Wilson v Vine [2003] NSWSC 341

Reported Decision : (2003) DFC 95-269

New South Wales Supreme Court

CITATION : Wilson v Vine [2003] NSWSC 341 HEARING DATE(S) : 1, 2 April 2003 JUDGMENT DATE : 28 April 2003 JURISDICTION: 2200/2003 JUDGMENT OF : Master Macready at 1 DECISION : Defendant to pay plaintiff $75,000 by way of adjustment of property interests.

CATCHWORDS : Family Law. Application under Property Relationships Act 1984. Whether plaintiff's conduct in falsifying her evidence distentitled the plaintiff from relief. Held that in the circumstances of this case it did not. Order for adjustment made. PARTIES : Margaret Ann Wilson v Wayne Russell Vine FILE NUMBER(S) : SC 2200/02 COUNSEL : Mrs M. Gilmour for plaintiff Mr R.D. Wilson for defendant SOLICITORS : Humphreys & Feather for plaintiff Stacks Family Law Services for defendant

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

Master Macready

Monday 28 April 2003

2200/02 Margaret Ann Wilson v Wayne Russell Vine JUDGMENT 1 Master: This is an application under the Property Relationships Act 1984 for an adjustment of the parties' property interests pursuant to s 20 of that Act. The parties commenced to live together at the defendant's property at Berowra on 5 March 1998 and separated finally on 15 December 2001. The parties had no children as a result of their relationship. There is some dispute as to whether there was a separation for a period when the defendant suffered from a nervous breakdown in 1999 and I will now deal with that matter. Interruption to the relationship 2 According to the defendant he moved into the back bedroom in the home in late 1999 when he suffered a nervous breakdown. He says that their sexual relationship ceased until he recovered in April 2001 and moved back into the main bedroom. The evidence shows that there was a continuing relationship between them and the evidence discloses considerable help given by the plaintiff to the defendant with his illness. She was a nurse who had experience with mental illness. 3 This raises the question of how a relationship of this nature terminates. There have been a number of references in the cases to the problem which started to surface in Australia in cases under matrimonial legislation which provided for parties living separately and apart as a ground for divorce. An earlier case which is of use on the general principles is Main v Main (1949) 78 CLR 636. At page 642 in the joint decision of the majority the following was said:- "Although usually the existence of the conjugal or matrimonial relationship or consortium vitae means that the spouses share a common home and live in the closest association, it is not inconsistent with absences one from another, even for very long periods of time. It rests rather on a real mutual recognition by husband and wife that the marital relationship continues to subsist and a definite intention to resume the closer association of a common life as soon as the occasion or exigency has passed which has led to an interruption regarded by both as temporary. In deciding whether there was at any specified date an existing matrimonial relationship, it is, I think, right to say that such a relationship does not end so long as both the spouses bona fide recognize it as subsisting, and in particular it does not end by reason of a separation brought about by the pressure of external circumstances such as absence on professional or business pursuits, or in search of health, or, it may be, even of pleasure. Marital intercourse, the dwelling under the same roof, society and protection, support, recognition in public and in private, correspondence during separation, making up as a whole the consortium vitae, which the old writers distinguish from the divortium a mensa et thoro, may be regarded separately as different elements, the presence or absence of which go to show more or less conclusively that the matrimonial relationship does or does not exist. The weight of each of these elements varies with the health, position in life, and all the other circumstances of the parties."