Supreme Court New South Wales

• Medium Neutral Citation: Cooper v Mulcahy [2012] NSWSC 373
• Hearing dates: 4, 5, 6, 8 11, 12 July 2011, 5, 6, 7, 8, 26, 27 September 2011, 30 November, 1, 2 December 2011, 30 January 2012
• Decision date: 23 April 2012
• Jurisdiction: Equity Division
• Before: Associate Justice Macready

Decision

I direct the parties to bring in short minutes

• Catchwords: FAMILY LAW - application for adjustment of parties' property interests pursuant to s 20 of the Property (Relationships) Act 1984 - de facto relationship of approximately 15 years - whether it is appropriate to take account of a lottery win in the adjustment process - TORT - assault and battery - cross-claim for assaults by plaintiff - limitation period relating to each assault - some assaults statute barred - whether defendant suffered from a disability - compensatory damages - aggravated and exemplary damages - order made for adjustment
• Legislation Cited: Civil Liability Act 2002; Family Law Act 1975; Limitation Act 1969; Limitation (Amendment) Act 1990; Property (Relationships) Act 1984
• Cases Cited: Baker v Towle [2008] NSWCA 73; Bilous v Mudaliar [2006] NSWCA 38; 65 NSWLR 615; Bova v Locke [2005] NSWCA 226; Chanter v Catts 64 NSWLR 366, [2005] NSWCA 411; Doherty v Doherty (1996) FLC 92-652; Dowrick v Sissons (1996) 20 Fam LR 466; Evans v Marmont (1992) 42 NSWLR 70; Howlett v Neilson [2005] NSWCA 149; Jackson v Jackson (NSWSC, 26 March 1999, unreported); Kardos v Sarbutt [2006] NSWCA 11; Kotulski v Attard [1981] 1 NSWLR 115; Manns v Kennedy [2007] NSWCA 217; Marando v Marando (1997) FLC 92-754; Marker v Marker (1998) FamCA 42; Marsh v Marsh (1993) 17 Fam LR 289; New South Wales v Harlum [2007] NSWCA 120; Norbis v Norbis (1985-1986) 161 CLR 513; Olive v Johnstone [2006] NSWCA 21; O'Neill v Foster (2004) 61 NSWLR 499; Saunders v Jackson [2009] NSWCA 192; Senno v Bailey [2011] NSWSC 679; Separovich v Ferrao [2011] NSWCA 180; State of New South Wales v Radford [2010] NSWCA 276; Varmedja v Varmedja [2007] NSWDC 385; Wallace v Stanford (1997) 37 NSWLR 1; Wendt v Wood [2011] NSWSC 781; XL Petroleum NSW Pty Ltd v Caltex Oil (Aust) Pty Ltd [1985] HCA 12; 155 CLR 448; Zorom Enterprises v Zabow [2007] NSWCA 106)
• Texts Cited: Carolyn Sappideen et al, Fleming's The Law of Torts, 10th ed (2011) Thomson Reuters.
• Category: Principal judgment
• Parties: Robert Bruce Cooper (plaintiff); Barbara Alicja Mulcahy (defendant)
• Representation: Counsel; Mr P Maiden SC & Mr J Priestley (plaintiff); Mr MB Williams SC & Mr CK Hickey (defendant); Solicitors; Fishburn Watson O.Brien (plaintiff); AR Conolly & Company (defendant)
• File Number(s): 2008/280481

Judgment

1 This is the hearing of the plaintiff's claim for an adjustment of the parties' property interests pursuant to the Property (Relationships) Act 1984. The defendant brings a cross claim seeking such an adjustment and also damages, aggravated and exemplary damages in respect of a series of alleged assaults perpetrated on her by the plaintiff.

2 The parties lived in a de facto relationship between about November 1992 until September 2007. There is some difference between the parties about the precise dates. The parties had no children as a result of their relationship but they each had children from children from their marriages before they commenced their relationship. The defendant's children resided with the parties for a short time after the commencement of the relationship.

History of the relationship

3 The plaintiff was born in 1957 and the defendant in 1951.

4 The relationship between the parties commenced when the plaintiff moved into the defendant's home in the Brisbane suburb of Gaythorne. The parties differ as to when this occurred. The plaintiff says that occurred in October 1991 and the defendant suggests that it occurred in November 1992. In the context of this case the difference is not material. However given the plaintiff's difficulty with dates and other evidence I will accept that it commenced in November 1992.

5 At the time of the commencement of the relationship the plaintiff was working for a company roof shield in Brisbane. He was a divorced man with three children who were then living with their mother. At the time of the commencement of the relationship the defendant was unemployed and in receipt of the sole parent pension. She had two children Wade aged 16 and David aged 20. At the time of the commencement of the relationship they were both residing in her mother's house but David moved out shortly after the relationship commenced.

6 In either 1992 or 1993 the plaintiff moved to Melbourne to conduct a roof shield franchise in the city. Initially the defendant did not join him but did so some months later. While in Melbourne the defendant did not work and continued to receive social security benefits. During this period she let out her property, which she owned, at Gaythorne, Brisbane. In 1994 the parties returned to Brisbane and moved into the defendant's home. The plaintiff continued to conduct a roof restoration business in his own name. This business ended when the plaintiff suffered a work injury and went on to sickness benefits.

7 In November 1995 the parties moved to the Sunshine coast for approximately 7 months and the plaintiff was involved in the "Wetcheck" business. In 1996 the parties commenced travelling around Australia, which to one extent or another they did until 2000. This involved the parties selling a range of products at field days and trade shows including welding rods, sunglasses, hats and the like. Both parties participated in the work involved although there are some differences between them as to the extent of each person's involvement.

8 From 2000 the parties in effect became property investors. They spent considerable amounts of time developing properties they purchased during the relationship. Initially in 1999 these were the properties at Coldstream Street, Yamba and at South Bank Road (sometimes also referred to as Serpentine Road) at Harwood in New South Wales. Later in 2003 an adjoining property to this was purchased and the overall parcel of land was developed. Also in 2003 the parties purchased a block of units in South Grafton that was later sold in 2007 for a significant profit. The properties bought and sold by the parties are set out later in this judgment.

9 In 2006 the parties became involved in a telephone business. The parties jointly hold 50% in the company Janmel Pty Ltd, the owner of this business, but it was the plaintiff who was the primary involved party, if not almost exclusively, as between himself and the defendant. This position continued post separation.

10 The date of separation of the parties was September 2007, which is admitted on the pleadings and was the date of physical separation. However there appears to be a period of emotional interaction up until May 2008 and on the plaintiff's version August 2008. Between September 2007 and May 2008 the parties went to Bribie Island together, the plaintiff visited the defendant at Mitchelton, staying overnight and the parties had a holiday in Vanuatu in December 2007.

11 After separation the plaintiff continued to live in the property for some time at South Bank Road and looked after the farm. He no longer lives there.

12 The factors which the Court must consider are set out in Section 20 of the Property Relationship Act 1984 as discussed by Basten JA in Baker v Towle [2008] NSWCA 73,

"[43] It has been said in a number of cases that the application of s 20 involves three steps, which were identified in Howlett v Neilson [2005] NSWCA 149 (Hodgson JA, Ipp and McColl JJA agreeing) in the following terms at [25]:

(1) identification and valuation of the property of the parties;

(2) identification and valuation of the respective contributions of the parties, of the types referred to in s 20;

(3) determination of what if any order is just and equitable having regard to these contributions.

[44] What questions arise will, of course, depend to some extent on the circumstances of the individual case. For example, in some cases there will be an antecedent question as to whether the applicant is a party to a "domestic relationship" as defined in s 5 of the Act: see, eg, Delany v Burgess [2007] NSWCA 360. Otherwise, each of the three steps referred to above may require some further elucidation.

13 I will first deal with the parties' property at the commencement and conclusion of the relationship.

Property of the parties at the commencement of the relationship

14 The plaintiff's assets consisted of:

• Savings of $6,000
• Vehicle worth $1,000
• Trade debts of $4,000

15 The defendant's property consisted of:

• Her property at Gaythorne estimated to have a value of $150,000
• Her household goods estimated at $15,000
• Bank accounts and cash of $900

16 She had debts of $33,000.

17 Her income consisted of social security benefits of $407 per fortnight and board from her son Wade of $50 per week.

18 In the period from 1998 the parties purchased and sold a number of properties. They are included in the following table:

Property	Date of Purchase	Purchase Price	Date of Sale	Sale Price
Coldstream Street	18.12.98	$95,000.00	01.07.04	$387,500.00
South Bank Road	16.10.99	$70,000.00	Not sold
River Road	2000/2001	$95,000.00	Not sold
Oak Avenue	23.04.03	$63,500.00	19.09.03	$125,000.00
Cane Farm	29.08.03	$320,000.00	20.08.07 (block) 23.10.07 (removal house) Farm - not sold	$33,000.00 $415,000.00
Flaherty Street, South Grafton (units)	03.10.03	$291,000.00	August 2007	$650,000.00
TOTAL		$934,500.00		$2,808,500.00

Property of the parties at the conclusion of the relationship

19 The real estate held at the conclusion of the relationship was the following

• The jointly owned home at South Bank Road
• The jointly owned cane farm at South Bank Road
• 50% interest in River Road which the defendant owned with her son Wade,
• The jointly owned removal house
• The defendant's home at Gaythorne

20 There was personal property that is best dealt with when considering those assets at the hearing. There are bank accounts that can also be conveniently dealt with at that time. The house at South Bank Road was valued at $425,000 at separation and the Cane Farm at $550,000. The evidence did not address the value of the other real estate at the conclusion of the relationship.

21 There were liabilities to the ANZ for a line of credit of $406,855.66, a loan on the farm of $394,803.76 and a half share of the loan on River Road of $65,000. The removal house was sold in October 2007 and the proceeds of $415,000 paid to reduce the line of credit and loan.

Property of the parties at the hearing

22 The defendant sold her home at Gaythorne in January 2008 for $565,000. She kept the net proceeds so it is necessary to determine what is the appropriate add-back to ascertain the property of the parties at the hearing. There should be deducted from the net sale proceeds of $533,000 (which was arrived at by deducting the mortgage of $32,000 from the sale price of $565,000) further amounts to reflect the costs incurred in subdividing that land and fixing up the property to maximise its sale potential. Those costs amount to $43,000, which results in this amount being reduced to $490,000. There were legal fees of $13,552, which relate to the purchase of Mitchelton and they should not be deducted. The defendant also seeks to deduct her living expenses of $69,000 relying on the following passage from Marker v Marker (1998) FamCA 42:

"There seems to be no appropriate basis for notionally adding back moneys that existed at separation but which have been subsequently spent on meeting reasonably incurred necessary living expenses. Neither the Family Law Act nor the case law require that parties go into a state of suspended economic animation once their marriage breaks down pending the resolution of their financial arrangements. Parties are entitled to continue to provide for their own support. Whether any expenditure so incurred is reasonable or extravagant is a matter that can be determined by the trial Judge. "

23 There is nothing to suggest that the expenditure was excessive so this allowance should be made. The defendant also suggested that the add back should be reduced to reflect the use to which the property was put in acquiring subsequent properties. That is better taken into account when dealing with the adjustment process. The amount of the add back is $421,000.

24 This sale was part of a rearrangement of her family's properties which, unbeknown to the plaintiff, the defendant commenced prior to separation. In particular the evidence shows that in August 2007, the Gaythorne property was mortgaged to the Bendigo Bank and a substantial portion of the mortgage funds in the sum of approx. $500,000 were made available to the defendant's son, David, who then used those funds to assist in the purchase of another property of his own. This was done by selling the Mitchelton property owned by the defendant's son to the Mulcahy Family Trust in which the defendant maintains an interest along with both her sons. The Mulcahy Family Trust was approved for 2 loan facilities with limits of $560,000 and $80,000 respectively, both secured against the Gaythorne property, held solely in the name of the defendant and the Mitchelton property (to be purchased). The "purchase" monies in the sum of approx. $420,000 were raised by the Mulcahy Family Trust by drawing on the larger of the loan facilities. The recipient of those funds was the vendor of the Mitchelton property, which was the defendant's son, who then used those funds along with a further $80,000 drawn by the Mulcahy Family Trust on the second facility to purchase a further property for him.

25 The facility of $80,000 was repaid to the Bendigo Bank by the defendant's son after settlement of the purchase of his other property. Once the Gaythorne property had been sold in January 2008 some 5 months later, the proceeds of sale were used to pay out the loan facility that had been used primarily for the purchase of Mitchelton and the balance owed on that facility was reduced to $693.18. Subsequently, the defendant and her sons used that loan facility for their personal benefit and it was drawn back down to its maximum limit of $560,000 by April 2010. This included payments totalling more than $200,000 to the defendant's solicitors.

26 In October 2007 the plaintiff transferred $250,000 from the joint CBA account into an account in his own name. The plaintiff gave evidence that he was concerned to protect the property of the parties because he had become aware of new access to Internet banking by the defendant and a significant deposit of $250,000 had disappeared from his Internet banking accounts. In fact it had not disappeared from his accounts. He took steps to transfer that $250,000 into a net saver account in his sole name. He placed a "both to sign order" on the joint Equity Manager account (credit facility) after transferring $50,000 from that account to an account in his sole name. These amounts reflect in his present assets and thus there should n add-back of $300,000 to ascertain the properties of the parties at the date of the hearing. Given the lack of cross-examination of the defendant on this issue it is quite clear that he mislead the defendant by telling her the $250,000 had been put into a joint account when she challenged him on the matter.

27 In submissions the plaintiff suggested that the state of the parties property at hearing was as follows (I have added numbers which relate to the discussion in the following paragraph):

	Legal Ownership	Plaintiff's value
Assets
South Bank Road farm (as per agreed value)	Joint	$485,000
South Bank Road house (as per agreed value)	Joint	$448,000
50% interest in 30 River Road (as per agreed value of $265,000)	Defendant with son, Wade	$132,500
Station Ave, Gaythorne - net sale proceeds	Defendant (1)	$487,000
Investment account (CBA)	Joint	Nil
Operating account (ANZ)	Joint (2)	$24,255
Netsaver account (CBA)	Plaintiff (3)	$10,280
Monies owed by Plaintiff to joint funds being repayment of loan to Janmel retained by him	Plaintiff (4)	$Nil
Monies owed by Plaintiff to joint funds having been used by him for his sole benefit	Joint (5)	$4,700
Ford F100 utility (E)		$3,000
1954 Matchless vintage motorbike (E)		$3,000
Old timber-sided trailer (E)		$300
Boat & trailer at 290 South Bank Road	Defendant's son David	-
2004 Saab Sedan (E)	Plaintiff	$10,000
Household contents purchased prior to separation that are in the Plaintiff's possession (E)	Joint	$5,000
Artworks removed from the former home by the Defendant (E)	Joint	$15,000
Honda push mower, Cox ride-on mower, whipper snippers etc removed from the former home by the Defendant (E)	Joint	$3,000
Leftover stock from Ace High Hats (hats) & Techni 2000 (welding rods) - stored at River Road, now in Defendant's possession (E)	Joint (6)	$9,000
Glassware - already distributed between the parties (E)	Joint	$25,000
Farm machinery & equipment (E)	Joint	$20,000
Janmel - 50% (as per agreed value)	Joint	$236,196
Superannuation	Plaintiff	$17,000
Total assets		$1,938,231
Liabilities
ANZ equity manager account	Joint	$145,299
Re 282 SBR	Joint	$347,150
50% share of mortgage on River Road ($130,000)	Joint	$65,000
Total joint liabilities		$557,449
Net joint assets		$1,380,782

28 The defendant's position throws up the following differences between the parties.

(1) The add back for Gaythorne which I determine at $421,000.

(2) Operating account. Plaintiff $24,255 defendant $26,064. In the absence of any proper explanation for the difference between the parties as to the ANZ joint operating account, I will adopt the lower figure of $24,255.

(3) Netsaver account. The parties are agreed as to the present balance of $10,280. There is no agreement as to whether recent reductions were for joint expenses or simply personal payments for the plaintiff. The amount in the Netsaver bank account as at 1 July 2011 was $78,230. Given the agreement as to the present balance of $10,280 I will use that figure in the absence of evidence as to the purposes of the reduction.

(4) Janmell loan. Plaintiff Nil defendant $73,692 plus interest of $17,153.07. Having regard to the affidavit evidence of the plaintiff I will adopt his figures for the Janmell loans and monies owed for use of joint funds.

(5) Monies owed by plaintiff for use of joint funds. Plaintiff $4,700 defendant $165,612.81. Having regard to the affidavit evidence of the plaintiff I will adopt his figures for the Janmell loans and monies owed for use of joint funds.

(6) Ace High Hats. Plaintiff $9,000, defendant nil. Given the passage of time I will adopt the defendant's value of the Ace High Hats.

(7) Add back by Plaintiff for $250,000 and $50,000.

(8) Mortgage on River road. This was paid out by the Mulchay family trust on 17 January 2008.

29 Given that the defendant does not give a credit for interest on her add back it is inappropriate to require the plaintiff to give a credit for interest on his add back.

30 The plaintiff filed a detailed affidavit dated 2 September 2011 as a result of a direction made by the Court on 10 August 2011 to explain the situation with respect to bank accounts and use of funds. There has been no response or cross-examination on this material and the differences claimed by the defendant, to which I have referred, are not explained in her submissions.

31 With the net assets of $1,380,782 less $487,000, being the plaintiff's figure for the addback of Gaythorne, less $9,000 being the plaintiff's figure for the Ace High hat stock plus add backs of $721,000 (from (1) and (7) above) this makes a pool of $1,605,782.

The Lotto win

32 It is the plaintiff's submission that the assets to be considered for division should not include his conceded interest of $15 million being the result of the winning lotto ticket of his now wife, Susan Cooper, formerly Borrett. In August 2010 Mrs Cooper bought a ticket in Ozlotto at a newsagent and the next day returned to the newsagent to be told she had the winning ticket and that she had won $30 million.

33 The Plaintiff submits that asset should be quarantined and not be considered as part of the available assets for adjustment pursuant to s20 of the Act. It was submitted that there were a number of reasons for this, including:

• There is no contribution of any kind by the defendant to that asset;
• The asset came to be three years after the date asserted by the defendant as the date of separation;
• The asset came to be through the good fortune of the plaintiff's then partner purchasing the lotto ticket;
• The contributions of the defendant are able to be properly recognised from the other assets of the parties;
• The fact that under the Act there is no equivalent to s75(2) of the Family Law Act 1975 to make further adjustments based on a party's future needs and means.

34 The defendant submits that the plaintiff's entitlement/benefit, direct and indirect/enrichment in respect of the proceeds are relevant in at least these ways:-

(a) In determining on the particular facts of this case what is just and equitable adjustment of the parties' interests in the asset pool as constituted at the date of trial.

(b) In assessing exemplary damages against the plaintiff in the tort claim.

(c) The form of orders as regards adjustment by "cash or assets".

35 At this stage I will deal with the first of these submissions. The plaintiff's submissions dealt with the well-known cases that dealt with inherited properties as well as Lottery wins. An important case is Wallace v Stanford (1997) 37 NSWLR 1. The majority included Mahoney JA whose decision was later approved of in Evans v Marmont (1992) 42 NSWLR 70. An issue in Wallace v Stanford was how to deal with an inheritance received by one party. The inheritance was received by Mr Stanford following the death of his mother in 1984 and the parties separated in 1987. The evidence of the value of the property was that in 1989 it was worth $175,000 and at the date of trial it was worth $300,000.

36 At page 15 of the decision in Wallace v Stanford, Mahoney JA expressed the view in relation to property inherited by Mr Stanford that Ms Wallace "is not entitled to have or to have value from that property merely because Mr Stanford acquired it". Mahoney JA went on to test the proposition in the following way:

"Assume that a woman has by a lottery win acquired $1,000,000 the day before or the day after separation from a de facto relationship: what if any account is to be taken of that fact? There is in such a case no contribution to that sum by the other party to the relationship (I put aside special cases such as joint ownership of the money used to buy the lottery ticket or joint ownership of the ticket). Accordingly the Court may order part of the woman's winning to go to the man's benefit only if the fact that she has those winnings makes it "just and equitable" to give part of them to him. In my opinion the fact that she has such monies is not as such a ground for making an order which otherwise the Court would not have made. The winnings are a windfall which has no relationship to the exercise of the Court's discretion"

37 The plaintiff submitted that the determination of what is just and equitable is informed by the consideration of the contributions made by the parties to the assets. The plaintiff relies on the views expressed by Mahoney JA and which were approved by the five-member bench in Evans v Marmont. The plaintiff notes that the paragraph that followed the above passage of Mahoney JA's judgment includes the following:

"This does not mean that the fact that a woman when the order comes to be made is richer rather than poorer cannot affect the order to be made. In some cases it may. Thus one party may deserve to have an order but no order can be made because the other party has no property which can be adjusted to provide it. The Court may determine not to do what may be futile".

38 The plaintiff submitted that what was being said by Mahoney JA in these passages was that an adjustment that might be made to other assets of the parties as a result of a windfall gain would only occur if the non winning party had made relevant contributions to the other assets to such an extent as to justify such an order.

39 The defendant acknowledged in its submissions the authoritative nature of the pronouncement of Mahoney JA in Wallace v Stanford (1995) 35 NSWLR 1 that a party is not entitled to have or to have value from inherited property (a fortiori proceeds of a lottery win) merely because the other party has acquired it and, it further conceded, congruent with the judgment of Mahoney JA, that an adjustment may be made to the division of the asset pool (not including lottery winnings) that might or would not otherwise have been made but for the enrichment of one of the parties by that "windfall".

40 The defendant joined issue with the plaintiff's conclusions. It submitted that this proposition ignores for example, consideration of homemaker contributions and conduct rendering such contributions arduous of provision by the maltreated spouse. It also was submitted that it ignores individual or peculiar facts of each case:

"In this present case for example the desire of each party, especially Ms Mulcahy to build assets to provide homes for their respective children which drove her endeavours and from which Cooper benefited - all his aspirations of this type are met by windfall, whilst Ms Mulcahy's are thwarted to such extent that her children must now support her."

41 It is important in considering this matter to remember what was said by Gleeson CJ and McLelland CJ in Eq in Evans v Marmont at 70F through to 80A is the following:

"There is nothing in Section 20 of the Act of the kind found in Section 75(2)(o) of the Family Law Act which requires or entitles the Court to take into account as a factor alongside those referred to in par (a) and par (b) any fact or circumstance which in the opinion of the Court the justice of the case requires to be taken into account.

Most importantly Section 20 specifies in par (a) and par (b) the matters to which the Court is to have regard. As I have pointed out above, those matters would ordinarily have to be considered and a judgement 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 relevant considerations. It is by having regard to those matters that the Court may adjust property interest in a just and equitable manner".

42 I also note the useful discussion by Bryson JA in Chanter v Catts 64 NSWLR 366, [2005] NSWCA 411 where he said the following at [65-67]:

65] The discretion while wide is not unlimited; the perception of what is just and equitable relates to the contributions referred to in paras (a) and (b) and not to some other or wider view of just and equitable adjustment of interests in property: see Evans v Marmont (1997) 42 NSWLR 70 ; 21 Fam LR 760 per Gleeson CJ and McLelland CJ in Eq, approving views of Mahoney JA in the majority in Wallace v Stanford (1995) 37 NSWLR 1 ; 19 Fam LR 430 and in the minority in Dwyer v Kaljo (1992) 27 NSWLR 728 ; 15 Fam LR 645 and in turn substantially approving the views of Hodgson J at first instance in Dwyer v Kaljo (1987) 11 Fam LR 785 at 793. It should I think be understood that in Evans v Marmont Meagher JA, at NSWLR 98; Fam LR 786-7, agreed with this part of the judgment of Gleeson CJ and McLelland CJ in Eq.

[66] What I understand to be established by the majority view in Evans v Marmont is to this effect:

(a) The factors referred to in paras (a) and (b) of s 21 are fundamental factors influencing the judgment of the court.

(b) Considering contributions and nothing else cannot lead to any view on what is just and equitable in the circumstances.

(c) Factors other than contributions can have no independent bearing on what is just and equitable: they have only such relevance as they may have to the question: what is just and equitable having regard to the contributions of the parties?

(d) Factors other than contributions mentioned in s 20(1)(a) and (b) may be relevant to answer the question whether the contributions of one party have been sufficiently compensated.

(e) The financial circumstances of the parties are relevant to ascertain the property of the parties at the time of the hearing, to which any adjustments of interest are to be made.

(f) The needs and means of the parties have general relevance as subsidiary factors to the question of what is just and equitable having regard to the contributions of parties; but otherwise the needs and means of the parties have no relevance, and a disproportion in their assets is not a reason why it is just and equitable to make an adjustment.

(g) It would be unrealistic to attempt to evaluate contributions of the kinds referred to in s 20(1)(a) and (b) for the purpose of determining what is just and equitable having regard to those contributions in isolation from the nature and incidents of the relationship as a whole.

(h) Often it may be found that contributions of the kind referred to in s 20(1)(b) would involve shared activities or reciprocal benefits which do not give rise to any disproportionate burden which it would be just and equitable to satisfy by an adjustment of interests in property.

[67] Notwithstanding the strength of the dissenting judgments of Mason P and Priestley JA in Evans v Marmont, the course of judicial opinion leading to Evans v Marmont means, in my view, that earlier judicial consideration, including consideration in the Court of Appeal, of the significance of contributions in s 20(1) should not be treated as authoritative; this observation extends not only to Dwyer v Kaljo but also to Green v Robinson (1995) 36 NSWLR 96 ; 18 Fam LR 594 and Theodoropoulos v Theodosiou (1995) 38 NSWLR 424 ; 19 Fam LR 632. The history of diversity of opinion, two refusals of special leave to appeal to the High Court and convening a Court of Appeal of five members gives the majority decision in Evans v Marmont a special claim to authority. In particular, expressions of opinion in Green v Robinson no longer govern the application of s 20(1). I do not find any clear majority expression of view in Green v Robinson.

43 There are many other cases on lottery wins a number of which I have collected in Senno v Bailey [2011] NSWSC 679. The asset in this case only came into existence three years after the conclusion of the relationship and had nothing to do with the defendant. The defendant made no contributions to it and in my view it is not appropriate to take account of it in the adjustment process.

Financial contributions to the relationship

44 The evidence of the plaintiff's earnings as disclosed in his tax returns is:

• 1991/92 - taxable income $17,118, tax $2,691 - $270 net per week.
• 1992/93 - taxable income $23,365, tax $6,441 - $326 net per week.
• 1993/94 - taxable income $3,614, tax nil - $70 net per week.
• 1994/95 - taxable income $20,978, tax $4922 - $309 net per week.
• 1995/96 - taxable income $3,564, tax nil - $70 net per week.
• 1996/97 - taxable income $8,565, tax $474 - $160 net per week.
• 1997/1998 - taxable income $7,611, after tax $140 per week.
• 199819/99 - taxable income $5,807, after tax $110 per week.
• 1999/2000 - taxable income $6,752, after tax $120 per week.
• 2000/2001 - taxable income $13,848, after tax $225 per week.
• 2001/2002 - taxable income $8,312, after tax $160 per week.
• 2002/2003 - taxable income nil.
• 2003/2004 - taxable income nil.
• 2004/2005 - taxable income nil.
• 2005/2006 - taxable income nil.
• 2006/2007 - taxable income $26,951, after tax $434 per week.

45 It was suggested that these returns do not truly reflect his earnings given deductions such as depreciation and expenditure and travelling expenses which were for the parties' personal benefit. This led to an analysis of these aspects in the returns which showed:

• for the year 1991/92 there was no depreciation and no travelling and living expenses,
• for the year 1992/93 there was no depreciation and no travelling and living expenses,
• for the year 1993/94 there was $139 for depreciation and $6,958 for travelling and living expenses,
• for the year 1994/95 depreciation was $115 and travelling and living expenses were $1,000,
• for the year 1995/96 depreciation was $116 and travelling and living expenses were $893,

for the year 1996/97 depreciation not applicable, travelling and living expenses not applicable,

• for the year 1997/98 not known,
• for the year 1998/99 depreciation $717, travelling and living expenses $123,
• for the year 1999/2000 depreciation $205, travelling and living expenses $1,488,
• for the year 2000/01 depreciation $2,288, travelling and living expenses $996,
• for the year 2001/02 depreciation $938, travelling and living expenses $1,324,
• for the year 2002/03 depreciation $1,638, travelling and living expenses $1,988,
• for the year 2003/04 depreciation $16 and travelling and living expenses nil,
• for the year 2004/05 depreciation $2,116 and travelling and living expenses nil,
• for the year 2005/06 depreciation $2,815, travelling and living expenses nil.

46 Plainly there is little force in this submission and the plaintiff's earnings on the evidence available were quite low.

47 The only evidence of the defendant's income is as follows:

(a) In 1991 her sole parent pension was $407 per fortnight.

(b) In August 1993 her pension was $312.51 per fortnight and for the period 14 December 1992 to 30 June 1993 it was $4,963.60.

(c) In March 1994 her carer's pension was cancelled and she received a Newstart allowance of $286.40 per fortnight.

48 What happened to the pension after this does not seem to be the subject of evidence. When the parties brought their tax affairs up to date in 2006 and 2007 there were accounts prepared which showed them each sharing equally in the profits from their businesses and rentals.

49 Plainly the parties received rental income and also capital profits from their investments.

50 The rental income from Grafton was first declared in the 2003/04 tax return accounts when $26,945 was declared and for the first time the Yamba rent was declared at $3,950 in the same return. The plaintiff's tax returns did not declare any income from the Yamba property until that year.

51 In the accounts for the year ending 30 June 2005 the Grafton rent was declared at $61,914 and rent from Yamba at $513. In the 2005/06 accounts the Grafton rent was declared at $58,471 and rent from Yamba nil.

52 From the table at [18] above the capital profits (on the basis of purchase and sale price) were:

• Coldstream street $292,500 in July 2004
• Oak avenue $61,500 in September 2003
• Grafton $359,000 in August 2007
• Part of farm $288,000 approx. in 2007

53 Such figures take no account of borrowings or expenses but at least illustrate a source of continuing funds to support the parties.

Non-financial contributions to the relationship

54 Before I consider the nature of the homemaker contributions in this matter I will first deal with the various assaults alleged in this case.

55 In summary the various alleged assaults appear to be the following:

• Use of abusive language from 1993 in these terms (in Paras 117 & 211 of the defendant's affidavit)

"All you Mulcahys are selfish. You've got no idea how to fucking live or behave" and

"You're a private school overeducated cunt"

"You've all got a holier than thou attitude. The holy fucking Mulcahy trinity need a fucking smack in the fucking mouth".

He would also say to me on hundreds of occasions "If you were a bloke I'd fucking knock your head in". He would also say to me on many occasions "Someone should give you a fucking smack in the mouth". On other occasions he would say to me "I should smack your fucking head in" or "I should give you a fucking smack in the mouth".

• Arguments in 1993 about the parties relationships with their children (in paras 126 and 127) including abuse in these terms:

including "you're a miserable, selfish bitch. You have your children. What about giving me time and space with mine."

• In June 1995 the plaintiff, after the defendant asked when a shed in the back yard was going to be completed, grabbed her by the arm, dragged her down the back stairs to the yard where the unassembled shed lay and abused her in these terms (in para 206):

Bob: "What the fuck to do you call that? [indicating towards the disassembled shed]

Me: The shed's not for me or Station Ave, it's purely for Wetcheck's storage.

Bob: I can't fuckin' stand the sound of your fuckin' voice or the fuckin' sight of you. Get out of my fuckin' sight. Disappear. If you don't, I'll fuckin' kill you. I'm fuckin' out of here. I'm going to pack my stuff and find somewhere else to live. Don't come back till I'm gone. I promise you I'll fuckin' kill you."

• In late 1996 in a burst of anger ordered the defendant out of the property at Maroochydore in these terms (in para 237):

"Get out of my fucking place. I'll get a fucking flat bed truck and pitch your fucking gear over the fucking balcony".

• In late 1996 ordered the defendant out of the bed and took her back to her house at Gaythorne. (Para 238)
• In late December 2000 after a discussion about helping the plaintiff's son Trevor buy a property, which the defendant resisted, the plaintiff threatened to shoot either himself or the defendant. He became very angry and tipped a beer over the defendant. (Para 312 tx 319). During it he said:

"This is driving me fucking nuts, I really should get rid of the rifles. I am either going to shoot you or shoot myself or both of us."

• A few days after Christmas 2000 he complained to the defendant in these terms: (304)

"I've had to move furniture downstairs at Gaythorne and pack up the tool room, and I had to get Shane to help me - it's not my responsibility to do this shit. I've also left the key with the tenant. The fucking Mulcahys all fucking need a fucking smack in the fucking mouth".

• The threat to shoot was repeated in mid 2007
• On 18 February 2008 during an attempt at reconciliation the plaintiff suddenly burst out with (at para 582):

"All our successes have been due to me. All our failures are due to the fucking miserable Mulcahys ... Your bloody boys in particular.

I could easily destroy David's business. All it would take is one phone call.

I could easily get that general manager's position Wade is applying for at Dimension Data. I could get that job over Wade without doubt ... piece of piss!

I could destroy them. I know people who could seriously hurt them, the fucking miserable arrogant bastards.

That fucking David should have his fucking lips cut off, with that fucking arrogant smirk.

I ought to break both their legs.

It just takes one phone call to destroy their prospects. Cunts!

I've had many conversations with David's staff. I know what they really think of him.

David and Wade are only using you. Once they've got what they want from you, they'll ditch you.

The reason we're in this fucking mess is because of your fucking kids."

• On 6 may 2008 the plaintiff to the knowledge of the defendant was to receive the results of medical tests. The defendant did not ring up to enquire about the results so the plaintiff rang and said repeatedly (in para 597):

"Cunt....cunt... cunt... you miserable selfish fucking cunt"

56 I will deal with the factual disputes in respect of the alleged assaults first and then turn to the effect on the defendant of those assaults. In general I note that the defendant gave extensive evidence on the effect of the incidents upon her. It will then be necessary to consider the application of the medical evidence in respect of the running of any time bar pursuant to the Limitation Act 1969 so far as it concerns the defendant's cross claim for assault.

57 This requires a consideration of issues of credit in respect of each party and assumes critical importance in this case because the assaults, which happened at home, were not witnessed by any outsider.

Credibility of the plaintiff

58 The plaintiff like many witnesses was not always good with dates. Two examples from the defendant's submissions are appropriate.

At T658, line 25 Cooper was asked questions about the period he was in Melbourne and at line 27 said he believed he said it was 1995 when he went there. An examination of Cooper's 1993/94 and 1994/95 Tax Returns reveal that he was clearly running Wetcheck Roof Restorers business in Enoggera in Queensland and demonstrates that the evidence of Ms Mulcahy as to when he went to Melbourne, namely 1993, is correct.

Cooper is clearly incorrect in his recollection of dates. Again at T658, line 27 in reference to when he went to Melbourne he said:-

I believe I said it was '95 I went there.

whereas in his affidavit of 22 September 2009, paragraph 12 he said in "about 1992" he moved from Brisbane to Melbourne and stayed for about a year.

59 Another example was as follows:

At T725, line 40 Cooper was asked when he first met Peter George and answered "in the early 2000's I believe" and then said "the early 2000's 1 2 3 something like that" however when suggested as follows, line 45:-

Question: You see may I suggest to you that it was 2005?

Answer: Yes it could be yes.

This exchange demonstrates that Cooper's memory is consistently faulty and he would seemingly say anything to get to the next question if he suspected there was proof of the proposition being put.

60 At times he could be argumentative. An example appears at T749 when the plaintiff was cross-examined about the beer incident. The following is seen at line 43:

Question: Following those events you drove away for the day did you not?

Answer: Drove away.

Question: I suppose you deny that?

Answer: No hang on I drove away for the day. Well hang on this is supposed to happen in the afternoon or the evening. Not only that I've allegedly been drinking and yet I get in a car and drive away. Ask anybody around. I do not drink during the day. I certainly do not drink when I'm driving and I certainly do not drink when I'm working in the shed or on the farm because if I got injured Ms Mulcahy could not drive me to hospital. She cannot drive so in terms of me drinking while I'm working it doesn't happen.

61 It was submitted that this was an example of Cooper's editorialising - said to be one of the signal stigmata of the unsatisfactory witness.

62 At T750 line 9 the plaintiff was directed to the opening words of paragraph 318 of Ms Mulcahy's affidavit,:-

Question: - do me the courtesy of looking at paragraph 318 and tell me what its opening words are?

Answer: "In the morning."

Question: "In the morning Bob drove away"

Answer: Right.

Question: You're just constructing arguments to try and persuade the Court that the truth.

Answer: No you said to me...

Then at line 38:-

"Question: So your lengthy dissertation on driving at night when you've been drinking doesn't really...

Answer: That's correct it doesn't apply.

Question: ...assist does it?

Answer: No it doesn't but it certainly applies in terms of working drinking and working in the shed.

63 This in my view illustrates his argumentative nature.

64 There are other more serious matters. In his affidavit of 22 September 2009, paragraph 25 the plaintiff, referring to a discharge of a mortgage to the ANZ Bank over the property at 30 River Road Harwood owned by Ms Mulcahy and her son Wade, said as follows:-

On the basis that the property has been re-mortgaged and the bank required all parties' signatures prior to discharge I believe that someone forged my signature on the Discharge Authority.

65 The mortgage had been re-financed with the Bendigo Bank Limited.

At T598, line 9:-

Question: And you have taken care to make sure that everything in your affidavit was true?

Answer: Yes.

Line 12:-

Question: Where is the forgery of your signature, a signature that purports to be that of you, Robert Cooper?

Line 17:-

Answer: It's not there,

Line 21:-

Answer: No it doesn't exist.

At T599, line 4:-

Question: Do you still maintain there's been a forgery?

Answer: No I do not.

66 There was no re-examination of the plaintiff in respect of this matter.

67 It was submitted that this exemplifies a sworn allegation of criminal conduct that was patently untrue and shows how much was required to get just one frank admission of an obvious truth from this witness. In my view it exemplifies a careless attitude to evidence.

68 An example of a tendency to exaggerate appears starting at T605, line 26 - 40. The plaintiff was asked questions about paragraph 516 of his affidavit of 4 November 2010 where he deposed he "spent many nights with her in Brisbane and we had a full and active sexual life" after 24 September 2007 the date of separation.

T605, line 43:-

Question: That was the date (24 September 2007) you deposited Ms Mulcahy in Brisbane for dental treatment?

Answer: I think that was the day yes.

Question: That is true is it? That by her invitation you spent many nights with her in Brisbane.

Answer: Yes I did.

T606, line 1:-

Question: Could I suggest to you that in an email on 7 August 2008 you wrote these words

"Think about how many times you invited me to come and see you and spend some time with you. Grand total since October once."

Your words or not?

Answer: Yes my words.

(the period involved was some 10 months).

69 It was submitted the plaintiff was caught out lying in an affidavit. He went on later in evidence to give an explanation, which was a most curious interpretation of "invitation" given his use of the word invitation in his email. Plainly he was exaggerating.

70 The plaintiff's conduct in an attempt to settle the case shows that he is quite capable of attempting to gain an advantage by not disclosing the whole circumstances. At T588, line 25, Cooper agreed that he had his then solicitors file a Notice of Ceasing to Act on 31 August 2010. This was 20 days after the $30 million lottery win. At T588, line 27, Cooper agreed he came to Sydney to negotiate a settlement on his own behalf with the solicitor representing the defendant. At T591, in answer to question as to why he elected to undertake his own defence at lines 5 - 10, the plaintiff replied:-

For various reasons I was, I believed I was facing bankruptcy. I was facing losing the relationship which I held very strongly with my new partner, now my wife, caused by, I believed a deliberate attempt to - and in fact it was a stated attempt that I was going to be bought to my knees and if that involved me being sent bankrupt, well so be it and it was at that point.

At T591, line 10:-

So it was economic stress, the fear of bankruptcy?

Answer:

Absolutely.

71 The transcript at T687 illustrates the $30 million lottery win was 10/11 August 2010. The plaintiff's current wife, Ms Borrett, had her last day at Janmel on 19 August 2010. On 31 August 2010 the plaintiff's solicitor was no longer acting (lines 1 - 10) and after 27 August 2010 the plaintiff was self represented.

72 On 30 September 2010 the plaintiff sent an email to Marco Williams of AR Conolly & Company, the defendant's solicitors. T689 shows the 30 September email was sent "around a week maybe less than or maybe more than the days on which Shane and Trevor's contracts for their new homes were accepted" - line 5. The plaintiff agreed he said in this 30 September email to AR Conolly:-

I do not have the funds or the borrowing capacity to meet those obligations and therefore the bank would take possession of the house at ............... which they would hold as security to cover their money. If I can be so bold as to say I believe the tactics of your client was to beat me into submission by running me out of money through these proceedings. Well it now appears that your client's tactics have been successful. Perhaps a little too successful for her own good.

T689, line 47:-

That's what I wrote yes.

73 At T690, lines 5 - 10 the plaintiff denied that he was pretending to go bankrupt or that he set out to deceive the opposing lawyers by pretending that he could not afford a lawyer and was about to go into bankruptcy.

At T692, line 7:-

Question: Mr Cooper I take it that you hotly deny any proposition at all that you were anxious about the other side finding out about your spouse's lotto win. You deny any anxiety about that do you?

Answer: Of course I do not deny that.

74 It was submitted in light of the plaintiff's admission that he is entitled to half of the $30 million lottery proceeds, that it is an available finding, and the Court would come to the conclusion, that the purpose of approaching AR Conolly and suggesting he was going bankrupt was to disguise the fact that he had funds available to him and that the matters set out in the email were no more than a pretence and set out to deceive.

75 The plaintiff referred to his evidence at T691:

Q. That it was her proposal that it be only in her name?

A. Mr Williams, the house--

Q. Is that what you tell his Honour?

A. I'm telling you the house at Coffs Harbour was bought by Miss Borrett with her money because, when she won the Lotto, she refused to - after a couple of days - this didn't happen on the first day - after a couple of days the realisation came to her that I was in a fair sort of a mess with this case. It looked very much like I was going to run out of funds before it even looked like coming to a conclusion.

Q. Yes?

A. She had been harassed and intimidated by the defendant's son at our

home. She felt that if the knowledge of $30 million and that she was still living there - she wanted to get away. She wanted to go to Coffs Harbour. So, she went down there. I helped her in looking for the properties, or at properties. She bought a home in her own name and she said to me:

"I'm sorry, until you get through this mess, we are not going to be in

a de facto relationship, because this woman will do anything to get

her hands on this money."

76 At 692 the following occurred:

Q. Mr Cooper, I take it that you hotly deny any proposition at all that you were anxious about the other side finding out about your spouse's Lotto win. You deny any anxiety about that, do you?

A. Of course I do not deny that. What I am saying to you is my greater anxiety was the fact that I was up to my armpits in trying to deal with this mess. My then partner, who had $30 million - and we both read the pre-nup agreement and it seemed to us that money didn't come into play; it was to do with joint accounts and property. And I'm saying to myself: Well, this is handy. I can't even fund the case I'm in. If Sue goes away from me, who knows what happens in six months, 12 months, 18 months' time, particularly if she received any more harassment. And I don't have the funds, whether I'm entitled to it or not, to pursue any entitlement, whether I had some or not, to get it back from her. I couldn't even fund the case that I'm in, let alone the case that potentially would come down the track. I was anxious about losing my partner. Very anxious.

Q. Have you finished?

A. Yes, I have.

77 The plaintiff admits he was anxious about the other side finding out about the lotto win, because if they found out there would be no settlement. His concerns about his partner leaving him may have been true but he still attempted to obtain a favourable outcome by making statements, which were deceptive, as they took no account of the fact that she may not leave him and he may receive substantial funds.

78 The more serious matter concerns his approach to the defendant's case by making blanket denials of a large part of the case. At T599, line 28 to 37 referring to the plaintiff's affidavit of 4 November, it was put to him that there were 432 denials of paragraphs in the defendant's affidavit and, of those, 300 were blanket denials. At line 41, the plaintiff agreed that he denied paragraph 127 and did not expand upon that denial (line 49-50). At T600, line 1, referring to paragraph 127:

Question: So, on oath, you have put before the Court the proposition that everything in that paragraph was untrue?

Answer: Yes.

79 At T600, line 7 the paragraph says:

The conversation continued for an hour and Bob shouted at me and repeated words including you're a miserable selfish bitch, you have your children what about giving me space, time and space with mine.

Bob shouted at me and stood over me looking down at me close to my face.

Line 21:-

Question: I take it you deny it?

Answer: Yes.

Question: It is totally untrue, is it?

Answer: Totally untrue.

80 At line 25 is was put to him that Ms Mulcahy said:-

Finally I left the room and I went to the lounge room and sat down. I felt intimidated and shaken.

Question: Again totally untrue?

Answer: I don't know. The incident didn't happen.

Line 31:-

Question: So it would be totally untrue for your former spouse to have said for example the whole incident in paragraph 127 being denied that you had left a note. You deny that, do you not?

Answer: I don't know what incident you are talking about.

Line 47:-

Question: You, on oath, have denied the entirety of that paragraph, have you not? You've already said that have you not.

Line 51:-

Answer: Yes the entirety. I did write a note, yes, but not to do with that alleged incident.

At T601, line 1:-

Question: So, in telling the whole truth, you did not see fit to say "Oh I did write that note but it wasn't connected with this incident" is that what you tell the Court?

Answer: Yes I am yes.

81 At T601, line 19, having been shown the note,:-

Question: What is it?

Answer: A note.

Question: What does it say?

Answer: It says "I'll be back and after I get back from Melbourne to get the rest of my stuff. I strongly advise you not to be here so I'll ring first. PS I can't believe the poison you've got stored in you going back so far." Then it says "F you."

Line 30:-

Question: Then it says what?

Answer: F you.

Question: No it does not. It says in great big capitals "FUCK YOU" with exclamation marks does it not?

Answer: Yes it does.

Question: Just tell me please and tell the Court, what did you mean when you said "I strongly advise you not to be here"?

Answer: What I meant by that was more than enough had been said to each other about some things that had been going on at the time and enough had been said. I was leaving to take the heat out of the situation. I was going to ring when I was coming back so whatever conversation had happened was going to desist and finish.

Line 47:-

Question: You finish the note saying "Fuck you" is that it?

Answer: I said I left to take the heat out of the situation.

T602, line 19:-

Question: Why did you put that in there "I strongly advise you not to be here"?

Answer: Because more than enough had been said in the argument. The argument had got very heated. I left to take the heat out of the situation.

I wrote a letter. I was quite angry and I wrote that to say: So that this does not continue I'll give you a call letting you know that I'm coming. I'm coming back to pick up my stuff and essentially I don't want to see you anymore or listen to all that had been going on.

Question: You did not intend to be intimidating to her in any way did you?

Answer: Mr Williams if I intended to be intimidating to her I would not write a note I would have walked into the lounge room and intimidated her.

82 Here it was submitted, is caught an echo of what the plaintiff in fact did in the "beer assault".

83 The handwritten note referred to is Exhibit 8, tendered at T603. Paragraph 127 of the defendant's affidavit sets out the fact of the note and the actual words used in it.

At T603, line 9:

Question: Now would you like to tell us how you say it came about that you wrote Exhibit 8?

...

Answer: We had quite a strong argument I guess and it had gone on for a fair while and it was getting more and more intense. I was being blamed for everything except global warming and the unrest in the Middle East. It was getting very frustrating for me so it blew up. I decided not to be there anymore to take the heat out of the situation.

At that point I was on my way to Melbourne to have a look at the business that we were considering taking over within the next few days. I wrote that note. I started to write you know I'm not responsible for everything that goes wrong in your life. I guess I just didn't want to continue on with that. I scrubbed through it and wrote those last two letters. I left and that was it.

84 The defendant submits that the blanket denial of everything in paragraph 127 which was re-affirmed in evidence T600, line 1 (set out above) demonstrates that the plaintiff was prepared to deny to the nth degree, unless otherwise caught out, anything that remotely suggested any of the allegations made by the defendant were true.

85 At T600, line 47 - 51 (set out above), the plaintiff's admission that he did write a note but not to do with that incident was said to demonstrate unequivocally his attempts to shuffle away from matters, which may prejudice him. The defendant submits that he ought simply not be accepted as to what he says.

86 Given his approach, which is plainly wrong, it is very difficult to accept his blanket denials. A more important matter is his inability to remember what was said in the heat of the moment. This is well illustrated in the evidence concerning the "head chatter" article. At T651, Cooper was cross-examined about Exhibit 9 the "Head Chatter" article. At line 20 he agreed that David Bourke gave him the document. At line 27 he conceded he probably had a conversation about it with the defendant. (Note the plaintiff first denied recollection of the article at all and asserted it was not in the defendant's affidavit - T720.12.)

87 At T652, line 4 and onwards the plaintiff said:-

I might have said "Look, you know, I better read it" or because I can never stop thinking about things you know. I don't know he gave me quite a number of things actually...

At line 15:-

Question: Mr Cooper you know I'm questioning you about anything you said to Mrs Mulcahy concerning you in the context of the receipt of that article? You know that is what I am asking you about don't you?

Answer: Yes I do Mr Williams and what I'm saying to you is that I believe I may have said that that, you know, it could be me because I don't stop thinking about things as well in the context of head chatter.

At 20:-

Question: You know the defendant has deposed on oath concerning what you said in the context of the article don't you?

Answer: No I do not. I don't believe she mentions this article at all in her affidavit.

88 At T652 line 25, paragraph 587 of the defendant's affidavit was put to Cooper:-

Question: Tell me if this rings any bells with you Mr Cooper - paragraph 587

In approximately June or July 2008 Bob and I talked about this and other incidents. Bob had said to me on other occasions in the past words to the effect of "If you were a bloke I'd knock your fucking head in and I forget you're a sheila and not a bloke". Bob and I talked about this and other incidents after Bob showed me an article given to him by David Bourke about head chatter.

Bob told me ..."

Is this coming back to you at all?

Answer: It is now yes.

At line 47:-

Question: Bob told me "I virtually lose my mind at times and I don't recall what I have said. You know I would never hurt you. I said to him "Remember when you dragged me down the stairs and threatened to kill me?" He said "I honestly and truly don't remember that. I didn't hurt you did I? I know I honestly would never hurt you."

I did not tell him I'm scared of him. I'm scared he will harm me and my sons in some way. I'm afraid of him. I'm deeply afraid of him. I'm deeply increasingly disturbed by his behaviour.

Now do you remember the context now?

Answer: Yes I do.

At T653, line 10:-

Question: Do you remember on your oath point blank denying that entire evidence that I've read out to you?

Answer: I don't know whether I point blank but I'm sure I denied it because I was denying the whole sequence of events that had been portrayed, yes.

89 The defendant submits that these questions and answers reveal that Cooper's failure to remember anything about the article dealing with head chatter in evidence (T652, lines 20 - 25) demonstrates that, whether he remembered or not, he was prepared to deny any suggestion put to him either from the defendant's evidence or affidavits or in cross-examination that was adverse to his interests, unless and until confronted with no other alternative.

90 At T720, line 11 while being cross-examined about paragraph 587 of the defendant's affidavit the plaintiff was asked:-

Question: I want to ask you this. Do you absolutely deny ever having said words to the effect "I virtually lose my mind at times and I don't recall what I've said". Do you absolutely reject you ever said anything to that effect?

Answer: I can't answer that yes or no, would you allow me to tell the one time I did say something?

Question: Mr Cooper ... your counsel has a right to re-examine you.

Answer: OK well the answer's no, not those words in that context.

Question: I asked you whether you would deny ever having said words to that effect "I virtually lose my mind at times and I don't recall what I've said." Now will you on oath say you have never said to her words to that effect?

Answer: I will deny it.

91 The defendant submits that analysis of the answers given support the submission that the plaintiff was consistently evasive. The contrast between an answer "well the answer is no, not those words in that context" and an absolute denial that he had ever said to her words to that effect, it was submitted does not stand up.

92 The subject matter namely losing his mind and not recalling what he has said are very important given that the assaults invariably may have occurred when the plaintiff was very angry and violent. Further cross-examination on the note left before the trip to Melbourne illustrates the point.

At T603, line 12:-

We had quite a strong argument ... ... it was getting very angry very frustrating for me, so it blew up

T603, line 50:-

It was a heated argument.

T604, line 8:-

Question: Were you angry?

Answer: Yes.

T604, line 41:-

Question: So what do you say had provoked the argument?

Answer: I don't remember.

Question: Having left that note you do not remember what the argument was about?

Answer: No I don't.

93 If he cannot remember what provoked the arguments he may not even remember what he said.

94 At T692 the plaintiff was asked:-

Question: Have you said in your affidavits you've only once lost your temper with Ms Mulcahy?

Answer: I'm not losing my temper.

Question: I wonder if you'd answer my question.

Answer: What was the question?

Question: Can you not remember?

Answer: I want you to repeat it clearly to me please.

Question: Do you find as she alleges

Answer: No.

Question: ... in her affidavit. ...

Answer: No I'm wanting to know whether you, you asked me about losing my temper.

Question: - that you cannot remember the things that you have said when you are angry?

Answer: Uh uh.

Question: Is that the problem you're having now?

Answer: No it's certainly not.

95 At T693 the plaintiff recalled he had only lost his temper once in the 16 years with the defendant.

96 The defendant submits that the demeanour of the plaintiff when being asked the above questions, and on other occasions in evidence, demonstrated a disposition in keeping with that described in the defendant's affidavit and oral testimony. The defendant submits that the assertions made by her as to the plaintiff's behaviour were borne out in Court and she ought be accepted.

97 From my assessment of the plaintiff in the witness box and notwithstanding his restrained approach to the questioner for most of the time, he appeared to be a person who could become quite angry. He was a big bluff man. It may well be that he has difficulty recalling the details of what happened when he was angry. This is another difficulty, which compounds the main difficulty namely, that he has made a blanket denial of the assault cases which is not appropriate. Accordingly I do not accept that he always gives accurate evidence.

Credibility of the defendant

98 In Dowrick v Sissons (1996) 20 Fam LR 466 I first referred to the parties duty to properly present their financial circumstances to the Court. This view has been adopted on many occasions since that case.

99 In this case it was held that

In proceedings under the De Facto Relationships Act 1984 NSW, s 20 , there is a clear obligation on each of the parties to make full and frank disclosure of all relevant financial circumstances. The obligation arises independently of any order for discovery.

100 At 472 I stated:

The principles to be applied in this regard are important and need some discussion. The Family Court of Australia has consistently held that there is a clear obligation on a party to proceedings in that court to make full and frank disclosure of all relevant financial circumstances. That court has adopted what was said by Lord Brandon for the House of Lords in Livesey v Jenkins [1985] AC 424 at 437:

I stated earlier that, unless a court is provided with correct, complete and up-to-date information on the matters to which, under s 25(1), it is required to have regard, it cannot lawfully or properly exercise its discretion in the manner ordained by that subsection. It follows necessarily from this that each party concerned in claims for financial provision and property adjustment (or other forms of ancillary relief not material in the present case) owes a duty to the court to make full and frank disclosure of all material facts to the other party and the court. This principle of full and frank disclosure in proceedings of this kind has long been recognised and enforced as a matter of practice. The legal basis of that principle, and the justification for it, are to be found in the statutory provisions to which I have referred.

I have also taken the same approach in this jurisdiction. See a judgment of Taggart v Gaston (unreported, 7 December 1992). A similar approach is also taken in the Equity Division in Family Provision Act matters see Westreat v Corban (unreported, Young J, 29 September 1989). In my judgment in Taggart v Gaston I referred to the need to identify in this context the amount of the assets which had not been disclosed to the court pursuant to the obligation which I accepted arose in the proceedings. Such obligation incidentally arises independently of any order for discovery.

101 In this regard there are two matters of importance concerning the defendant. The first is that until day 6 of the trial the plaintiff had not fully disclosed what had happened to the sale of Gaythorne and the purchase of a property by the Mulcahy Family Trust.

102 The second matter was that it only emerged during the hearing in cross-examination that the rental from the River Road property was received in a CBA account operated by the defendant's son on her behalf. It will be recalled that the defendant owned a 50% interest in that property.

103 Both these matters are serious matters that affect the credit of the defendant.

104 It was suggested by the plaintiff that the defendant was prone to exaggeration and reference was made to the change in paragraph 211 of her affidavit where the words, "hundreds" in one place was changed to "many". This was in reference to the occasions when the defendant alleged the plaintiff said, "Someone should give you a fucking smack in the mouth". This to my mind does not illustrate a general tendency to exaggerate her evidence.

105 What is of more concern is her failure to answer questions. On numerous occasions the defendant commenced an answer to a question, "Oh my goodness" or "goodness". Very often what followed on these occasions was either a lack of recall or a suggestion that someone else be asked about it or even more frankly, on one occasion, "Oh my goodness, I do not know how to answer that question".

106 On another occasion, "Oh goodness. I - I don't - I don't recall specifically, no".

107 On one occasion when she was asked what her current medication was she said, "Goodness, I think you will have to ask the doctors/I think it is - ".

108 Although there are some matters which indicate that the defendant has not put her case forward to the Court honestly in that she has not given all necessary financial information I did not get the impression that she was prone to exaggeration. She did appear, however, to evade answering some questions. Accordingly, her evidence has to be treated with caution.

The individual assaults

109 I note that an assault consists of:

"Intentionally creating in another person an apprehension of imminent harmful or offensive contact. If the threat is actually carried out, the whole incident is properly described as an 'assault and battery'. Usually both offences occur in rapid succession, and in common parlance the word 'assault' is frequently used as including a battery. But the one offence may be committed without the other. A battery may be inflicted on a victim who does not expect it and therefore cannot complain of an assault, as where the victim is struck from behind without warning. Conversely there may be an assault without battery if the threat to inflict lawful force is not in fact carried out.

Assault allows redress for the creation of an undesired emotional state unaccompanied by external injury. This is unusual for tort law, but it was decided at an early stage that assault warranted legal redress, partly as an aid to punishing offenders who had attempted to commit the crime of battery, partly because it minimised the temptation to retaliate.

Since the gist of assault lies in the apprehension of impending contact, the effect on the victim's mind created by the threat is the crux, not whether the defendant actually had the intention to follow it up. The intent required for the tort of assault is the desire to arouse apprehension of physical contact, not necessarily to inflict actual harm. Hence it is actionable to point a pistol for the mere purpose of frightening. It is sufficient if the threat would have aroused an expectation of physical aggression in the mind of a reasonable person not afflicted with exaggerated fears or peculiar and abnormal timidity. But the plaintiff need not have been actually frightened: apprehension is not the same as fear, and one too courageous to be intimidated is nonetheless entitled to redress. There must, however, be an apparent ability to carry out the threat immediately. Lunging at someone who is obviously out of range does not count as assault, unless the intended victim had reasonable grounds for fearing that the defendant would immediately have come within range and landed a blow. It is an assault to point a pistol at another in such a way as to induce the belief that the plaintiff is about to be shot even if, unknown to the plaintiff, the pistol is unloaded. But a threatened coup d'etat did not constitute an assault where no one capable of carrying out violent attacks had yet arrived in the relevant country.

See Carolyn Sappideen et al, Fleming's The Law of Torts, 10th ed (2011) Thomson Reuters at 2.70.

110 I will first deal with those assaults where there are some suggestions of corroborative material. As I have already mentioned there were no witnesses to any of the assaults.

1. Alleged assault in May 1993 (threat in note)

111 The relevant evidence given by the defendant was as follows:

126. In the meantime, before he left for Melbourne, Bob and I planned to take a short holiday in Yamba, where we had moved the caravan. We were going to have all our children with us, but before that happened Bob said to me

Bob: "Why do bloody Wade and David need to come? I really want to spend time with my kids - I see yours every day. "

Me: "Both you and your kids have been welcome to stay at Station Avenue whenever you wanted, over the past couple of years, and we have all made you more than welcome."

Bob: "I'm a bloody absentee father - you wouldn't fucking remotely know what that feels like."

He was to repeat this last comment to me often, for many years.

127. The conversation continued for an hour and Bob shouted at me and repeated words including "you're a miserable, selfish bitch. You have your children. What about giving me time and space with mine."

I said: "It would be good if they were all together with us on this occasion. I don't understand you with Dave and Wade. They were so good to you when you were down and out. Have you forgotten?".

Bob said: " Fancy remembering those things. How petty. That's poison you've got stored up saying that to me. You've got a memory like an elephant."

Bob shouted at me and stood over me looking down at me, close to my face Finally, I left the room. I went into the lounge room and sat down. I felt intimidated and shaken. I could hear Bob moving about in the bedroom. That evening I did not see him again. After a while I heard his car start. I went into the kitchen and I found a written note by Bob which said:

"I'll be back after I get back from Melbourne to get the rest of my stuff. I'd strongly advise you not to be here so I'll ring first. PS. I can't believe the poison you've stored going back so far. FUCK YOU!!!!!"

128. We did not take the holiday as planned.

129. To my knowledge, Bob spent a week or two with his children at Noosa and then went to Melbourne to take over the Roof Shield business.

112 A copy of the note left by the plaintiff is in evidence as exhibit 8. It can be recalled from previous evidence that I have quoted above that the defendant concedes that he wrote the note, that it was preceded by an argument which occurred before a trip by him to Melbourne. The defendant could not recall what the argument was about. Notwithstanding this he denied the conversations alleged by the defendant.

113 The reference to her sons being good to him was an occasion when the plaintiff first came to live with the defendant when he wanted to borrow $7,000 to buy a car. He could not borrow it and he used her sons credit worthiness to borrow the money. Given the matters that support the defendant's version of events I will accept her evidence of the conversations.

114 She has spoken in her evidence of fear and the threat in the note is sufficient to establish the circumstances as an assault.

2. Alleged assault on 18 February 2008 (verbal attack)

115 The defendants evidence was as follows:

582. On 18 February 2008 as part of our efforts at reconciliation, Bob and I were having dinner together on the deck at Mitchelton when Bob suddenly and unexpectedly started screaming at me:

"All our successes have been due to me. All our failures are due to the fucking miserable Mulcahys ... Your bloody boys in particular.

I could easily destroy David's business. All it would take is one phone call.

I could easily get that general manager's position Wade is applying for at Dimension Data. I could get that job over Wade without doubt ... piece of piss!

I could destroy them. I know people who could seriously hurt them, the fucking miserable arrogant bastards.

That fucking David should have his fucking lips cut off, with that fucking arrogant smirk.

I ought to break both their legs.

It just takes one phone call to destroy their prospects. Cunts!

I've had many conversations with David's staff. I know what they really think of him.

David and Wade are only using you. Once they've got what they want from you, they'll ditch you.

The reason we're in this fucking mess is because of your fucking kids."

583. Bob stood over me. I felt intimidated and frightened. He paced up and down on the deck, repeating himself and the vicious threats directed at my sons for approximately half an hour. I was unable to respond. I also feared that if I had, his verbal attack would have continued. I sat there until I eventually quietly said

I'm going to the bedroom".

584. I stayed in the bedroom. I covered my ears with the pillow. Bob stomped around the house still yelling, eventually settling in the lounge room where he drank and muttered to himself. When he eventually came into the bedroom we said words to the effect:

Me: "You should know you shouldn't say things like that to a mother".

Bob: "I forget you're a sheila and not a bloke".

585. Bob had said to me on other occasions in the past words to the effect of:

"If you were a bloke I'd knock your fucking head in".

586. Bob left Mitchelton the next day. As soon as he left, I threw up.

116 The defendant points to the series of emails that flowed in the wake of the events of 18 February 2008. It was submitted that they have corroborative value. There were many emails immediately after this time some of which were affectionate.

117 Exhibit P,95 is an email from Ms Mulcahy to Cooper:

Am going now to that dark place to deal with Monday night

- she had on the previous day emailed:-

Unnecessary for me to respond on Monday night - unnecessary to react now. Or did/do I just feel intimidated etc

But significantly and in my view corroborative of the affidavit evidence particularly paragraph 584 is the email from the plaintiff one week after 18 February (Exhibit P,112) where he refers to:-

You humble me and shame me to myself by thanking me for supporting you through a rough time caused by my inability to not broach that area of our lives that is very, very sensitive to both of us until the time and the circumstances were better. I forgot you're a girl and not a bloke with tits and a vajin. Bad choice by me. Very bad delivery. Will not under any circumstances allow myself to get to that level ever ever again etc.

118 Exhibit P, 114 included Ms Mulcahy's words:-

So appreciate your loving and gentle words, do not know where to go with the violent and vicious ones ....

119 At T717.38 the plaintiff simply denies any knowledge of what words they might have been.

120 It was submitted by the defendant that what the defendant wrote concerning the events of 18 February 2008 in emails is cogent corroboration of her account in a way analogous to complaint evidence - here there is appropriate contemporaneity and perhaps more tellingly still, they were written not in any shadow of litigation nor mood of accusation or reproach but in a seemingly conciliatory context.

121 The defendant referred to a further example of the plaintiff's dissembling which is said to be found in his attempted explanation for the email Exhibit P,95 from Ms Mulcahy:-

I am now going to that dark place to deal with Monday night ....

122 The plaintiff agrees this referred to the night of Monday, 18 February but was apparently compelled to add:-

Yes but it was more about the dark place, because she suffered from quite severe episodes of withdrawing into herself.

caused in his (the plaintiff's) alleged belief by "menopause".

123 I am prepared to accept the defendant's evidence but note that this discussion also concerned a dispute between the parties about rearranging securities and the Mulcahy Family Trust. As pointed out by the plaintiff there were no threats to the defendant. They were all addressed to her children. In these circumstances there is no assault on the plaintiff.

3. Alleged assault in May 2008 (swearing over the phone)

124 The evidence given by the plaintiff was as follows:

597. On or about 6 May 2008, Bob was at home at Harwood and I was in Brisbane. Bob was due to receive the results of medical tests. I had returned home to Mitchelton later than expected and did not phone him that day to find out about his test results. Bob phoned me later that evening and immediately started screaming,

"Cunt....cunt... cunt... you miserable selfish fucking cunt"

over and over again.

598. Bob repeated it so often that I started writing the words on a newspaper I had beside me, in an effort to finally convince myself that I did not need to put up with this type of abuse.

599. After the call, I threw up. That night, I stuck the newspaper to the bedroom wall as a reminder of the quality of Bob's and my relationship.

125 The piece of paper was tendered and became ex Q. The piece of paper was a newspaper cutting, which was dated 6 may 2008, on which the defendant appears to have scrawled her notes. In cross-examination the plaintiff said the following:

Q. On about 6 May 2009 you had some medical tests done as described at 597?

A. Yes. I would have to have a look at my medical records but I think that's about right, yes.

Q. If I could spare myself the verbatim repetition by asking you Mr Cooper whether you agree or disagree that you screamed over the phone to Mrs Mulcahy the words set out in 597?

A. No, I did not. I did have a conversation with her that evening, or an evening around about then. Oh sorry when I had my tests, yes. I think I had my tests before this date actually, from my medical records.

Q. You have seen the scribbled note of what you are said to have screamed at her over the phone?

A. Well I don't know that that is - that has no relevance to me. I did not scream that to her over the phone.

Q. You have seen the date on the piece of newspaper?

A. Yes. is that the 6th May?

Q. All I asked you is if you had seen the date?

A. Well it is relevant Mr Williams, because my tests were prior to that newspaper date.

Q. Do you deny that you have ever uttered words of that ilk to her?

A. I have never abused her like that, no I have not.

Q. Can you offer to the Court any plausible explanation why she would have written that down on the paper that we have seen in Court?

A. Yes I can.

Q. Do you say she has fabricated it?

A. I would say she is writing it about herself. When I had my medical results, my medical tests, when I got the results I spoke to her. I phoned and I asked her how my results went. That was prior to that date, I am sure. Well, I'm not sure, but I need to check on that.

Q. I think I understand Mr Cooper, you are telling his Honour "No, no, that is not something I would have said, she is writing about herself", is that what you are saying?

A. Yes. Sorry, no. You asked me for a scenario that could have happened. I am not saying that happened, what I am saying is that is the only explanation I can give.

126 Records from the plaintiff's doctor were tendered but they give no information as to when results were received. They do show his attendance at the doctor on 7, 22, and 28 April and 6 May 2008. His initial explanation makes no sense and his denial may just be a lack of ability to recall his violent outbursts. I am prepared to accept the defendant's evidence but there is a real question as whether there was an assault given that it was over the phone after the parties had separated and there were no words, which suggested a physical attack was contemplated.

127 I was referred to the case of R v Ireland [1997] QB 114 and the appeal to at [1998] AC 147 which concerned repeated silent telephone calls to a number of women. It was held that an assault might be committed by words or gestures alone depending on the circumstances and that where the making of a silent telephoner call caused fear of immediate and unlawful violence the caller would be guilty of an assault. The present case is quite different and there does not seem to be any suggestion of a fear of immediate and unlawful violence.

128 In my view the conduct, although abusive, does not amount to an assault.

4. Alleged assault from 1993 (abusive language)

129 The defendant's evidence was as follows:

117. By early to mid 1993 Bob often said to me,

"All you Mulcahys are selfish. You've got no idea how to fucking live or behave" and

"You're a private school overeducated cunt"

"You've all got a holier than thou attitude. The holy fucking Mulcahy trinity need a fucking smack in the fucking mouth".

118. . My few friends began to dwindle as Bob did not like any of them and they ceased to visit. Bob was rude to visitors. One was Ronz de Souza.

When Ronz made a comment that Bob did not like, Bob often said to him,

"That's bullshit you fucking curry-muncher"

When Ronz left the house, he usually said,

"See you later".

Bob usually responded,

"Don't hurry back".

Increasingly when any associate of mine came into the house was unwelcome. Bob would leave the room. Bob would be curt. Bob would ignore my visitors and not talk to them. When they had left, Bob would criticise the guest. One of the common criticisms was, Bob saying to me,

"I can't stand them, I don't like them around"

211. .............................. He would also say to me on hundreds of occasions "If you were a bloke I'd fucking knock your head in". He would also say to me on many occasions "Someone should give you a fucking smack in the mouth". On other occasions he would say to me "I should smack your fucking head in" or "I should give you a fucking smack in the mouth". The fear that Bob has instilled in me has changed me emotionally and physically. These days I consider myself fearful and very vulnerable and quite unlike the person I was before I met Bob. I am also deeply fearful of Bob and feel I have lost control of my life. This was not the case before he came into my life. I am afraid he will do me physical harm. I have been deeply disturbed by the claims he has made in the Supreme Court proceedings for property that is mine and which I worked hard for and owned before he came into my life. And in many respects he destroyed my life.

130 There is nothing to corroborate this claim. Given that some events, which include foul language, have been corroborated, I am inclined to accept the defendant's evidence of the use of the language described. However paragraph 211 was not admitted as evidence of an assault. In respect of paragraph 117 there is no detail of what were the factual circumstances in which the words were used. When cross-examined the defendant could not say whether she was intimidated. Accordingly I am not satisfied that there was an assault.

5. Alleged assault and battery in 1995 (threat to kill and battery)

131 The defendant's evidence was:

205. By early 1995, Wetcheck materials were littering up the back yard at Gaythorne so I said to Bob words to the effect:

"We should buy a shed so we can store Wetcheck's goods in there".

We purchased a second hand shed for $400.00. In preparation to erect the shed, David started levelling off a section of the backyard; however, it was quite a large job so David hired a bobcat to complete the job. After the yard was levelled, Bob still did not erect the shed as planned. The rubbish from Wetcheck kept piling up in the back yard.

206. On or about June 1995 I said to Bob words to the effect:

"Can we somehow complete the shed? The mess in the backyard is just piling up".

Bob took hold of my arm and dragged me down the back stairs from the kitchen to the backyard. I stumbled down the stairs, bumping the railings and losing my footing on the way. Bob pointed to the pile of timber, roofing and windows, which were all for the Wetcheck business, and Bob said to me:

Bob: "What the fuck to do you call that? [indicating towards the disassembled shed]

Me: The shed's not for me or Station Ave, it's purely for Wetcheck's storage.

Bob: I can't fuckin' stand the sound of your fuckin' voice or the fuckin' sight of you. Get out of my fuckin' sight. Disappear. If you don't, I'll fuckin' kill you. I'm fuckin' out of here. I'm going to pack my stuff and find somewhere else to live. Don't come back till I'm gone. I promise you I'll fuckin' kill you."

207. I went to the train station across the road and sat there for a couple of hours. I felt numb. I returned later that afternoon but Bob's ute was still there, so I knew he had not gone. I stayed hidden in the tool room downstairs. I could hear Bob on the phone upstairs, making enquiries for shared accommodation and then gathering his gear, loading the ute and leaving. .

208. Bob returned a few days later while I was at home. He had a list with him and he said to me:

Bob: "I'm just here to get the rest of my things."

Me: "Can I have my video player back?"

209. Bob left again. I do not know where he went. A few days later, Bob returned again and stayed. He resumed living at Gaythorne. I did not agree to him staying. Bob is charming but I was afraid of him and said nothing.

132 I am prepared to accept the defendant in respect of the incident although there is no independent corroboration. Given the fact that she left the house I also accept it was an assault and that there was a battery.

6. Alleged assault in 1996 (removal from the house)

133 The defendant's evidence was as follows:

237. On two occasions during the seven or eight months we lived in Maroochydore, Bob told me to leave. On the first occasion Bob yelled at me "Get out of my fucking place. I'll get a fucking flat bed truck and pitch your fucking gear over the fucking balcony". The reason for this outburst of rage was unclear to me.. I was shaking and in fear of Bob and what he might do to me.

I telephoned David and said "Would you please come and pick me up", which he did. I stayed with David at Gaythorne. I did not contact Bob. A week or two later Bob came to Gaythorne and drove me back to Maroochydore. I do not recall saying "Yes" to resuming our relationship; I simply did not say "No", nor did I have the courage to do so. I recall during this time Bob paid $1,000.00 as part payment of monies owing to the inheritance account.

134 Under cross examination she said:

Q. And if I could then take you to paragraphs 237 and 238, thank you. I am suggesting to you, ma'am, that the conversation that you have put there you have made up, haven't you?

A. No, I haven't. And the fact being that I didn't even know what he was referring to. It was a flat bed truck. Because it's the first time I have ever heard the term "flat bed truck".

Q. David did come and collect you on one occasion, is that right?

A. He did, yes.

135 I accept the evidence and given the defendant's lack of understanding of the threat and the fact that she vacated the house I find there was an assault.

7. Alleged assault in 1996 (second removal from the house)

136 The defendant's evidence was:

238. On the other occasion Bob and I were in bed. He yelled at me "Get out of my fucking bed". I have no recall of why he said this. I was afraid. I left the bed and I slept on the lounge. I was ashamed and on this occasion I did not ring David. The next morning Bob said to me "get in the car. I'm driving you to Enoggera." Bob drove me to Gaythorne where David was living at the time with his girlfriend Jill and I stayed with him at Gaythorne. I did not contact Bob. A week or so later Bob came to Gaythorne without arrangement.. He said to me "How are you going. We've got to sort things- out". I said to him "I'd like to collect my gear." He said "I'll drive you to get it". When we got back Bob said to me "We should give it a go before you make the final decision and take your gear and leave. We should consider staying together and give it a go I didn't agree to give it a go, but I stayed.

137 Although I accept the evidence of what happened I am not satisfied that there was an assault.

8. Alleged assault and battery in December 2000 (threat to shoot and 'beer incident')

138 The defendants evidence was:

307. I refer to the Plaintiff's affidavit sworn 22 September 2009 at paragraph 37. Around 30 December 2000, Bob asked me, out of the blue, words to the effect:

"What do you reckon about us helping Trevor to buy a property?"

308. This completely surprised me. I said to Bob words to the effect:

"Trevor's never indicated a desire to buy a property. He's always moving from job to job. I don't think he has the interest, stability, commitment or finances to be able to make the repayments. However I don't have a problem helping Rebecca and Jason (her boyfriend) to use Gaythorne to help them with a loan".

309. Bob became very angry at my response. I don't ever recall Bob discussing these matters in good, happy and stable times.

139 She then gave evidence about the afternoon in these terms:

312. By the afternoon after Bob had asked me about helping Trevor with a home loan, it was obvious to me that Bob was very angry: and he was pacing in and out of the house to the garage. We had already had a tense week together and had not been talking much for several days.

313. In the afternoon, I was sitting on the lounge reading and feeling tense. Bob said to me out of the blue:

"If you were a bloke I'd smack your head in".

I did not say anything in response, as in my experience that always escalated Bob's anger. After a while I turned on the television.

314. Bob came in from the garage and said:

"Stop fucking ignoring me"

and turned off the television. I sat there for some time. I was too anxious to read because I feared that would further inflame Bob. I feared that anything I did would make Bob more upset, so I just sat there.

315. Bob went in and out of the house several times. His body language indicated he was becoming more and more agitated and upset. He went to the refrigerator and took out a beer. On one of these trips from the fridge to the garage, as he passed by me sitting on the lounge, he poured the entire can of beer over my head, down my body and onto the lounge.

316. I just sat there. I was in what I thought of as 'block-out' mode. I was too anxious to have a shower, for fear of further inflaming Bob's temper. I just sat there, in a pool of spilled beer. I did not dare to have a shower, or go to bed, or to move because I knew he would start screaming. I sat there, adrenaline pumping and heart thudding, for what seemed like hours. I did not get off the lounge to go to the toilet, or read a book, or make dinner, or eat anything at all. I just sat there, waiting for him to go to bed.

317. Bob went to bed, perhaps an hour later. I knew he was finally asleep because I heard him snoring, at which point I got up, showered, and finally fell asleep at the other end of the large L-shaped lounge (not where the beer was spilled). I cleaned the couch the next day.

318. In the morning, Bob drove away and did not return until late that evening. I felt humiliated, weak and anxious after this incident. Neither of us mentioned the incident again until 2008 during our attempts to reconcile.

140 By leave she gave the following evidence about what also happened during this event.

Q. This beer incident which you have described commencing at paragraph 312 of your major affidavit -- is that correct?

A. I am not sure of the paragraph, but yes.

Q. Tell us what in fact was said in the course of this walking in and out as you describe it?

A. Most of the time he was just screaming, every time he walked in and out of the house. And on one particular occasion he said "This is driving me fucking nuts, I really should get rid of the rifles. I am either going to shoot you or shoot myself or both of us."

Q. Do you recall in the course of the preparation of your major affidavit anything happened when you were dealing and committing that part of your evidence into the affidavit?

A. Yes, I found it very difficult and I said in my affidavit -- it brought me to tears.

Q. When the words were actually uttered back on or about 31 December 2000 what was the effect of the utterance about?

A. I was terrified.

141 There is no doubt that the plaintiff had two rifles but one of them was a .303 held as security for a debt and in respect of which he did not have the bolt. In respect of the other to the knowledge of the defendant he had used it in the past and had ammunition for it. She did complain about this incident to Dr Kraushaar in September 2009 but surprisingly not to Dr Fisher or Dr Klug. On this the plaintiff submitted:

This is very significant. This incident is possibly the most dramatic of the incidents alleged throughout the relationship of the parties. The Plaintiff not only does not make any contemporaneous complaint but when she sees Dr Fisher in January 2010 she does not tell him about it and then when she sees medico legal practitioners for the purpose of this litigation relating to this very event, she does not tell them. It is submitted this is because it did not happen.

Further the Defendant says she did not tell anybody about this incident. In the affidavit of David Mulcahy at par 103, he asserts that his mother told him of the Plaintiff pouring wine over her head. There is no suggestion that this is this incident, and as noted the Defendant does not assert she told David about it. So what is to be made of David Mulcahy's evidence? At the very least that it is unreliable, and given in respect of irrelevant matters which did not occur and which are not complained about, in an attempt to assist his mother's case.

142 There was further cross-examination about the shape of the lounge but this was not helpful in resolving the veracity of what was said. The defendants submissions on this aspect were as follows:

Cooper in his affidavit of 4 November 2010, paragraphs 312 - 318 denied the events alleged by Ms Mulcahy and specifically said:-

At the relevant time the lounge suite is not L-shaped but is in fact a rather small straight lounge.

He said that he had photographs of that lounge suite which he cannot presently locate.

Cooper was shown Exhibit O (produced by him) containing two photographs of a lounge and at T657, line 11 answering a question about the make of the sofa said:-

I think the defendant in her testimony said it was a Moran and I think I agree with her. I think it was a Moran yes.

Cooper produced receipts for a different make of sofa, namely a Natuzzi T657, line 34, purchased in 2005 and at T657, line 45 was asked:-

Question: You heard the evidence of Ms Mulcahy as to how it could be configured and reconfigured didn't you?

Answer: Yes I did.

Question: And you still want to persist with your evidence that prior to '95 (sic - 2005) there couldn't have been a situation of you pouring beer over her while she was on an L-shape lounge?

Answer: No.

Question: Is that what you want to say?

Answer: No. What I say is in the year 2000 which is when the allegation is made, there was no L-shaped lounge in the home which is quite a different proposition that you're putting to me Mr Williams.

Submitted what has happened here is simply this; Cooper has attempted to discredit Ms Mulcahy's account of this assault and battery by producing a photograph of the (agreed) Moran suite set up in a non L-shape. Further he says that a Natuzzi sofa purchased in 2005 (years after the event) was an L-shape (T658.12). Having conceded, in the face of Ms Mulcahy's evidence about the configuration in which the Moran lounge existed at the time of the events, he no longer wanted to persist in saying there couldn't have been a situation where he poured beer over her while she was on an L-shaped lounge,

143 This submission seems accurate. The defendant was cross-examined about the beer incident which was in these terms:

Q. And do you tell his Honour it was the whole can of beer that was poured over you?

A. He took a beer out of the fridge. I don't know one hundred per cent whether it was the entire - the beer that he had in his hand, he poured it over me. Whether it went right down to the bottom, how much was there, I can't tell

you. A lot.

Q. Did your head and hair contain beer?

A. Yes.

Q. Did it pour over your back?

A. It went down my back, yes.

Q. And did it go down inside your clothing or outside the clothing?

A. Oh, I don't even recall. I don't even recall.

Q. Did you feel the beer going down your back towards your buttocks?

A. I - well it ended up all over the lounge anyway.

Q. Sorry, what do you mean by that?

A. He held it over my head. He was behind me. He held it over my head and just poured and poured and poured. So, I wasn't even thinking about--

Q. Did the beer travel down your back and onto the lounge, is that what you are telling his Honour?

A. Yes.

Q. And do you remember what clothing you were wearing on the night?

A. I have no idea whatsoever.

Q. And you say that you sat on the lounge, you didn't go to the toilet or read a book or make dinner or do anything at all?

A. I attempted to turn on the T.V., and he walked back in at that stage and started screaming at me: "Stop fucking ignoring me", and he turned the T.V. off. So.

Q. You say this occurred on a large L-shaped lounge?

A. Yes.

Q. And that you were required to clean the couch the next day, is that right?

A. It is not that I was required, but I did do it.

144 If one were to assume that the defendant's answer about turning on the television indicates that this happened after the plaintiff poured the beer on her, that answer would be contrary to the affidavit evidence. In her affidavit, the defendant states at paragraphs 314-316 that she turned on the television at a time before the beer was poured, and that after this she did not get off the lounge, she states, "I just sat there...I did not dare to have a shower, or go to bed, or to move because I knew he would start screaming. I sat there, adrenaline pumping and heart thudding, for what seemed like hours. I did not get off the lounge to go to the toilet, or read a book, or make dinner, or eat anything at all. I just sat there, waiting for him to go to bed".

145 The witness was not challenged about this inconsistency. Given the lack of a challenge and the possible ambiguity of what the witness was referring to, I will not accept that this was a change to her affidavit story.

146 The rifles existed, the plaintiff could be an angry man, the defendant had been frightened of him over the years and I am prepared to accept the defendant's version of what occurred. There has been an assault and a separate battery.

9. Alleged assault after Christmas 2000 (verbal attack)

147 The defendants evidence was:

304. A few days after Christmas 2000, and without my request or knowledge, Bob stopped at Gaythorne after returning his children to the Sunshine Coast. When Bob returned to 290 Southbank Road he said words to the effect:

"I've had to move furniture downstairs at Gaythorne and pack up the tool room, and I had to get Shane to help me - it's not my responsibility to do this shit. I've also left the key with the tenant. The fucking Mulcahys all fucking need a fucking smack in the fucking mouth".

305. Bob had used this phrase frequently in the past. Around this time I began to avoid speaking to or about my children in Bob's presence. I mostly phoned them when Bob was not around. I continued to try not to upset Bob.

306. I was at a loss as to how to deal with situation.

148 Although I accept the defendants evidence but given the lack of evidence about the effect on the defendant I am not satisfied it constitutes an assault. I note the cross examination of the defendant in these terms:

At T260.40 is this question and answer:

Q: But in respect of what is asserted there in paragraph 304 there was no threat made by Mr Cooper at that time was there?

A: At that particular juncture, no

10. Alleged assault in mid 2007 (threat to shoot)

149 The evidence given was as follows at T319-320:

Q I will put my question to you again: are you able to identify by approximate date any other instance similar which involved the mention of rifles?

A. Yes.

Q. When was that?

A. That was in it -- -- I can't give you an exact date but it was March or April 2007.

Q. Where did it occur?

A. At Harwood, at our home in Harwood.

Q. In what context?

A. Bob and I had -- Bob was working at the phone shops and he was complaining about the staff and about the area. Things were pretty bad. And he continually said things like "I am a big fish in a little pond" and I turned around to him and said "We are only shop keepers after all", which I regretted, straight away. And he said -- he just flew off. I can't recall other things he said but he was yelling at me, walking in and out, yelling. And he said once again "This is frustrating that shit out of me. I really should get rid of the rifles. I will either shoot myself, because I am going nuts, or shoot you."

Q. What effect did that have on you and your recollection?

A. It is a terrifying thing to hear. There were other instances that he said similar things.

150 This alleged incident was first referred to at the trial when further evidence was given following an almost completed cross-examination of the defendant. It was never referred to in consultation with doctors. Plainly it was only recalled as a result of further questioning about paragraph 310 of her affidavit. That said, it has the ring of truth about it.

151 I accept her evidence and it must have been very surprising given that there had been no instances of serious abuse for some seven years. I can accept that it may have terrified her. I am satisfied there was an assault.

Effect of assaults

152 I turn to the question of what effect the assaults may have in the adjustment process. Plainly events after separation are not relevant and on this aspect of the case questions of the Limitation Act 1969 do not arise. The defendant relied on inter alia two cases under the Family Law Act 1975, Doherty v Doherty (1996) FLC 92-652 and Marando v Marando (1997) FLC 92-754. In the first of these cases the Full Court said at page 82,683:-

"On page 26 the trial Judge made reference to the appellant's drinking habits and to domestic violence and aggression, which he exhibited towards the respondent and the children, particularly to S. Although the trial Judge did no more than record these events, it is clear from his findings that the wife's contribution as homemaker and parent may have been increased as a result thereof.

Although the domestic violence complained of related to a relatively small period of time at the end of the marriage, nevertheless, his Honour would, in my opinion, have been entitled to have found that because of the appellant's conduct, the respondent's contribution diminished as a consequence, leading to the overall weighting based upon contribution in favour of the wife being increased, albeit only slightly, having regard to the facts of this case."

153 Of interest is the reference to such conduct either increasing one party's contribution or diminishing the other party's contribution.

154 In Marando v Marando at 84,168-9 Gee J had the following to say about the issue of domestic violence.

In my opinion however, the wife over the very long period of cohabitation made a much greater contribution than the husband to the welfare of the family, particularly as homemaker and parent. I am satisfied on the evidence that in her homemaker and parenting role the wife in that role and by way of general contribution to the family's welfare carried out responsibilities well beyond the norm. She had the responsibility of the home and the children almost entirely without the husband's assistance for a very long period of time. Amongst other things, she thereby enabled him to work and earn income over and above his full time work as well as his full time work. In this family she was the uniting force and the one who provided the support, love and affection necessary to maintain this particular family unit over a long time.

This was made especially hard by the husband's abuse and denigration of her and the children in the ways described by them in their evidence, which I largely accept on this issue, as well as by his attitude to `women's work' and by his drinking which necessitated the wife working especially hard and harder than would be usual in normal situations as homemaker, parent and as the prime navigator of the welfare of this family through the many seas of problems and difficulties which confronted them over the years.

These are special factors of the kind to which the Full Court drew attention in Ferraro v Ferraro 16 Fam LR 1, especially at pages 38, 39 and 47, that being a decision affirmed in McLay v McLay 20 Fam LR 239 at pages 248 to 249, and is no doubt what Baker J had in mind when speaking for the Full Court in Doherty v Doherty 20 Fam LR 137 at page 141. His Honour's remarks, although, in my respectful opinion, obiter and given in an extempore judgment, are entitled to great respect. They do not represent new law. It has been suggested in some quarters since that judgment was delivered that they have, but I disagree with that suggestion.

The remarks of Baker J in Doherty's case were simply an expression, in the context of domestic violence, of the passages in Ferraro's case cited above. Neither Ferraro's case nor Doherty's case purported to overrule Soblusky (1976) 2 Fam LR 1, nor Ferguson (1978) 4 Fam LR 312, where investigation of fault or misconduct per se was deprecated. Any intention to overrule Ferguson was deprecated in Ferraro's case at page 39, and I am, with respect, unable to accept that either Fogarty J or Baker J, who were members of the Full Court in both Ferraro and Doherty, would have intended such decisions to be overruled without expressly saying so.

155 In Green v Robinson (1995) 36 NSWLR 96 Cole J at 119 after discussing the dictionary definitions of "homemaker" adopted the definition as "one who creates and maintains a comfortable and welcoming ambience for the members of their household". He went on to say at page 119:-

"However, even such a second meaning is inadequate if it is intended to convey that only one person in a household may be responsible for the creation or maintenance of such a welcoming ambience for it is clear, in my view, that each party to a relationship, be it of marriage or of a de facto relationship, may contribute to the homemaking in which that relationship subsists. Parties to the relationship may, depending upon their various capacities, skills, inclinations, interests, available time and other factors, contribute significantly to the making of a home. The concept of " homemaker" or "making of a home" has a different and wider connotation than housekeeping or maintaining a house. It involves the creation of an emotional ambience of stability.

To take but three examples. A person, not infrequently the male in the relationship, may have skills related to home improvements which are exercised for the mutual advantage of the parties in the relationship. That is an aspect of homemaking for it permits the more pleasant enjoyment of the domestic relationship. To similar effect, a person, most frequently the female in the relationship, may practice cooking and decorating skills which also are aspects of homemaking for they similarly lead to a comfortable and welcoming ambience in the home in which the parties in the relationship live. And each, both the male and female partners, may bring to the relationship aspects of stability, and attitudes of tolerance and understanding critical to the creation of a home. It is important to recognise that contributions as a homemaker may be qualitative as well as quantitative, and that a lesser quantitative but higher qualitative contribution may be of equal or even greater importance and value to the relationship and the partners and children than a seemingly greater quantitative contribution.

The width of aspects of contribution, and in some instances the amorphous qualities which a party may bring as his or her contribution as a homemaker to a relationship, highlights the difficulty of trying to quantify in precise money terms the contribution of each party. It lends emphasis to the need for the Court in most instances to exercise a significant element of judicial assessment in determining whether it is just and equitable that a property adjustment be made. '

156 Clearly his Honour includes the qualitative aspects as well as the quantitative. Accordingly in the adjustment process it is possible to take account of these actions of the plaintiff in assessing the defendant's homemaker contributions. In this case the defendant seeks that the effect on contributions be considered as well as seeking judgment for assault.

157 The homemaker contributions put forward by the plaintiff are:

• the execution of minor maintenance and repairs
• managing finances
• assistance with household chores
• as the defendant did not drive the plaintiff drove her whenever she needed to go anywhere

158 The defendant gave more detail in relation to household matters and in particular she said:

• Her sons did household garden chores at Gaythorne, Cooper did not attend to any domestic matters (affidavit 29 June 2011 paragraph 113).

• In Melbourne, she attended to food preparation, cleaning and homemaking and provided household items. (affidavit 29 June 2011 paragraph 139)

• Upon returning to Gaythorne Wetcheck Roof Restorations commenced operating out of Gaythorne. She did the filing, organising, recording of work (affidavit 29 June 2011 paragraphs 179 and 191).

• At the same time she took care of all home duties including cleaning and cooking and gardening, yard maintenance, she designed a company logo and business cards for Wetcheck (affidavit 29 June 2011 paragraphs 182, 183).

159 Having regard to the fact the defendant did not drive, I would regard the contributions as equal.

160 In respect of the assaults it seems to me that to the extent that the performance of the defendant's homemaker contributions was affected by the assaults, that fact ought to be taken into account in her favour in assessing them. The plaintiff drew attention to the question of onus in respect of these matters and referred to two cases Kennon (1997) 22 FamLR 1 and Spagnardi [2003] FamCA 905.

161 In Kennon it was said at 24 in relation to allegations of violence:

"It is essential to bear in mind the relatively narrow band of cases to which these considerations apply. To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernable impact upon the contributions of the other party. It is not directed to conduct which does not have that effect and of necessity it does not encompass (as in Ferguson) conduct related to the breakdown of the marriage (basically because it would not have had a sufficient duration through this impact to be relevant to contributions).

162 In Spagnardi it was said:

"An insufficiency of evidence in the present case leaves the court with a limited ability to deal with allegations in the context of Section 79 proceedings. As Kennon has established it is necessary to provide evidence to establish:

The incidence of domestic violence;

The effect of domestic violence; and

Evidence to enable the court to quantify the effects of that violence upon the party's capacity to "contribute" as defined by Section 79(4)."

163 In the present case the plaintiff has given detailed evidence of the affect that the assaults had on her in each case. However, there is little direct evidence of how that effect on her made her homemaker contributions more difficult. The court is left with a limited ability to make any necessary inferences absent that evidence. Assuming that the fear generated by the incidents had some immediate affect on contributions at the time of affectation, a period of some weeks is of minor significance in the overall time frame of this 15-year relationship. This is particularly so given that there was a substantial break for many years between the incidents. I note that the defendant refers to the continuous effect of the assaults when dealing with damages and I will deal with this later. There is nothing in the evidence to suggest any effect the assaults had on her other non-financial contributions.

164 The apprehension, contact and the injuries arising from the assault and battery is another matter. These are serious matters and are no less reprehensible because they occurred within a domestic arrangement. They should be separately treated to show the Court's disapproval of such matters. This course is adopted from time to time in the Family Court. See In the Marriage of Kennon 22 Fam LR 289 at 296 where Coleman J, who was there concerned with exemplary damages said:-

"This is a case where the message must be spelled out to persons such as the respondent that they cannot assault and beat wives or de facto wives and escape civil liability simply on the basis that it was 'a domestic'. I know of no principle which renders an assault and battery in a domestic context less reprehensible than that in any other context."

165 I will return to this aspect later.

166 It is also appropriate to deal with the other non-financial contributions by the parties.

167 The defendant in submissions suggested the following contributions:

• When the parties purchased the property at Coldstream St, Yamba, Ms Mulcahy designed the layout of retaining walls and the kitchen, masked windows, spack filled, did all the housework, washing, cooking, cleaning, turf laying, mowing and designed and established the gardens (affidavit 29 June 2011 paragraph 262).

• Wayne Dalton and Ms Mulcahy undertook most of the renovations on Oaks Avenue, Casino. Ms Mulcahy cleaned the yard, marked out garden beds, planted mature trees, palms and shrubs (many of which she had propagated at 290 Southbank Road), spread pine bark and put in flowering plants, hemmed and hung the curtains, kept the yard mown (affidavit 29 June 2011 paragraph 361).

• In late 2003 when the Removal House purchased for $4,000, Ms Mulcahy positioned the house in the most suitable location, designed the kitchen and bathroom, painted the deck and wide stairs, painted the slats/the bottom portion of the house (affidavit 29 June 2011 paragraphs 371, 372).

• As a result of extra acres added to the 290 Southbank Road property Ms Mulcahy created further gardens, planted fruit trees, vegies and shrubs, designed all interior renovations (affidavit 29 June 2011 paragraphs 379 and 380).

• Ms Mulcahy spent more time on the ride-on mower mowing lawns than Cooper did on the tractor (affidavit 29 June 2011 paragraph 389).

• Ms Mulcahy's contributions to the Grafton units initially were preparing interiors for tiling, painting and plumbing including cleaning cupboards, bathroom walls, removing mildew and other stains, making concrete pathways, weeding, pruning and fertilising, hemming and installing 70 sets of curtains, furnishing each unit with linen, crockery, cooking utensils and cutlery (affidavit 29 June 2011 paragraph 396).

• Ms Mulcahy set the rent at Grafton units at $128 a week for 8 of the units and $132 a week for 4 of the units resulting in fully rented $1,562 per week (affidavit 29 June 2011 paragraph 400).

• Ms Mulcahy, in respect of the Ace High Hats business:-

(i) Wrote down the hats that they were short of,

(ii) The ones they had to order,

(iii) Kept close attention to the stock that was available,

(iv) Wrote the list to re-order the stock,

(v) Decided what stock would be ordered.

(vi) Attended warehouse to select stock.

(T178, lines 20 - 35).

168 These submissions are not particularly helpful because all they have done is extracted from the relevant paragraphs of her affidavit the work the defendant said she did on her own. They do not include those paragraphs where she said the work was done by the plaintiff or by the plaintiff and her. Accordingly it is somewhat misleading.

169 For example, in respect of the renovations to Yamba the defendant conceded that the plaintiff used tradesmen which were paid for some of the work and that the tradesmen involved did the heavier work. She also conceded that the plaintiff painted the interior of the property using a spray gun.

170 In his responsive affidavit the plaintiff suggested that the design and the layout of retaining walls, garden, kitchen, entertainment unit and wardrobes were joint decisions. He also said the kitchen required no design as it was one cabinet about 2 metres long in a very small house. He also denied the masking of windows and spack filling and pointed out that there were no cornices.

171 There seemed to be a project to renovate a particular property in a short period of time and it seems to me that each party helped on that project and that the contributions were probably equal.

172 With regard to Casino and its development the submission omits the defendant's concession that the plaintiff replaced the bathroom taps and they both painted the fence.

173 The plaintiff referred to financial records that only showed one payment of $555 to Wayne Dalton for his work, which according to the plaintiff would be two days' work. He suggests that he did the majority of the work.

174 Having regard to the financial records I think that the plaintiff is correct and he did the majority of the work in respect of this property apart from work that was done by various tradesmen who were paid for their work.

175 The removal house was purchased for $4,000. According to the plaintiff there was only one place where the house could be located on the block. The defendant conceded that the plaintiff painted the majority of the internal walls after she scrubbed and undercoated them with the assistance of a friend. This seems somewhat doubtful as apparently, according to the plaintiff, the walls were gyprock. The suggestion by the defendant that she painted the large deck may be mistaken given, according to the plaintiff, it remained as bare unpainted timber and on its sale the new owners stained the timber. That could not have happened if it was painted.

176 In my view the plaintiff did the majority of the work on the renovation of the house once it was placed on the property.

177 The subdivision in respect of which the defendant says she planted some fruit trees and designed interior renovations was a large project. The work involved in creating the subdivision was extensive and was set out in length by the plaintiff in para 34 of his affidavit dated 22 September 2009. His file concerning the subdivision was tendered and plainly supports his claim that he was the one who did all the work and arranged the subdivision which was of great benefit to the parties.

178 With regard to the ride on lawn mower the submissions do not negate the concession made by the defendant that the plaintiff worked very hard on the farm at times although she said that it was not an all year round effort.

179 In his affidavit of 22 September 2009 at para 34 (9) (2) (xiii) the work the plaintiff describes there seems a realistic description as it is substantially heavier and more difficult work than riding a mower. I think there were substantial contributions by the plaintiff in respect of the farm in contrast to the contributions by the defendant. The plaintiff denied these contributions but he does not suggest that he did them. Accordingly, I am satisfied that the defendant did them.

180 So far as renting the Grafton units I accept that the defendant set the rent which she achieved which was substantially better than the real estate agent's initial estimate. No doubt this is why the units became valuable.

181 In respect of the business Ace High Hats it seems clear that both parties contributed equally to this business until they decided to cease business.

182 I have already earlier dealt with the driving which the plaintiff had to do because the defendant could not drive. Another matter they both attended to equally was the care and welfare of the defendant's brother George, who was disabled and suffered from cerebral palsy. The plaintiff gave evidence that he contributed to the same degree as the defendant to the care and welfare of George.

183 Given the particular work done on the farm in my view the non-financial contributions I have been discussing, favour the plaintiff over the defendant.

Claim for adjustment under s 20

184 The plaintiff originally claimed a 100% of the parties' property but at the hearing submitted that the assessment of the parties' contributions should result in a division of the parties' property, excluding the lotto proceeds, as to 60% to the plaintiff and 40% to the defendant. However the orders sought by the plaintiff are for a different result, namely a division of the assets of 40% to the plaintiff and 60% to the defendant, and according to the submissions this reflects the instructions of the plaintiff, not the analysis of this case by applying the authorities.

185 The defendant for her part seeks an adjustment, which after what she says are appropriate add backs, give her 85% of the parties assets.

Global or asset by asset approach and the erosion principle

186 In Norbis v Norbis (1985-1986) 161 CLR 513 at 523 the High Court said the following:

"Although it is natural to assess financial contributions under s79 (4)(a) by reference to individual assets, it is also natural to assess the contribution of a spouse as homemaker and parent either by reference to the whole of the parties' property or to some part of that property. For ease of comparison and calculation it will be convenient in assessing the overall contributions of the parties at some stage to place the two types of contribution on the same basis, i.e. on a global or, alternatively, on an "asset-by-asset" basis. Which of the two approaches is the more convenient will depend on the circumstances of the particular case. However, there is much to be said for the view that in most cases the global approach is the more convenient. It follows that the Full Court is quite entitled to prescribe that approach as a guideline in order to promote uniformity of approach within the Court. In saying this we are not to be understood as denying the legitimacy of the trial judge's ascertainment in the first instance of the financial contributions of the parties by reference to particular assets. It is difficult to conceive how the trial judge in many cases could otherwise take account of such contributions as he is required to by s.79 (4)(a) of the Act . In this respect we agree with the comment of Nygh J. in G and G that, although mathematical precision is certainly not required, there is ordinarily a need to know the circumstances in which assets were acquired and the general extent of each party's contribution to them."

187 The same considerations which apply to Family Law referred to by the High Court in Norbis v Norbis apply to decisions under the Property (relationships) Act 1984. There are numerous cases dealing with this Act but it is useful to note the following two comments by the Court of Appeal.

188 In Bilous v Mudaliar [2006] NSWCA 38 ; 65 NSWLR 615, Ipp JA outlined the general approach that should be taken in the evaluation of the parties' contributions in the following terms:

[41] In Davey v Lee (1990) 13 Fam LR 668, McLelland J said at 689:

"[T]he Court is not required under s 20 to undertake a reductionist process analogous to the taking of partnership accounts (notoriously one of the most time-consuming and expensive of litigious exercises) by examining every alleged 'contribution' of the kinds described in the section with a view to putting a monetary value on it in order to reach an accounting balance one way or the other, which is to be then eliminated by the requisite financial adjustment. Rather the Court is required to make a holistic value judgment in the exercise of a discretionary power of a very general kind."

I would endorse this approach as well as his Honour's further observation that, while the parties may value non-material contributions to the welfare of the family more highly than material contributions, these are not matters that lend themselves to detailed examination and analysis by a Court.

[42] Generally, the Court has a broad discretion in determining the approach to adopt in considering what order to make under s 20(1). As Brereton J (with whom Basten JA and Hunt AJA agreed) said in Kardos v Sarbutt at [51] (relying on Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513):

"Although in the majority of cases, the global approach is likely to be more convenient than an asset-by-asset approach, the application of the asset-by-asset approach does not of itself amount to an error of law."

Brereton J at [54] observed that:

"As [ Lenehan v Lenehan [1987] FamCA 8; (1987) 11 Fam LR 615] shows, the principal indicator for an 'asset-by-asset' analysis is discrepant identifiable contributions of the parties to different assets: in that case, the proportionate contribution of the parties to the acquisition, conservation and improvement of the matrimonial home on the one hand, and to the business assets on the other, were quite different. Such an approach will often be contra-indicated where, as here, there has been a pooling of income."

[43] If a global approach is adopted, regard must still be had to the origin and nature of the different assets. If an asset-by-asset approach is adopted, care must be taken to avoid the risk of undervaluing domestic and non-financial contributions and regard must be had to the overall result: Kardos v Sarbutt at [51] and [54]. Some situations do not lend themselves either to a pure global approach or to a pure asset-by-asset approach. In some cases the judge may decide to have regard to the particular contributions made to individual assets, weigh up the overall respective contributions to the parties and make differing apportionments in relation to the interests of the parties in different assets.

189 In Separovich v Ferrao [2011] NSWCA 180, Beazley JA (with whom McColl and MacFarlan JJA agreed) stated:

[36] There are, as might be expected, a plethora of authorities as to how the Court should approach an adjustment of property under s 20. It is sufficient for the purposes of this case to refer to the following. In Manns v Kennedy [2007] NSWCA 217 ; DFC 95-406 Campbell JA (Santow JA and Bryson AJA agreeing) observed, at [62], that under s 20, the Court was required to make a holistic value judgment in the exercise of a discretionary power of a very general kind: see Davey v Lee (1990) 13 Fam LR 688 at 689; Ross v Elderfield [2006] NSWCA 129 ; DFC 95-338 at [35]; Kardos v Sarbutt [2006] NSWCA 111 ; DFC 95-332 at [36].

[37] However, that " holistic value judgment" is the final step in the process of arriving at an order, being the just and equitable adjustment of property, having regard to the contributions identified in s 20. Before the court can make that final determination, it is necessary to identify and value the property in respect of which it is open to the court to make an adjustment and to identify and value the contributions that are being taken into account: see Howlett v Neilson [2005] NSWCA 149 ; DFC 95-321 at [25]; Saric v Steward [2006] NSWCA 260; (2007) DFC 95 at [61]; Chanter v Catts [2005] NSWCA 411; 64 NSWLR 441 at [22].

[38] The authorities recognise that notwithstanding that the court exercises a wide discretion under s 20, a mathematical calculation of the contribution of the parties is of assistance in finding and testing conclusions as to what is just and equitable and in promoting transparency and consistency in decision-making: see Howlett v Neilson per Hodgson JA at [39].

[39] The discretionary considerations that may influence and/or determine the ultimate order made depend upon the particular circumstances of the case. As Ipp JA observed in Bilous v Mudaliar [2006] NSWCA 38 ; 65 NSWLR 615 at [63]:

"Determinations as to what orders should be made under s 20 are to be made solely on the grounds of the justice and equity of the case. The justice and equity of the case may derive from the fact that the party who owns the family home or other property was able to retain that property, while the market value increased, because 'of joint efforts of wage earning, homemaking and parenting, and mutual support'. In some instances the non-financial contributions of one party may result in property of the kind in question not having to be sold. In other instances, the non-financial contributions of one partner may allow the other to advance his or her career and earn a high income that enables the property in question to be maintained and retained. Thus, an increment in capital value may well result, indirectly, from 'joint efforts of wage earning, homemaking and parenting, and mutual support'."

190 Mathematical calculations, whilst not determinative, cannot be ignored. In Manns v Kennedy [2007] NSWCA 217, Campbell JA (with whom Santow JA and Bryson AJA agreed) stated:

[64] However, the "holistic value judgment" is the final step in the process of arriving at an order, namely deciding what adjustment of property seems just and equitable having regard to the contributions identified in paragraphs (a) and (b). Carrying out the task that section 20 sets requires, before that final step is carried out, an identification and (so far as possible) valuation of the contributions that are being taken into account and an identification and (so far as possible) valuation of the property concerning which it is open to the court to make an adjustment: Howlett v Neilson [2005] NSWCA 149 at [25]; (2005) 33 Fam LR 420 at 407; Saric v Steward [2006] NSWCA 260 at [61]; (2007) DFC 95,401 at 78,713; Chanter v Catts [2005] NSWCA 411 at [22]; (2005) 64 NSWLR 360 at 366.

[65] Further, even in carrying out that final step, "there is no warrant for ignoring the rigour that mathematics can provide": Ross v Elderfield (at [49] per Handley JA (with whom McColl JA and Hislop J agreed)). As Hodgson JA said in Howlett v Neilson (at [39]; 411):

"... while I do not think that these matters can be determined on such mathematical calculations, I think mathematical calculations are of some use in guiding and testing conclusions about what is just and equitable, and also in promoting transparency and consistency in decision-making."

191 In this case I will adopt a global approach. This is particularly appropriate given that there is no property which stands apart from their joint endeavours except for Gaythorne. This assett contributed by the defendant was the start of their investment in property which could not have occurred without it. It was owned by the defendant at the commencement of the relationship and was still retained 15 years later when the relatiionship finished.

192 As it is the only asset held for the whole relationship I will note the place of the erosion principle in these matters. That principle was discussed in Howlett v Neilson [2005] NSWCA 149 by Hogson JA as follows:

[30] In addition to the contributions of the parties during a relationship, regard needs also to be had to initial contributions. In cases decided under the Family Law Act, there has developed what is sometimes referred to as "the erosion principle". That principle was considered and explained in Pierce. That case concerned a marriage of eight years, preceded by two years' cohabitation. The assets of the parties were found to be $319,190.00. At the time of marriage, the husband had assets to the value of $226,000.00, while the wife had assets with an estimated value of $11,500.00. The trial judge considered the parties' contributions during cohabitation to be equal. He gave some additional weight to the greater initial contribution of the husband, but said that the relevance of this was diminished due to the length of cohabitation, a little over ten years, and the substantial other contributions. He took into account the husband's contribution in caring for the children since separation, and assessed the contributions of the parties to be 55:45 in favour of the husband. The Full Court allowed an appeal, holding that the trial judge erred in his assessment of the contributions of the parties in that he failed to attach sufficient weight to the greater initial contribution of the husband and his post-separation contribution in caring for the children. The Full Court held that, having regard to the facts as found by the trial judge, the result embodied in his reasons was unreasonable; and that in re-exercising the discretion, the contribution to the parties should be assessed at 70% to the husband and 30% to the wife, with a further 5% adjustment in favour of the husband for factors under s 75(2) of the Family Law Act.

...

[34] I have found no clear statement concerning the "erosion principle" in cases under the Property (Relationships) Act. In my opinion, it is by no means clear that it would apply to the same extent as under the Family Law Act, where matters other than contributions can be taken into account, and where the relationship itself involves a public commitment to mutual support for life (as noted in Evans at 78-79).

[35] However, it is plainly not the case that the contributions of the parties should be considered as making it just and equitable that there be an order only concerning increases in the value of assets over and above initial contributions.

193 In Kardos v Sarbutt [2006] NSWCA 11, Brereton J referred to some of Hodgson JA's remarks quoted above and commented:

"...There is no reason why this approach would apply to any less extent under the Property (Relationships) Act than under the Family Law Act; it does not involve taking into account matters other than contributions, but is part of the methodology for weighing and balancing the different contributions.

[67] Significant factors affecting the application of the "erosion principle" are the length of the relationship and, in particular, the extent to which there have been other or off-setting contributions which also have to be satisfied from the available pool. It is to accommodate those contributions that the initial contributions are "eroded".

194 In Bilous v Mudaliar Ipp JA (with whom Giles and McColl JJA agreed) was cautious in adopting Brereton J's approach:

"[68] In Kardos v Sarbutt (at 567 [64]-[66]), Brereton J accepted the "erosion principle", regarding it as "part of the methodology for weighing and balancing the different contributions" when weighing the initial contributions with all other relevant contributions. There are dangers in elevating a process of reasoning to the status of a principle, and for the reasons I have given I consider it preferable that the erosion principle (as a rule) should play no part in a determination under s 20."

195 However, his Honour propounded his agreement with Hodgson JA in Howlett v Neilson in relation to the notions which underline the "erosion principle":

"[48] The initial contributions made by parties to a de facto relationship may often take the form of a family home or other assets in the form of immovable property. During the course of the relationship, property may be acquired and registered in the name of one of the parties, alone. The duration of the relationship and the significance of the respective contributions of the parties may lead to a court adjusting the parties' interests in such a way that the party who provides such property (or the party who is the registered owner) receives substantially less than the full value of that property when the relationship is terminated.

[49] The adjusting order may require the party making the initial contribution (or the party who is the registered owner) to pay the other party a sum of money that represents a proportion of the increase in the capital value of the property concerned or, indeed, its overall value. Hodgson JA emphasised the latter possibility in Howlett v Neilson when he said (at 410 [35]): "[I]t is plainly not the case that the contributions of the parties should be considered as making it just and equitable that there be an order only concerning increases in the value of assets over and above initial contributions". (Emphasis added)

196 The erosion principle has been discussed in a number of recent cases. In Wendt v Wood [2011] NSWSC 781 Slattery said:

"[98] In the course of final submissions, counsel...referred me to the so-called " erosion principle". Indeed, it is not a principle of law at all but really a short hand description of the approach to the evaluation of contributions which recognises that initial contributions do not carry forward full weight but diminish in significance by reason of the other subsequent contributions made by both parties during the relationship: Sharpless v McKibbin [2007] NSWSC 1498 at [78] per Brereton J. It is not really a question of erosion but of what weight is to be attached in all the circumstances to the initial contributions, in the context of all the contributions."

197 In this case given the use by the parties of the Gaythorne property for borrowing and the benefit of successful joint property investments that flowed from that use I do not see that there is any real reason why the value of that contribution should be diminished.

198 The major contribution to the assets of the parties has been their successful property developments. There were joint projects to which they both contributed to different extents as outlined above. Overall the non-financial contributions favour the plaintiff.

199 Giving due weight to the contributions of Gaythorne by the defendant, I think an appropriate division is 40% to the plaintiff and 60% to the defendant. The property of the parties, with add backs is $1,605,782. After division of this amount into these proportions and subtracting the applicable add backs, the plaintiff receives $342,313 ($642,313 less $300,000) and the defendant $542,469 ($963,469 less $421,000).

200 Thereafter account should be taken of what other assets have been taken or should be retained by them. These are:

Plaintiff		Defendant
Household contents	$5,000	50% interest in River Road	$67,500
Glassware	$12,500	Art works	$15,000
Janmell	$236,196	Mower	$3,000
Superannuation	$17,000	Glassware	$12,500
Total	$270,696	Total	$98,000

201 Deducting these from each party's entitlements referred to above gives the plaintiff $71,617 ($342,313 less $270,696) and the defendant $444,469 ($542,469 less $163,000) of the remaining assets of the parties.

202 The balance of the assets of the parties should be sold, debts paid and the resulting sum distributed to the parties in the proportion set out in the preceding paragraph.

203 The defendant made a submission that due to her difficult financial situation she should be paid in cash with the defendant to retain the assets. Given that she will be entitled to her award of damages, which is substantial, this will relieve her financial situation. It is preferable that both parties have an incentive to attend properly to the realisation of their assets.

The defendant's cross claim for assault

204 I have found that the following assaults have been proved:

1. The argument in May 1993 (assault);

2. The threat to kill and battery in 1995 (assault and battery);

3. One occasion of ordering the defendant out of the house in 1996 (assault);

4. The beer incident and threat to shoot in December 2000 (assault and battery);

5. Threat to shoot in 2007 (assault).

205 The defendant claims damages, aggravated and exemplary damages. However, before considering her claim I must ascertain whether or not her causes of action in relation to each occasion of assault and/or battery are statute barred.

The applicable limitation period

206 In relation to all of the incidents except the last incident in 2007, the relevant section in the Limitation Act 1969 is section 18A, which relevantly reads:

"18A Personal injury

(1) This section applies to a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to:

(a) ...

(b) ...

(c) a cause of action to which Division 6 applies.

Note. Division 6 provides for the limitation period for non-motor accident actions for death or personal injury resulting from an incident that occurs on or after the commencement of that Division.

(2) An action on a cause of action to which this section applies is not maintainable if brought after the expiration of a limitation period of 3 years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims."

207 Campbell J in O'Neill v Foster (2004) 61 NSWLR 499 at [44] confirmed that s 18A is the correct section to apply in a cause of action for assault given the extended definition in s 11 of the Limitation Act 1969 of "breach of duty", which includes trespass to the person. By analogy s 18A also governs a cause of action for battery.

208 In relation to the 2007 incident, section 18A does not apply. Since the "act or omission alleged to have resulted in the injury... with which a claim is concerned" occurred on or after the commencement of Part 2, Division 6 of the Limitation Act 1969, being 6 December 2002, Division 6 governs the cause of action (see s 18A (1)(c) and 50A).

209 Therefore section 50C applies to the cause of action for the assault in 2007. Section 50C is the crucial section in Division 6 for the purposes of these proceedings. The section reads:

"50C Limitation period for personal injury actions

(1) An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire:

(a) the 3 year post discoverability limitation period, which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff,

(b) the 12 year long-stop limitation period, which is the period of 12 years running from the time of the act or omission alleged to have resulted in the injury or death with which the claim is concerned..."

210 Section 50D defines the 'date on which a cause of action is discoverable':

"50D Date cause of action is discoverable

(1) For the purposes of this Division, a cause of action is discoverable by a person on the first date that the person knows or ought to know of each of the following facts:

(a) the fact that the injury or death concerned has occurred,

(b) the fact that the injury or death was caused by the fault of the defendant,

(c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action.

(2) A person ought to know of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact.

(3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person..."

211 However the defendant, by her counsel, did not rely on s 50D and did not argue that 'discovery' of her injury occurred at a later date than the date on which the 2007 incident occurred. Furthermore ss 50C and 50D apply only to the 2007 incident, at which time the defendant appears to have previously "discovered" the psychological injury that she alleges resulted from the various incidents of assault and/or battery. In any event the defendant is not statute barred in relation to the 2007 incident (see table below).

212 I note that counsel for the defendant provided submissions in which section 14 of the Limitation Act 1969 was identified as the appropriate section to apply in relation to incidents occurring between mid-1993 and 2 December 1999. Given that the present s 18A was introduced by the Limitation (Amendment) Act 1990, which commenced on 1 September 1990, I am of the view that s 18A is the correct provision to apply in relation to causes of action for assault and/or battery that occurred between 1 September 1990 and the commencement of Part 2, Division 6 on 6 December 2002.

213 Both sections 18A and 50C legislate a statute bar on a cause of action if an action is "brought" after a certain time limit. In relation to when an action is "brought", s 74 of the Limitation Act 1969 relevantly states:

"74 Set off etc

(1) Where, in an action (in this section called the principal action), a claim is made by way of set off, counterclaim or cross action, the claim, for the purposes of this Act:

(a) is a separate action, and

(b) is, as against a person against whom the claim is made, brought on the only or earlier of such of the following dates as are applicable:

(i) the date on which the person becomes a party to the principal action, and

(ii) the date on which the person becomes a party to the claim..."

214 In this case the earlier date on which the plaintiff became a party to the principal action is the date on which the plaintiff's statement of claim was filed, namely 27 August 2008 (see similar reasoning of Campbell J in O'Neill v Foster at [48] to [54]). Therefore, the defendant's cross-claim of assault and battery was "brought" on that date.

215 I note that counsel for the plaintiff submitted in his written submission that by virtue of s 65 of the Civil Procedure Act the date of the initial filing of the cross-claim, namely 8 April 2009, was the date of commencement of the proceedings for the purposes of determining whether the action is statute barred. I agree that the effect of s 65 is that the amendments to the cross-claim take effect as if they formed part of the original cross-claim filed on 8 April 2009. However, in my view s 65 is not contrary to s 74 of the Limitation Act 1969 so that for the purposes of determining when the action was "brought", the relevant date remains the date on which the plaintiff filed the statement of claim.

216 The following table summarises the applicable limitation periods in relation to the five incidents that I have found proved:

No.	Incident	Date of incident	Applicable legislation and limitation period	Date limitation period expired	Date at which action "brought"
1.	Argument (assault)	May 1993	s 18A	May 1996	27 August 2008
2.	Threat to kill and battery (assault and battery)	1995	s 18A	1998	27 August 2008
3.	Ordering the defendant out of the house (assault)	1996	s 18A	1999	27 August 2008
4.	The "beer incident" and threat to shoot (assault and battery)	December 2000	s 18A	2003	27 August 2008
5.	Threat to shoot (assault)	2007	s 50C	2010	27 August 2008

Extension of time based on disability (s 52 of the Limitation Act 1969)

217 The defendant's causes of action in relation to all incidents except for the 2007 threat to shoot are prima facie statute barred. However, the defendant relied on s 52 of the Limitation Act 1969 to argue that she was suffering a disability and that the running of the limitation period should be suspended for the duration of her disability, namely from 1993 until 9 June 2010 (being the date on which the defendant filed her amended statement of cross-claim). Therefore the three-year limitation period (section 18A) would start from 9 June 2010 and would not expire until 9 June 2013, meaning the actions would be brought well within time.

218 Section 52 states:

"52 Disability

(1) Subject to subsections (2) and (3) and subject to section 53, where:

(a) a person has a cause of action,

(b) the limitation period fixed by this Act for the cause of action has commenced to run, and

(c) the person is under a disability,

in that case:

(d) the running of the limitation period is suspended for the duration of the disability, and

(e) if, but for this paragraph, the limitation period would expire before the lapse of three years after:

(i) the date on which the person last (before the expiration of the limitation period) ceases to be under a disability, or

(ii) the date of the person's death,

(whichever date is the earlier), the limitation period is extended so as to expire three years after the earlier of those dates.

(2) This section applies whenever a person is under a disability, whether or not the person is under the same or another disability at any time during the limitation period..."

219 Disability is defined in s 11(3) of the Limitation Act 1969. The defendant relies on s 11(3)(b)(i), as follows:

(3) For the purposes of this Act a person is under a disability:

...

(b) while the person is, for a continuous period of twenty-eight days or upwards, incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of:

(i) any disease or any impairment of his or her physical or mental condition..."

220 In Kotulski v Attard [1981] 1 NSWLR 115 at 117-118, Slattery J discussed this concept of "disability":

"Section 11(3)(b) is concerned with two classes of person:

'One who is incapable" (which conveys the concept of total

inability) and the other "substantially impeded in the management of his affairs in relation to the cause of action ... by reason of disease or impairment or physical or mental condition.'

According to the Shorter Oxford Dictionary to "impede" means to

obstruct in progress or action; to hinder or to stand in the way of.

"Substantially", in my view, does not mean trivial or minimal, neither does it mean total: see R v Lloyd [1967] 1 QB 175. "Mental condition" which is not defined in the Act is, in my view, a condition of or pertaining to the mind which is the seat of consciousness, thoughts, volition and feelings. It seems to me that the expression "mental condition" is meant to cover the mind's activities in all its aspects, including the ability to form a rational judgment, or to exercise willpower to control physical acts in accordance with rational judgment (...) I am of opinion that it is a relevant matter, in the consideration of the question raised by the notice of motion, to have regard to how a reasonable person without any impairment would conduct himself in the management of his affairs. A reasonable person without impairment would be able to reason normally about the matters relevant to a potential cause of action, to understand and consider advice and to give instructions about any action."

221 The above comments were approved by the Court of Appeal in Olive v Johnstone [2006] NSWCA 21 at [61] and in New South Wales v Harlum [2007] NSWCA 120 at [61].

222 In Kotulski v Attard, Slattery J found that a plaintiff suffering from a "depressive state with some hysterical features (...) that impaired her volition and judgment" was suffering from a "disability" for the purposes of suspending the limitation period.

223 In Saunders v Jackson [2009] NSWCA 192, Hoeben J (with whom Ipp and Macfarlan JJA agreed) said that "a consideration of this question [whether a person is substantially impeded in the management of the cause of action] must have regard to the nature of the particular cause of action". His Honour said that a decision to commence an action after an industrial accident or a motor vehicle accident would be relatively straightforward, in contrast to the case before him, being an allegation of sexual assault within a family. In this case, the decision to bring an action in the context of domestic violence, against a de facto partner, could not be said to be "relatively straightforward".

224 In New South Wales v Harlum Beazley JA (with whom Tobias JA agreed) emphasised the affect that a person's mental condition might have on the willpower to commence proceedings, at [94] - [95]:

"[94] The State's approach also fails to deal with another of the other fundamental aspects of bringing a claim, namely that it requires the exercise of willpower to initiate the claim: see Kotulski at 118. In this regard, I consider that it is important to understand that it is not only a question of having the willpower to engage in the task of commencing proceedings. Such an approach takes a far too simplistic view of what is involved in the commencement of an action. In making a decision to commence an action, the person is also making a decision to continue with the claim.

[95] Even if a person is able to fulfil each of the requirements contained in the State's approach, including the making of a decision to instruct a lawyer and to provide instructions, the person may not have the willpower to engage in all that is required to commence an action because of that person's mental condition."

225 In this case the defendant alleges that because of her pleaded injuries she has been under a disability from 1993 through to the last of the pleaded assaults and continuing. The pleaded injuries are post traumatic stress disorder, adjustment disorder and/or mixed anxiety depressive syndrome.

Whether the defendant suffers from a disability (medical evidence)

226 This requires a consideration of the medical evidence to determine the effect of not only the assaults but also the statements on other occasions which although not constituting in themselves an assault, may be relevant to a medical opinion about the defendant's disability.

227 The defendant initially sought to lead evidence from Dr Godsall a consultant psychiatrist. Five of his initial reports were not admitted into evidence but his report of 26 July 2011 was admitted and in that report he diagnosed the defendant in these terms:

" I diagnosed that Ms Mulcahy is suffering from PTSD as a result of exposure to chronic situational stress, bullying, threatened violence, verbal violence and derogatory, demeaning and trivialising comments and, along with the foregoing history, symptoms and signs consistent with a significant emotional reaction of great intensity if the situation in which she found herself was traumatic for her."

228 The parts of the report which dealt with when she commenced suffering from that disability were rejected for the reasons which I gave when admitting the report Exhibit 4.

229 The defendant also called evidence from a Dr Kraushaar who is a psychologist. He also made a diagnosis of PTSD and probably an adjustment disorder. The evidence would suggest that these are in fact psychiatric diagnoses, which should only be made by a qualified psychiatrist. He treated her inter alia by eye movement desensitisation and reprocessing (EMDR).

230 During the hearing the defendant also lead evidence from a Dr Robert Fisher a consultant psychiatrist who diagnosed possible PTSD and a major depressive disorder (the later of which was in remission whilst she was taking avanza). He also gave evidence that she was suffering a disability within s 52 of the Limitation Act 1969 "from the earliest time in the relationship". Dr Fischer had also been her treating psychiatrist.

231 The plaintiff called evidence from Dr Peter Klug a forensic psychiatrist. He gave evidence that in his opinion the defendant was not suffering from any severe psychiatric condition and certainly not PTSD or a major depressive disorder. According to him she has probably suffered at times from an adjustment disorder. He also addressed the medical evidence called by the defendant.

232 During the course of the relationship the defendant was treated for many years by her GP a Dr Wong. He referred her to Dr Kraushaar on 21 June 2007 shortly before the termination of the relationship. She was first referred to Dr Fischer for treatment on 5 January 2010.

Dr Kraushaar (called by the defendant)

233 Dr Kraushaar is an experienced psychologist. He initially graduated in 1975 and obtained his PhD in Applied Psychology from the University of Otago (Dunedin Medical School). He has practised as a clinical psychologist since that time in New Zealand, USA and now in Brisbane, Australia. In addition he has trained in Eye Movement Desensitisation and Reprocessing (EMDR) in 2009 which he uses in conjunction with his practice as a psychologist. He has worked as a clinical psychologist treating service personnel suffering from posttraumatic stress disorder.

234 As I have mentioned Dr Kraushaar first saw Mrs Mulcahy on 6 July 2007. At that time she was treated for symptoms of tension and insomnia. He saw her again on 14 March 2008. In October 2008 there was a second management plan in which Mrs Mulcahy was again referred to Dr Kraushaar for a stressful situation, depression and anxiety. She continued her treatment with Dr Kraushaar in 2008 and 2009.

235 On 15 September 2009 Dr Kraushaar wrote to the defendant and the lawyers asking them to take Mrs Mulcahy's mental health into consideration during the possible mediation process and made suggestions on how the mediation could be conducted. He said that at that stage he thought that the diagnosis of battered wife syndrome was relevant. He also said:

"Indeed, at its worst, this man threatened you, 'to get out of his sight'. otherwise he would kill you. " Such threats over time raise the issue of PTSD over an extended period of months which are exceedingly damaging for anyone's mental health."

236 This is the first time that Dr Kraushaar has suggested the existence of PTSD. I note that the statement of claim that commenced the proceedings was filed on 27 August 2008 and a defence was filed on 8 April 2009. In his report of 19 February 2010 Dr Kraushaar diagnosed PTSD.

237 As I have mentioned Dr Kraushaar does not hold psychiatric qualifications and Dr Klug, a psychiatrist, expressed the view that for this reason Dr Kraushaar was not qualified to express an opinion about the existence of PTSD. Dr Fischer was critical of the use of the manual by those not having Psychiatric qualifications.

238 In these circumstances I do not think I can accept Dr Kraushaar's diagnosis.

239 No doubt Dr Kraushaar's treatment of the defendant with EMDR in conjunction with cognitive behaviour therapy (CBT) may have been of assistance. At that stage the EMDR was deferred so it would not interfere further with the defendant giving her evidence. In his last report of 6 July 2011 Dr Kraushaar himself indicated that the treatment for EMDR together with cognitive behaviour therapy should continue and that she would require supervision from a psychiatrist for the management of medication issues until she ceased the need for antidepressant and anti-anxiety medication. He does not give any evidence relevant to the time of the onset of her disability and from what he says she was then suffering.

Dr Godsall (called by the defendant)

240 Dr RR Godsall, consultant psychiatrist, obtained his qualifications in the 1970s. He has practised extensively in the United Kingdom and Australia. He is a Fellow of the Royal College of Psychiatrists and a Fellow of the Institute of Australian Psychiatrists.

241 As I mentioned in my introduction only one of Dr Godsall's six reports was admitted into evidence. Although in his report he does refer to his earlier reports the one that was admitted is mainly a stand-alone report. However, as I have noted, he does not give any admissible evidence as to when the defendant may have been suffering from a disability within the meaning of the Act.

242 Dr Peter Klug, forensic psychiatrist, points out in his reports that the conclusion reached by Dr Godsall, namely, that the defendant suffered from a post-traumatic stress disorder or an adjustment disorder is not appropriate. He explains that these are very different illnesses. Dr Klug states that a post-traumatic stress disorder is a severe psychiatric illness whereas an adjustment disorder is a mild one. The symptoms on which Dr Godsall relied and which are set out in paragraph 17 of his report dated 24 March 2010 are according to Kr Klug not compatible with a diagnosis of a post-traumatic stress disorder.

243 One of the problems in assessing the usefulness of Dr Godsall's report is that he was not supplied with the notes of the GP. Another is that he has kept no notes of his interview(s) with the defendant as he destroyed them. This makes it difficult to check on the basis of his opinion.

244 Early in cross-examination Dr Godsall was taken to an extract from the DSM-IV-TR in the diagnostic psychiatric manual produced by the American Psychiatrists Association. In particular he was taken to the diagnostic criteria for PTSD which are as follows:

"Diagnostic criteria for 309.81 Posttraumatic Stress Disorder

A. The person has been exposed to a traumatic event in which both of the following were present:

(1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others

(2) the person's response involved intense fear, helplessness, or horror. Note: in children, this may be expressed instead by disorganized or agitated behaviour

B. The traumatic event is persistently reexperienced in one (or more) of the following ways:

(1) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions. Note: In young children, repetitive play may occur in which themes or aspects of the trauma are expressed.

(2) recurrent distressing dreams of the event. Note: In children, there may be frightening dreams without recognizable content.

(3) acting or feeling as if the traumatic event were recurring (includes a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated). Note: In young children, trauma-specific reenactment may occur.

(4) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event

(5) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event

C. Persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three (or more) of the following:

(1) efforts to avoid thoughts, feelings, or conversations associated with the trauma

(2) efforts to avoid activities, places, or people that arouse recollections of the trauma

(3) inability to recall an important aspect of the trauma

(4) markedly diminished interest or participation in significant activities

(5) feeling of detachment or estrangement from others

(6) restricted range of affect (e.g., unable to have loving feelings)

(7) sense of a foreshortened future (e.g., does not expect to have a career, marriage, children, or a normal life span)

D. Persistent symptoms of increased arousal (not present before the trauma), as indicated by two (or more) of the following:

(1) difficulty falling or staying asleep

(2) irritability or outbursts of anger

(3) difficulty concentrating

(4) hypervigilance

(5) exaggerated startle response

E. Duration of the disturbance (symptoms in Criteria B, C, and D) is more than 1 month.

F. The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.

Specify if:

Acute: if duration of symptoms is less than 3 months

Chronic: if duration of symptoms is 3 months or more

Specify if:

With Delayed Onset: if onset of symptoms is at least 6 months after the stressor"

245 The initial requirement for diagnosing PTSD is that described in paragraph A. This raises real questions in this case because none of the events involved actual death or serious injury although some of them related to threatened death.

246 When the cross-examination came to this point Dr Godsall indicated that he used the criteria in the manual with modern variations. He was asked about the variations in this extract of the transcript:

Q. Well, in coming to your diagnosis, did you use this criteria or did you use something else?

A. No, this criteria with the modern variations.

Q. You used this criteria with variations, you say?

A. Mmm.

Q. And what variations?

A. Mainly on the - well, basically the only variation was really on the nature of the stressor and the increased subjectivity. If I may explain this paragraph here, this is from the world - this is from God. This is the new Bible. Glen Gabbard, Professor at Harvard and Menninger. The DCM-IV criteria--

Q. I am sorry, can I just stop you there, doctor. We didn't get the name?

A. Glen Gabbard, Professor Gabbard, G-A-B-B-A-R-D. Sorry. Right?

Q. Well, you got it from Dr Gabbard?

A. Professor Gabbard.

Q. Professor Gabbard, I should say, and in respect of Professor Gabbard's book, did you use or rely on any part of it and, if so, could you identify which part you used?

A. Well, it is covered in this paragraph:

"The DSM-IV criteria focused primarily on circumscribed traumatic

events. They do not capture the more complex form of PTSD in

which the victim may be subjected to prolonged or repeated trauma whilst in captivity or under the total control of the perpetrator. Whereas this syndrome may co-exist with more simple forms of PTSD, a variety of symptoms extend beyond the DSM-IV."

And he goes on to just set possible symptoms.

Q. Just stopping you there, doctor. You don't list this reference anywhere in your report, do you?

A. No, I don't, I am sorry. I don't think so, no. I did on one report give Gabbard as a reference. I am not quite sure which date it was.

Q. I am just talking about one report.

A. Yeah.

Q. There is no mention in that report of Professor Gabbard at all, I suggest?

A. I can only explain that as bad habits because that's normally the accepted thing these days in the--

Q. Doctor, we are looking at your report--

A. Mmm mmm.

Q. --which has been provided to me which I have sought to read and understand and in respect of your diagnosis, I took it that you relied upon the criteria set out in the document in front of you?

A. That, plus - that plus other knowledge and experience. We don't normally quote the other knowledge and experience because it is assumed that there is variations and DSM-IV is very heavily criticised.

Q. Where are your caveats--

A. My caveats are in the--

Q. --to the criteria in--

A. My caveats are in the degree--

Q. Can I finish the question, please?

A. --of the stressor.

Q. Can I finish the question?

A. Sorry, yes.

Q. Where are the caveats in your report regarding the use of DSM-IV-TR 309.81 post-traumatic stress disorder criteria?

A. I didn't feel the need to specify that. I didn't feel the need to specify that. Because my experience in recent years as an expert witness, I have been able to explain the variations and the restrictions of DSM-IV?

Q. Well, it is not explained in your report, is it?

A. No, because it has been accepted for granted. That's why they are going to DSM-V.

Q. And you understood that this report was a forensic report for the purpose of these proceedings?

A. It's not my understanding of forensic. Forensic to me is - is an offender. Sorry, a psychiatric patient who is an offender. I haven't seen anybody here who is an offender. It's an ordinary psychiatric report.

Q. It is not a forensic psychiatric report?

A. Not in my understanding of the word "forensic".

Q. Not a medical legal report?

A. Medicolegal, yes.

247 Unfortunately I was not taken to any further explanation by Dr Godsall of what was said to be the modern variations on the standard manual in this area. This makes it extremely hard to accept Dr Godsall's opinion when one does not have the full information for the basis of his opinion.

Dr Fisher (called by the defendant)

248 Dr Robert Fisher obtained his qualifications as a consultant psychiatrist in the mid 1970s. He is currently Head of Department of Psychiatry, St Vincent's Clinic and he is a consultant to the private and general hospital.

249 As I have mentioned one of his diagnoses was possible PTSD. He was criticised in at least two areas in respect of his report. The first was in January 2010 he did on one occasion act as the treating psychiatrist for Mrs Mulcahy and later he gave a report, which has been used in this hearing. There are ethical guidelines of the Royal Australian, New Zealand College of Psychiatrists which suggest:

"The psychiatrist should avoid being placed in a situation in which there are both therapeutic and medical legal aspects to the assessment the psychiatrist should advise the patient/lawyer/referring doctor that these two aspects of management should be carried out by different psychiatrists. This does not preclude a psychiatrist from providing a treating doctor's report for a patient already under his or her care."

250 The situation that Dr Fisher found himself in was slightly unusual in that he was called by the solicitor, Mr A Connolly, who was concerned about whether Mrs Mulcahy was suicidal and needed an urgent assessment from a psychiatrist on that aspect. It is clear that when Mr Connolly was arranging this with Dr Fisher he also made it known that he would want a medico-legal certificate and a report at a later stage. There was only this one time when Dr Fisher was the defendant's treating doctor and it will be evident that most of the treatment was from Dr Kraushaar and Dr Wong. Having heard Dr Fisher's explanation I am satisfied that his position when giving his medico-legal opinion was not compromised.

251 It was also pointed out that in his first report, when Dr Fisher reported to Mr Connolly about the then state of mind of the defendant, he did not make any reference to PTSD. In cross-examination Dr Fisher conceded that he did not ask about PTSD and the reasons he gave were logical. He was focused on anxiety and depression and the potential for the defendant to be suicidal which was the immediate cause of the referral to him. I do not place any great significance on the fact that he did not recognise the possibility of PTSD in his first report.

252 It is to be noted that Dr Fisher was not definitive in his diagnosis of PTSD but only describes it as possible.

Dr Klug (called by the plaintiff)

253 Dr Peter Klug was a Fellow of the Royal Australia & New Zealand College of Psychiatrist in 1987. He has positions as a visiting medical officer and consultant at the Mood Disorders Unit, Northside Clinic and a number of other appointments. His current appointments include being a member of the New South Wales Mental Health Review Tribunal. He practises extensively in the medico-legal area.

254 Dr Klug was asked to review the defendant which he did over two interviews spread a month or two apart. At the two interviews the defendant was accompanied by Dr Kraushaar who remained throughout the interviews which were recorded.

255 One criticism of Dr Klug was the fact that prior to the first interview he did not read the extensive affidavits of the defendant which had been provided to him. However, he read them before the second interview. I also note that Kr Klug repeatedly tried in a non-leading or confrontational way to get the defendant give him her story in the interviews which she tried to avoid by referring him to her affidavits.

256 Dr Klug was also criticised about his denunciation of the EMDR as not being evidence based technique. It was suggested to him that EMDR was used and recommended as a treatment in a number of clinical practice guidelines in treatment for PTSD. His view, which was not shaken, was that EMDR may be combined frequently with other therapies such as cognitive behaviour therapy (CBT) and more likely CBT is the useful treatment, which has the successful result. His reasoning in respect to the literature to which he was taken I would accept.

257 The view that Dr Klug holds is no doubt based upon his experience and what he sees as the use of EMDR now in mainstream psychiatry. His evidence is that it is little used in clinical practice by psychiatrists and in established psychiatric institutions.

258 There were other criticisms of Dr Klug relating to errors in his report but I do not regard them of significance.

Analysis of medical evidence

259 The question of whether the defendant is suffering or has suffered from PTSD has attracted a range of different medical opinions. In the absence of a full explanation from Dr Godsall about the basis for his assessment, I am left with the views of Dr's Klug and Fisher with Dr Fischer not being definitely able to diagnose the condition. Given the nature of the traumatic events in this case it is understandable that he should have that reservation. I am not satisfied that the defendant is suffering or has suffered from PTSD.

260 The more difficult question is whether her illnesses are such as fall within the criteria in s 52 of the Limitation Act 1969. Dr Fischer gave the following relevant evidence on this aspect in answer to questions put to him by the defendant's solicitor:

"OPINION

In your letter of instruction, dated June 15, 2011, you pose a number of specific questions and I shall answer these seriatim, as you have indicated, basing my opinion on the balance of probability.

You ask -

If Mrs Mulcahy suffers from a disability according to the definition of disability, provided by Section 52. The Limitations Act 1960 (NSW) provides limits on the time within which legal proceedings may be instituted.

Section 52 of the Act provides that where a person has a cause of action and the limitation period fixed by the Act, as commenced to run, a person is under a "disability", the running of the limitation period is suspended for the duration of that "disability".

For the purpose of Section 52, "disability" is defined by Section 11(3) of the Act, which provides that a person is under a disability:

while the person is under the age of 18 years, or

while the person is, for a continuous period of 28 days or upwards, incapable of, or substantially impeded in, the management of his or her affairs, in relation to the cause of action in respect of the limitation period in which the question arises, by reason of:

(i) Any disease or any impairment of her physical or mental condition.

This definition of disability requires that, if the Section 52 exception is to apply, Mrs Mulcahy must have suffered from an incapacity or a substantial impediment in the management of her affairs, because of a disease or an impairment of her mental condition.

The disability that is relevant is one that renders Mrs Mulcahy incapable of, or substantially impeded in, the management of her affairs, including instituting legal proceedings for assault and battery.

You tell told me that "Court of Appeal of New South Wales has concluded that the inquiries made under Sub-Section ll(3)(b) is directed to determining whether a person is able to reason normally about the matters relevant to a potential course of action, to understand and consider advice and to give instructions about any action that a fundamental aspect of bringing a claim was that it required the exercise of willpower to initiate the claim, and to continue with the claim (State of New South Wales v Harlum [2007] NSWCA120)".

Furthermore, you say "Section ll(3)(b) has also been held to be concerned with different classes of persons - those who were "incapable" (which conveys the concept of total incapacity), and those who were "substantially impeded in the management of his affairs in relation to the cause of action by reason of disease or impairment of physical or mental condition".

You go on to say that "mental condition" covers the mind's activities in all its aspects, including the ability to form a rational judgement, or to exercise willpower to control physical acts in accordance with rational judgement. It is a relevant matter, in the consideration of the question, to have regard to how a reasonable person, without any impairment, would conduct him or herself in the management of his or her affairs (KOTULSKI v ATTARD [1981], NSWLR115).

1.It is my view, that, to a significant extent, Mrs Mulcahy was in "thrall" to Mr Cooper, whom she had found charming and good company and pleasant initially to her children and initially a good sexual partner, but who, over a passage of months from the beginning of their relationship, demonstrated himself to be jealous of her relationship with her two sons, extremely needy of attention, irascible and then increasingly, with the passage of time, was allegedly verbally abusive in the extreme, prone to using the worst of expletives in the English lexicon and threatening her with physical violence and, again, allegedly', as pointed out in her affidavit, subjecting her to physical violence at times and, in the context of owning two rifles, engendering in her a realistically-based fear of a potential threat to her life.

The individual's own view of their relationship, their own observations of their family of origin relationships, their experiences of earlier relationships, particularly sexualised relationships as they go through their various developmental phases and stages, the chemistry of the relationship and the phenomenon of cognitive dissonance all have their part to play.

Often enough, the "battered woman", if indeed that is the victim, will state that the abuser is so remorseful after it has happened, there are explanations in the abuser's childhood for them having poor temper control, having been abused themselves, or how much they feel their abuser needs them, the desire to keep an integrated marriage or family and the investment of time and emotion that has been made by the abused in the relationship, are cited as rationalisations for staying in the relationship.

I believe there is clear evidence that most of these elements have had their part to play in Mrs Mulcahy's decision to stay on in the relationship, made worse by her decreasing sense of self-confidence, attractiveness and capacity to live a life alone.

So, I do believe that Mrs Mulcahy was suffering from a disability, according to the definition of "disability" provided by Section 52.

2. I believe that her primary condition was a Mixed Anxiety Depressive syndrome, induced by Mr Cooper's stress-producing verbal and physical abuse, which manifested insidiously initially and then became more profound with the passage of time.

I believe that, in this state, Mrs Mulcahy's confidence and her ability to assert herself was so significantly impaired, and she had become so pathologically dependent on Mr Cooper, that she was not capable, on the balance of probability, of making rational decisions about whether or not to stay with him, whether or not to report his abusive behaviour to the police.

3.I believe, on the balance of probability, that from the earliest time in the relationship, she was substantially impeded in her ability to manage her affairs. I would posit her failure to take a stand against Mr Cooper's domineering behaviour, particularly with respect to his criticisms of her son, manifest in the first year of her relationship with him, and was marked by the departure of her son, David, from the family home. In permitting this to occur, she surrendered her loyalty to her son, to her commitment to her relationship with Mr Cooper, and it would appear that he then exercised a "svengali-like" influence upon her, so that, despite his extreme abusive behaviour, she remained in the relationship.

4. You ask -

Has the condition or conditions been continuous since its first manifestation?

(ii)You ask if such "substantial impediment/disability" is not continuing, then in my opinion, on the balance of probabilities, would such impediment/disability have persisted down to the time when Mrs Mulcahy in fact was able to obtain legal advice and understanding of, and an ability to pursue, her rights in respect of the assaults and battery?

It is my view that Mrs Mulcahy experienced an insidious deterioration in her capacity to assert herself in this very unequal relationship with Mr Cooper and, in her increasingly anxious and depressed and unconfident state, was not able to take a stand against what was extreme and unreasonable behaviour.

I believe that it is only since she separated from Mr Cooper that she was able to fully appreciate the extent and severity of his abusive behaviour, and I do believe that this persisted down to the time that Mrs Mulcahy was in fact able to obtain legal advice and an understanding of, and ability to pursue, her rights, in respect of the assaults and battery.

5. You ask -

Is the condition, or conditions, still being suffered by Mrs Mulcahy?

Mrs Mulcahy is no longer living with Mr Cooper, so she is no longer directly subject to his ongoing verbal and physical abuse, however, the impact of those years, during which she was subject to such abuse, would appear to have left their mark on her psychologically and emotionally, and his actions in the legal context serve as persisting assault.

It is my view then that the condition suffered by Mrs Mulcahy persists in that context.

6. You ask -

How did the condition, or conditions, affect Mrs Mulcahy's management of her affairs, in relation to the cause of action for assault and battery, in particular, alleged assaults or battery specified in Paragraph 13 above.

I have already indicated that I believe that Mrs Mulcahy became so anxious and depressed and lacking in self-confidence, remaining "in thrall" of Mr Cooper, that she was not able to think rationally about the situation she found herself in, or to assert herself appropriately by either leaving Mr Cooper, seeking an AVO, or reporting him to the police and having him charged with assault and battery.

7.You ask -

Did the condition, or conditions, in particular render her incapable of, or substantially impeded, the management of her affairs, in relation to each of the assaults and batteries inflicted upon her?

I believe, on the balance of probability, that she was caught up in a particular frame of mind, desperately hoping that the relationship would be salvageable and that the once-charming and considerate de facto husband would once again display such apparent loving and considerate behaviour. The fact that, during her time with him, she experienced a degree of intermittent reinforcement of the idea that he was a suitable companion, by demonstrating care and expressing a wish to re-engage with her, even after the various periods of separation, that she was caught up emotionally in the hope that such a meaningful resumption of the original style of relationship would occur.

8. You ask -

Is it reasonable, having regard to her then condition, that Mrs Mulcahy was incapacitated, as set forth under Paragraph 6 (a)(1) of the Amended Statement of Cross-Claim Past Economic Loss?

I believe that it is reasonable, having regard to her then condition, that Mrs Mulcahy was incapacitated, as set forth.

9. You ask -

Similarly, would Mrs Mulcahy likely have been unable to carry out the work described in Paragraph 6 (a) (Hi) of the Amended Statement of Cross-Claim?

I believe that this is, on the balance of probability, likely to be true.

10.You ask-

Would I further provide my opinion, again, on the balance of probabilities only, as to whether it is likely that Mrs Mulcahy's current incapacity for work will continue into the future and, if so, is this probably the case on an indefinite basis?

I do not believe that it is likely that Mrs Mulcahy's current incapacity for work will continue into the future, if she engages in appropriate psychopharmacological and psychotherapeutic management of her Mixed Anxiety Depressive condition, and particularly if there is a favourable outcome to her Cross-Claim.

In the event that she fails to be successful in her Cross-Claim, I believe it will be tantamount to driving the final nail into the coffin of her self-confidence and her sense of fairness, in the face of the abuse to which she has allegedly been subjected to by Mr Cooper.

11.You ask-

What are the prospects, if any, of her returning, during the remainder of her prospective working life, to any gainful employment and, if so, in what measure?

As I have indicated above, I believe that with the correct intervention and with what is perceived as a fair outcome of the legal proceedings, she could return to gainful employment, subject to her successful response to treatment. The latter of course is yet to occur and is beyond definite prognostication at this stage.

261 As noted above Dr Klug says:

"My opinion is that Ms. Mulcahy is not suffering from any severe psychiatric condition. She certainly has not been suffering from a chronic post-traumatic stress disorder or a major depressive disorder. She has probably suffered, at times, from an adjustment disorder. An adjustment disorder is not a major mood disturbance but is nevertheless a significant psychiatric entity characterized by excessive distress and/or dysfunction in response to a specific stressor or stressors. If Ms. Mulcahy has suffered from an adjustment disorder (chronic or intermittent) it would need to be specified what the stressors were that induced this condition. To my knowledge, and from the history Ms. Mulcahy provided at interview, there has been no exposure to traumatic stressors. I note she is being medicated with an antidepressant and a minor tranquillizer and this is compatible with the diagnosis of an adjustment disorder. "

262 In response to Dr Fischer's report he says:

"ln summary, there is nothing in the further documentation by Dr. Fisher to justify any change in my opinion, I do not believe Ms, Mulahy is suffering from a disability under the relevant Section, 1 do not believe she is, or has been, suffering from a major psychiatric disorder but may have suffered from a recurrent adjustment disorder. The terms "battered woman" and '"battered wife syndrome" are, in my view, not appropriately applied to Ms. Mulcahy given that there is a connotation of severe psychiatric illness."

263 There was also criticism of the use by Dr Fischer of the terms "Mixed Anxiety Depressive syndrome". His explanation which I find acceptable was as follows:

""Q. In that report Dr Klug seeks to criticise your diagnosis by stating that mixed anxiety depressive syndrome is not to be found in DSM-IV. What is your comment on that statement?

A. Strictly speaking, he is correct, it isn't found in the diagnostic entity in DSM-IV. It is found in the preliminary drafts of DSM-V, which is the successor of DSM-IV. In reality people have argued very strongly that this is a useful way of characterising the sort of disorder I believe Mrs Mulcahy suffered from because there is a such a mixture of anxiety and depression which describes

where the patient is experiencing. Furthermore, may have etiological implications. In other words, often enough severe depression is preceded by being very stressed and anxious. One of the aims of the DSM system is to try and put things into categories can be tested and can end up understanding

causes by virtue of that classification or we find out what we classify as separate entities are the same entity. There is some scientific and logical basis to this approach. So in summary the term mixed anxiety depression is something many many people work in psychiatry would use as diagnosis and is about to become a official diagnosis in DSM-V and Dr Klug is correct it is not

in the current literature. He is correct in that. I think the point I am making qualifies why I am putting it in.

264 Some things about the parties' relationship raise doubts about whether Dr Fischer's conclusions may be correct. Obvious ones are the fact that the defendant was a relatively high functioning individual throughout the relationship and another is the long periods of time between the assaults. In the plaintiff's submissions in reply he makes the following points:

"7.6 The point made at paragraph 154 of the earlier submissions which goes totally unremarked upon in the Defendant's submissions that a period of more than six years passes between the allegation at item 9 of the schedule of alleged assaults occurring in the Christmas/New Year period of 2000/2001 and the next chronological allegation which is item 3 occurring in March/April 2007. This fact comprehensively debunks the repeated suggestions of the Defendant's submissions that there is some "continuum" of abuse.

7.7 The impressive list of examples of conduct of the Defendant which demonstrate a lack of fear or intimidation including (in addition to the matters mentioned above):

7.7.1 Camping in seemingly remote places; T354.28

7.7.2 Choosing to live in the isolated location at South Bank Road. It is instructive to consider just some of the evidence on this aspect. The evidence of the Defendant herself starting at T215.04 that, at least at the time of the purchase of 290 South Bank Road in late 1999 and the farm in late 2003:

(a) she had no concerns about living there with the Plaintiff;

(b) this in circumstances where she was dependent on him to drive her anywhere away from the property; and

(c) and, at T217.11, at the time the parties were looking to purchase 290 South Bank property (in late 1999), she had no concerns about her personal safety or physical situation;

7.7.3 Pressing the Plaintiff to live at South Bank Road despite his initial lack of interest in purchasing that property;

7.7.4 The fact that she went shooting with the Plaintiff with a spotlight; T341.19

7.7.5 The dealings with Gaythorne and the purchase by the MFT of the Mitchelton property to assist David's wife buy a different house;

7.7.6 The pay out of the River Road loan after the Plaintiff had expressly declined to sign the documents required to be signed in this regard (see par 50.9 of the earlier submissions, par 502 of the Defendant's Affidavit of 29 June 2011 and T183.4);

7.7.7 The secret rental receipts from River Road and related CBA accounts;

7.7.8 The trip to Vanuatu in late 2007 post the date the Defendant alleges was separation;

7.7.9. The trip to Bribie Island;

7.7.10. Her control of the $55,000 loan to Wade (David Mulcahy's evidence was that he was not involved with this loan (T437.17 to 21) nor knew the details of the rent receipts of River Road (T417.47 to 418.09 and 427.18 to 36) and Wade Mulcahy's evidence was also that he did not know the details of the rent receipts of River Road (T113.22 to 31), which evidences the degree of involvement in these matters of the Defendant;

7.7.11 Her control and separateness in keeping the inheritance account. It should be noted that the inheritance was a modest amount of some $16,000, so that there is no credence in the suggestion by the Defendant that there is a basis for the separateness of these monies."

265 Interestingly on the long time between the assaults Dr Fischer said:

"Q. And in terms of the third category, those incidents would need to be constant, I think, is the word you used in the report. That is, there's this constant apprehension of being killed, maimed, or persons close to them being killed or maimed. Is that so?

A. Yes, it is.

Q. And if there were periods of many years without these incidents, that would be relevant to your assessment of the illness if there were periods of time where there were normal behaviour?

A. Well, interestingly, it actually generally works in the obverse way to that because what we know is that intermittent reinforcement in behaviour therapy is the most powerful way of reinforcing an idea or a feeling. So if indeed the acts - the actual acts of violence are unpredictable but do occur intermittently,

then that is more likely to engender fear and a sense of impotence in the face of the ongoing situation than where there are mild degrees of assault happening very regularly and predictably."

266 So far as the defendant's high functionality is concerned, he said:

"Q. Sorry, doctor, there is a matter Mr Priestley has reminded me. In respect of managing her affairs, that is Mrs Mulcahy's affairs, in terms of the history where she was involved with real estate and with various businesses of the parties during the relationship, and continued to do so up until separation; that is able to deal with banks on her own behalf or whatever. She, in those circumstances, can I suggest to you, appear to have any disability in reporting matters or making complaint in respect of what she now complains of in affidavits as to how she was abused. What I am suggesting to you is, she, throughout the time of the relationship, was able to hold her own and appear to operate as a normal person would in a relationship with its normal ups and

downs. That's not your understanding?

A. Well, I think clearly to make it simplistic or we can try and tease out the various factors that have contributed to this complex situation. I guess the most important thing in my mind is, where it came to doing things that involved strongly asserting herself against a man who she felt ambivalent about did she make a sensible decision, such as taking out an AVO; no, she didn't as far as I know. Did not make that sensible decision, despite being advised to do so. So, the concept of being in thrall to someone implies that when it comes to matters that have to do with either saying things or doing things that could harm the other, which logically she should have done on the basis of what she is telling us she didn't do it. Why not? To try and understand why not is part of the psychology of the whole situation. Why did she not do the sensible thing?

Q. And there is an answer to this. That is she has exaggerated or taken out of context matters that have happened in her relationship for financial gain?

A. Well, the things she reports to me that were said to her and done strike me as being beyond the normal, beyond the healthy. As I tried to allude to previously, she didn't seem to me to take the opportunity to grossly exaggerate things when she could have."

267 These responses seem to me to quite reasonable. It should not be forgotten that a lot of the abuse is said to be continuous, see the evidence in respect of the abusive language in 1993. Exhibit P in the proceedings is a collection of emails between the parties after separation. They contain many emails from the defendant using expletives and direct sexual references which made Dr Fischer blush. This is put forward to play down the effect of the language used by the plaintiff. However it seems to me that they are in a limited time frame and probably said in the protective environment of emails and distance between the parties.

268 But what of the contrary opinion of Dr Klug? His interview with the defendant was made difficult in that she continually referred him to her affidavit instead of answering his enquiries about any assaults. He described the results in these terms:

"On specific and persistent enquiry about the history of assaults in the relationship, despite describing difficulties in the relationship and verbal abuse from Mr. Cooper, she said he had never physically assaulted her. There is one episode when she said she was "dragged" when he grabbed her by the arm and marched her down a set of stairs. Specifically however, there were no other incidents of physical aggression, according to Ms. Mulcahy's history at interview. There is also no history of sexual violence. When I persisted further along this line of enquiry she simply stated that she found it very difficult to talk about the situation and could not give me an answer. She referred me to her affidavit."

269 It seems that Dr Klug has proceeded on the basis that although he has read the affidavit he places no great reliance on it in contrast to what little he elicited in the interview. For example there is no reference in his report to the threats to shoot or maim. There could be several reasons for her attitude. She may have wished to be non-cooperative or she may have had a real difficulty in reliving the events again in the telling process. I think the latter is more likely.

270 Having regard to these matters and the other matters appearing in the cross examination I prefer the evidence of Dr Fischer to that of Dr Klug on this aspect. There is an unresolved question as to when the disability commenced to have an effect upon her. Dr Fischer suggests that she experienced an insidious deterioration in her capacity to assert herself in the relationship and that the disability occurred "from the earliest time in the relationship". Dr Kraushaar expresses some views on its commencement date but I will not have regard to them for the reasons already expressed.

271 In my view the disability would have commenced after the events in 1993 and continued until a time shortly after the commencement of the proceedings in the Statement of Claim, August 2008, when she started to respond to the claim. The limitation period is therefore suspended, by reason of her disability, until this time. Applying the three-year limitation period, she brought the proceedings within time.

272 The updated table would appear as follows (updated areas in bold):

No.	Incident	Date of incident	Applicable legislation and limitation period	Date limitation period expired	Date at which action "brought"
1.	Argument (assault)	May 1993	s 18A	May 1996	27 August 2008
2.	Threat to kill and battery (assault and battery)	1995	s 18A	August 2011	27 August 2008
3.	Ordering the defendant out of the house (assault)	1996	s 18A	August 2011	27 August 2008
4.	The "beer incident" and threat to shoot (assault and battery)	December 2000	s 18A	August 2011	27 August 2008
5.	Threat to shoot (assault)	2007	s 50C	2010	27 August 2008

273 So far as the future is concerned Dr Fischer has opined that her present incapacity will not continue in the future if she has appropriate treatment. Dr Kraushaar who will no doubt be treating her puts the time for recovery at 12 to 24 months to recover from the trauma. I accept that it reasonable to expect her inability to work to cease within 2 years from judgement.

274 As to past economic loss Dr Fischer gives evidence, which I accept, that she was incapacitated from working as a shop assistant from the time of separation.

Damages

275 The defendant has satisfied me that five incidents of assault and/or battery occurred and that she has brought her action in relation to these within time. I am also satisfied that by reason of the assaults and batteries the defendant has suffered anxiety and depression.

276 Any award of damages in this matter is not subject to a statutory cap pursuant to the Civil Liability Act 2002 because it relates to an intentional tort (see s 3B of the Civil Liability and, for example, Zorom Enterprises v Zabow [2007] NSWCA 106).

Assessment of damages

277 The difficulty in assessing damages in a case involving numerous incidents resulting in psychiatric injury was described by Walmsley SC DCJ in Varmedja v Varmedja [2007] NSWDC 385 at [111]:

"A particular difficulty is the fact that there is a large number of separate torts alleged which collectively, on the psychiatric evidence, have cause the psychiatric injury. It may be wrong to attribute a part of the psychological injury to one or two of the earliest assault, although each of them may have made a contribution to the ultimate condition."

278 I note that in Varmedja v Varmedja the court was concerned with a far larger number of separate torts than have been proved in this case.

279 The defendant urged me to adopt a global approach to damages but I do not think this is appropriate.

Compensatory damages

280 The defendant submitted that the appropriate range for compensatory general damages is $175,000 to $225,000.

281 She also claims:

• Past out of pocket expenses of $19218.35
• Past economic loss of $112,011.03
• Future economic loss of $85,000, and
• Future out of pocket expenses of $83,125.

282 In support of this range, the defendant referred me to the case of Bova v Locke [2005] NSWCA 226 where there was an award of $225000 for general damages. The case is far removed from the present one and I do not find it helpful. It is trite to say that it all depends on the circumstances of the individual case. One can look at another case; say for example Jackson v Jackson (NSWSC, 26 March 1999, unreported) where I gave an award of $10,000 for an assault and battery in a domestic context. The physical circumstances of that battery were far worse than anything in the present case. However that case did not include threats to kill. Such threats had a real effect on the defendant and put her in fear of her life.

283 I have found that the defendant did not suffer from PTSD and that the disability was one in which there is a prognosis that will see the disability resolved. This is an important consideration and is where the case of Bova differs from the present.

284 Looking at the individual events, here I would fix general damages as follows:

• The threat to kill and battery in 1995 (assault and battery); $50,000
• One occasion of ordering the defendant out of the house in 1996 (assault); $2,000
• The beer incident and threat to shoot in December 2000 (assault and battery); $50,000
• Threat to shoot in 2007 (assault). $40,000

This is a total of $142,000

285 The defendant is entitled to past out of pocket expenses of $19,218.35

286 Past economic loss suggested in the defendant's submissions, namely, as a real estate property manager plus interest on half thereof with a 15% allowance for vicissitudes, namely, $112,011.03.

287 Future economic loss is for only 2 years with a 15% for vicissitudes a sum of $46,859.

288 Future out of pocket expenses were predicated on psychological treatment for 4 years, psychiatric treatment, specialist therapy and GP follow up for 10 years. Given the prognosis I have adopted, the psychological and specialist therapy figures need reducing but I would not reduce the others. I fix the amount of future out of pockets at $60,320.

Aggravated and exemplary damages

289 The defendant claimed aggravated and exemplary damages in addition to compensatory damages. She claimed that the appropriate figure for exemplary damages is in the order of $250,000.

290 In Marsh v Marsh (1993) 17 Fam LR 289 at 296 Coleman J described the relationship between these three categories of damages, as follows:

"The law is well settled that, where the conduct of the defendant is deliberate, in addition to damages awarded by way of compensation, the court may also include a sum in respect of any indignity sustained by the plaintiff, such damages being termed aggravated damages and, though theoretically compensatory, providing for a type of intangible loss not otherwise accounted for under a general damages award. In some circumstances the conduct of the defendant may be such that the court regards the award of compensatory damages, even including aggravated damages, as inadequate to punish the defendant or to deter him and others from acting similarly. If so, but only if the award of compensatory damages is inadequate for these purposes, the court may include in its award a sum by way of exemplary damages. (See the Law of Torts, John G Fleming, 7th ed, p 23)."

291 In State of New South Wales v Radford [2010] NSWCA 276, Sackville AJA (with whom Beazley and Macfarlan JJA agreed) summarised some important aspects of aggravated and exemplary damages:

"[91] In Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40 ; 117 CLR 118, at 129-130, Taylor J pointed out that there had been a degree of confusion between aggravated and exemplary damages. The former, Taylor J said, are:

given by way of compensation for injury to the plaintiff, though frequently intangible, resulting from the circumstances and manner of the defendant's wrongdoing. (Emphasis added.)

By contrast, exemplary damages are awarded:

to "punish and deter" the wrongdoer though, in many cases, the same set of circumstances might well justify either an award of exemplary or aggravated damages.

These passages were cited with approval by the High Court in New South Wales v Ibbett [2006] HCA 57 ; 229 CLR 638; (Ibbett (HCA), at 646-647 [31], [33]; see also Myer Stores Ltd v Soo [1991] 2 VR 597, at 602, per Murphy J.

[92] Aggravated damages, being compensatory in nature, are awarded for injury to the plaintiff's feelings caused by insult, humiliation and the like: Lamb v Cotogno [1987] HCA 47 ; 164 CLR 1, at 8, per curiam. Exemplary damages go beyond compensation and are designed to punish and to deter wrongdoers. Such awards also assuage any urge for revenge felt by victims and discourage self-help remedies (164 CLR, at 9).

[93] Spigelman CJ in New South Wales v Ibbett [2005] NSWCA 445 ; 65 NSWLR 168; (Ibbett (NSWCA), at [83], in a passage approved by the High Court on appeal, explained the difference between aggravated and exemplary damages:

in the case of aggravated damages the assessment is made from the point of view of the plaintiff and in the case of exemplary damages the focus is on the conduct of the defendant."

292 In XL Petroleum NSW Pty Ltd v Caltex Oil (Aust) Pty Ltd [1985] HCA 12; 155 CLR 448 at 472 Brennan J described the conduct that would warrant an award of exemplary damages as "conduct showing a conscious and contumelious disregard for the plaintiff's rights".

293 There are in my view reasons why there should be aggravated damages in this case. This is because, although there has been an award in respect of the individual assaults it can be seen from the medical evidence that the combined effect of the assaults extended over the whole of the relationship with a pervasive affect on the defendant. I fix aggravated damages at $100,000.

294 So far as exemplary damages are concerned I do not see a need for them. The present judgment will be a sufficient deterrent and the plaintiff has moved on to a different phase of his life. The events occurring between the plaintiff and the defendant reflect the inherent nature of the party's relationship and I do not see the plaintiff as having adopted his course of conduct with a specific intention of disregarding the defendant's rights. If anything it illustrates his personal limitations.

295 In the result the defendant is entitled to judgment on the cross-claim for assault of $480,408. I direct the parties to bring in short minutes.

**********

Amendments

01 May 2012 - The figure $441,000 replaced with $421,000.
Amended paragraphs: 23

01 May 2012 - Paragraph replaced: With the net assets of $1,380,782 less $487,000, being the plaintiff’s figure for the addback of Gaythorne, less $9,000 being the plaintiff’s figure for the Ace High hat stock plus add backs of $721,000 (from (1) and (7) above) this makes a pool of $1,605,782.
Amended paragraphs: 31

01 May 2012 - Paragraph replaced: 199 Giving due weight to the contributions of Gaythorne by the defendant, I think an appropriate division is 40% to the plaintiff and 60% to the defendant. The property of the parties, with add backs is $1,605,782. After division of this amount into these proportions and subtracting the applicable add backs, the plaintiff receives $342,313 ($642,313 less $300,000) and the defendant $542,469 ($963,469 less $421,000).
Amended paragraphs: 199

01 May 2012 - The property is "River Road" not "Royal Street". In the last line "defendant" replaces "plaintiff".
Amended paragraphs: 102

01 May 2012 - Paragraph replaced to become: Deducting these from each party’s entitlements referred to above gives the plaintiff $71,617 ($342,313 less $270,696) and the defendant $444,469 ($542,469 less $163,000) of the remaining assets of the parties.
Amended paragraphs: 201

01 May 2012 - Change values in table for Defendant's 50% interest in River Road to $67,500 and change value for Defendant's Total to $98,000.
Amended paragraphs: 200

01 May 2012 - The figure $441,000 replaced with $421,000.
Amended paragraphs: 28(1)

Decision last updated: 02 May 2012