligation to maintain his children. A Detrimental Reliance Case? 365 Mr Sullman gave evidence, in paragraphs 33 and 34 of his affidavit of 21 November 2000, of a conversation with Mrs Sullman which might have provided the basis for an argument that he had relied on a representation by Mrs Sullman that he had an interest in the house. Mrs Sullman denies those conversations Paras 51 and 52 Affidavit Mrs Sullman 7 June 2001. Mr Sullman was not cross-examined on the conversation, nor was Mrs Sullman cross-examined on her denial. No submissions were made to me about this conversation. In these circumstances I shall not take this evidence any further into consideration. ORDERS: 366 The orders I make are: 1. I declare that the plaintiff and the defendant are beneficial owners of Toyota Landcruiser motor vehicle registration TZF585 in the respective proportions 23,000:35,824. 2. Otherwise, amended summons dismissed. 3. Cross-claim dismissed. 367 I have not heard argument on costs. Uninstructed by such argument, the preliminary view which I would take on how the costs should fall is that the cross-claimant should pay the costs of the cross-claim, the plaintiff should pay the costs of the amended summons, and those two sets of costs should be set off. I would assess the costs of the amended summons as being 5% of the entire costs of the hearing. The result of effecting the set off, would therefore be that the cross-claimant pays 90% of the cross-defendant's costs of the proceedings. If the parties wish to argue that some different order as to costs should be made, they may do so by re-listing the matter within 21 days from today's date. To avoid incurring costs of a court appearance unnecessarily, I shall make a costs order now, but also direct that the orders not be entered for 28 days, so as to give the parties the opportunity to re-list the matter, and present any further evidence and argument which they might wish to present on the question of costs. 368 I therefore also order: 4. That the cross-claimant pay 90% of the cross-defendant's costs of the proceedings. 5. That these orders not be entered until 28 days from today's date. ********** Last Modified: 03/28/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.