Beuth v Blums [2005] ACTSC 44 (16 June 2005)

Last Updated: 26 July 2005

Kenrick Allan Beuth v Mina Blums [2005] ACTSC 44 (16 June 2005)

FAMILY LAW - domestic relationship - application for an order adjusting interests in property - claim for unpaid wages - contribution to plaintiff's business

Domestic Relationships Act 1994 (ACT) s 15

Byrne v Opuls (2002) 29 Fam LR 290 referred to

Commonwealth v Verwayen (1990) 170 CLR 394 cited

Crellin v Roberton [2004] ACTSC 92; (2004) 32 Fam LR 406 cited

Ferris v Winslade (1998) 22 Fam LR 725 referred to

Pigott v Walker [2002] ACTSC 40 cited

No SC 9 of 2001

Judge: Moore J

Supreme Court of the ACT

Date: 16 June 2005

IN THE SUPREME COURT OF THE ) No. SC 9 of 2001

)

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: KENRICK ALLAN BEUTH

Plaintiff

AND: MINA BLUMS

Defendant

ORDER

Judge: Moore J

Date: 16 June 2005

Place: Canberra

THE COURT ORDERS THAT:

1. The Plaintiff pay the Defendant the sum of $45 000 within 30 days.

2. The Plaintiff pay the Defendant's costs of, and incidental to, the hearing of 14 February 2005.

The nature of the proceedings and the issues

1. This judgment concerns and application brought under the Domestic Relationships Act 1994 (ACT) ("the Act") for property orders arising out of a domestic relationship. The matter has had an unusual history. It is necessary to refer that history to identify the issues that arise for determination.

2. The proceedings were commenced on 9 January 2001 by an application filed by solicitors then acting for Mr Kenrick Allan Beuth. The defendant was Ms Mina Blums. In the originating application, the nature of the action commenced by Mr Beuth was said to be "Domestic Relationships Act" and the relief claimed was identified as "Property Orders arising out of a domestic relationship". The interlocutory relief claimed was said to be "Relief is claimed as per notice of motion filed herewith". Also filed on 9 January 2001 was a notice of motion seeking orders that Ms Blums vacate a property at 3 Mudge Place, McKellar ("the McKellar property"), be restrained from re-entering the property and be restrained from removing goods from the property other than goods she owned. The last document filed on 9 January 2001 was a supporting affidavit of Mr Beuth.

3. On 18 January 2001 a memorandum of appearance was filed by solicitors then acting for Ms Blums. On 28 February 2001, an affidavit of Ms Blums was filed. She traversed a number of the factual allegations made by Mr Beuth in his affidavit and referred to her "cross-claim". The affidavit concluded with a paragraph requesting the Court to make orders sought by her. However, no application or pleading was filed by Ms Blums at this stage.

4. Miles CJ made consent orders in these proceedings on 2 March 2001. Those orders plainly did not dispose of the application because the notice of motion filed 9 January 2001 was adjourned to a motions list on 25 May 2001. Nonetheless a range of what appear to be interim orders were made concerning the financial and property arrangements between Mr Beuth and Ms Blums.

5. On 9 May 2001, a notice of change of solicitors was filed by new solicitors acting for Ms Blums. On 9 July 2001 the Registrar made a direction requiring Mr Beuth to file and serve a statement of claim by 10 September 2001 and the matter was relisted for further directions on the 17 September 2001. The direction of the Registrar was not complied with and on 17 September 2001 the matter was adjourned by consent to 24 September 2001. On that day an order for discovery was made. That appears not to have been complied with and, in the result, there were a succession of directions hearings and directions made which also appear not to have been complied with.

6. The next event of significance was the filing of a statement of claim by Mr Beuth on 19 June 2002. He was then unrepresented. He had filed a notice of intention to act in person on 21 May 2002. The statement of claim recounted matters concerning him, his business and his relationship with Ms Blums. It also recounted the history of the proceedings both in this Court and the Family Court (concerning the custody of their child) and sought the following relief:

1. That the application SC 9 of 2001 be closed.

2. The offer, derived duration (sic) mediation, of the sum of $25,000 less both amount already paid by Plaintiff ($3500) and Plaintiff's chattels/furniture ($10000 representing half the value) be accepted by the Defendant.

3. Following closure no further property claims remain between the parties.

4. That each party bear there (sic) own costs of the application.

7. On 1 July 2002 a direction was made that Ms Blums file a defence by 5 August 2002 and any cross-claim. That was done on 12 September 2002. Her defence concluded with a paragraph opposing the orders being made (that is, the orders proposed by Mr Beuth set out above) and sought orders as pleaded in what was described as a counter claim. I will adopt that description: see O 25 r 10 of the Supreme Court Rules. The counter claim took the form of 25 numbered paragraphs (paragraphs 46 to 70). Paragraphs 46 to 49 summarised the relationship between Mr Beuth and Ms Blums. Paragraphs 50 to 53 detailed (as an allegation) the work done by Ms Blums in assisting Mr Beuth conduct his computer software business. The name of the business was Procom EDP Pty Ltd ("Procom"). It was alleged that Mr Beuth had not paid Ms Blums any wage or salary for the work she had done. Paragraphs 54 to 62 detailed the domestic duties undertaken by Ms Blums and recounted that she had stopped conducting her own business in order to devote her time to Procom and was now undergoing a course of study. Paragraph 63 to 70 contained allegations of assault of Ms Blums by Mr Beuth on eight occasions between 1996 and 2000. The counter claim concluded with a claim for the following relief:

A. That the Plaintiff pay to the Defendant a sum that is just and equitable pursuant to Section 15 of the Domestic Relationships Act 1994.

B. That the plaintiff pay an amount or alternatively periodic amounts to the Defendant by way of maintenance to the Defendant pursuant to Section 19 of the Domestic Relationships Act 1994.

C. Further or in the alternative to A. above, that the Plaintiff pay to the Defendant such sum as represents wages or salary upaid to the Defendant in relation to her employment in the computer software business conducted by the Plaintiff.

D. That the Plaintiff pay to the Defendant damages in respect of the injuries suffered by the Defendant in the assaults pleaded in the Counter Claim.

E. That the Plaintiff pay the Defendants costs of these proceedings.

8. On 30 September 2002, a direction was given that Mr Beuth file a defence to the counter claim within seven days and that both parties file and serve affidavits of discovery within 28 days. Ms Blums complied with the direction concerning discovery though Mr Beuth did not. On 2 December 2002 a solicitor acting on behalf of Mr Beuth filed a notice of appointment of solicitor. On 18 November 2002 directions were given concerning the provision of particulars by Ms Blums. On 24 February 2003 a further direction was given that Mr Beuth file a reply and a defence to the counter claim within 21 days. That was done on 4 April 2003. The defence to the counter claim denied that Mr Beuth and Ms Blums were in a de facto relationship from 1995 until November 2000, denied that they lived in the Australian Capital Territory for the period of any such relationship but admitted they had a child. The defence denied that the applicant performed any work, contributed to or was employed by Procom. It also denied what was said to be "the inference that [Ms Blums] performed all the domestic duties" in paragraph 54 of the counter claim. It admitted that Ms Blums cared for their child (but not exclusively) and that Ms Blums had had a business, but denied she closed her business to devote her time to Procom. Generally the allegations of assault were denied. The defence concluded by seeking an order that the counter claim be dismissed.

9. On 22 April 2003 a direction was given that the parties file financial statements. This was done by Ms Blums on 23 May 2003 and Mr Beuth on 12 June 2003. On 16 June 2003 a certificate of readiness, signed by solicitors acting for Mr Beuth and solicitors acting for the former defendants, was filed. The parties certified that the matter was ready for trial, the pleadings had closed and all particulars requested had been furnished. In relation to the issues to be determined at trial, the certificate recorded that the issues were, on Mr Beuth's part "DOMESTIC RELATIONSHIP PROPERTY SETTLEMENT" and, on Ms Blums' part "Property settlement, spouse maintenance, damages for injuries". The matter was placed in a court list to be allocated a hearing date on 29 July 2003, however the matter was removed from that list on 16 June 2003. An application was filed on 27 October 2003 by Ms Blums' solicitors and sought an order that that they cease to act. An order to that effect was made that day.

10. At a directions hearing on 11 December 2003, directions were made requiring affidavit evidence to be filed in February 2004 (by Mr Beuth) and March 2004 (by Ms Blums). At the next directions hearing on 30 June 2004 when both parties appeared (Mr Beuth represented by his solicitor and Ms Blums representing herself), further directions were made requiring affidavit evidence and updated financial statements to be filed in July 2004 (by Mr Beuth) and August 2004 (by Ms Blums). At a final directions hearing on 25 August 2004, a direction was made requiring a valuation of the McKellar property to be filed within 28 days and the matter was fixed hearing on 30 November 2004.

11. At the hearing on 30 November 2004, Ms Blums represented herself. It became apparent fairly quickly that Mr Beuth was not pursuing his application and that, in substance, the case to be heard was Ms Blums' counter claim. At the commencement of the hearing, counsel for Mr Beuth made what was, in effect, an open offer. It was that Ms Blums be paid $25 000 in satisfaction of the counter claim but that this amount be reduced by the $3 500 paid to her pursuant to orders made by Miles CJ on 2 March 2001 and $10 000 representing half the value of the chattels and furniture at the McKellar property. The open offer was $11 500 net to be paid to Ms Blums.

12. At an early stage in the hearing, I endeavoured to ascertain the nature of the case Ms Blums wished to maintain. It became comparatively clear that what she sought was an amount reflecting the contribution she made to Procom by, amongst other things, acting as a driver, answering phones and from time to time representing Procom in meetings or conventions. English is not Ms Blums' first language, and as a result there were, on occasions, problems with communication. However I am satisfied that Ms Blums understood the exchanges about the nature of her case. How she put it is exemplified from the following exchanges on the morning of the hearing on 30 November 2004 before she commenced her evidence:

HIS HONOUR: At the moment I'm just trying to understand your position because I've been told what Mr Beuth's position is. Okay?

MS BLUMS: Yes.

HIS HONOUR: And what I'd like to focus on at the moment is what it is you're claiming and just very briefly the basis upon which you say you're entitled to whatever it is you're claiming.

MS BLUMS: Yes. Now, $20 per hour for 10 hours each day and for the 5½ years because I was still answer the phone. 24 hours answer the phone to collecting his client until July of the year 2000.

HIS HONOUR: So that's $20 an hour for 10 hours.

MS BLUMS: Yes.

HIS HONOUR: For how many days a week?

MS BLUMS: And I was working full 7 days. Every day. I didn't have no holiday.

HIS HONOUR: I'm just trying to understand what it is. It's $20 an hour for 10 hours for 7 days?

MS BLUMS: Yes.

HIS HONOUR: So that's 1,400 - - -

MS BLUMS: For 5½ years is calculated $401,000 I calculate.

HIS HONOUR: And anything else?

MS BLUMS: And I have physical damage that I'm still on the medication and I had Vioxx, as you know, the Vioxx was causing problems which I didn't know that - - -

HIS HONOUR: Just say that again, you had?

MS BLUMS: I got physical damaged and he took all evidence of the X-rays with his car in the year 2003. But Dr Maiden has all records also. I already filed the document. I should have a copy of it here if you like to see. I got a, you know - - -

HIS HONOUR: Well, can we just come back to what you're claiming. And just in terms of the physical injuries what is it you're claiming for that?

MS BLUMS: Yes, I haven't sort of physical injured harm because I'm still going to see doctor tomorrow because I got problem with my - I still got problem with my arm and my back and my neck.

MR WARD: Your Honour, could I interject. I'm trying not to interject as often as I can, but I do not understand that Ms Blums is pressing some form of civil assault injury claim here.

HIS HONOUR: Well, I don't know, Mr Ward.

MR WARD: No.

HIS HONOUR: I can but ask the questions.

MR WARD: Yes.

MS BLUMS: I have here letter from - - -

MR WARD: That would be a different, a very different case.

MS BLUMS: I will bring different issue next time so that - - -

HIS HONOUR: Anything else? We've talked about the $20 an hour for 10 hours for 7 days a week for 5½ years.

MS BLUMS: Yes.

HIS HONOUR: And you're talking about physical injuries, are you?

MS BLUMS: Yes, but the physical injury I will bring the later.

HIS HONOUR: So I put that to one side, do I?

MS BLUMS: Yes.

HIS HONOUR: Anything else?

MS BLUMS: That will do.

HIS HONOUR: No, anything else? So it's the wages you're claiming, is it?

MS BLUMS: Yes

(emphasis added)

13. A little later there was an exchange to similar effect:

HIS HONOUR: Thank you.

Ms Blums, I think we've reached a point where one of two things will happen, either you present your case or the matter is adjourned. Now, I'm not going to consider whether the matter should be adjourned unless you raise that question. Otherwise, I'll simply hear your case and, as I say, it may require you giving some evidence. Do you want to proceed now?

MS BLUMS: Yes. Pardon me?

HIS HONOUR: Do you want to proceed now?

MS BLUMS: Yes.

HIS HONOUR: Okay. Well, you've explained to me the claim that you make in relation to the work you did, that is the $20 an hour for 10 hours for 7 days for 5½ years.

MS BLUMS: Yes.

HIS HONOUR: Is that the extent of your claim?

MS BLUMS: Yes.

HIS HONOUR: So there's no issues about the house, or anything like that?

MS BLUMS: No.

HIS HONOUR: So it's just for the work you did?

MS BLUMS: Yes. Even you know I - because I will be just to have people to one issue, you know, in the - because I don't know how to handle, you know, because I thought - what I try to say David Ridge he was, you know, dealing with these issues and at the moment got lot of things on my life, you know on the - and I couldn't really fully concentration that I really have a look what I have a look what I have to do with - I just want to - so I say okay, no matter what, you know, he - how much I put effort in relationship I just want to get out. So I just say okay, $20 per hour. Now, I've been working for sometimes 18 hours, 10 hours so - - -

HIS HONOUR: Ms Blums, I don't want you to go into matters of detail again.

MS BLUMS: Yes.

HIS HONOUR: I'm just trying to understand what it is you're claiming and also I want to be satisfied that you want to proceed with your case today. Now, I understand that you do want to proceed with your case today and that you'll be representing yourself, is that correct?

MS BLUMS: Yes. Yes.

HIS HONOUR: And the second thing I understand to be the position is that your case is really based on the work that you did maintaining the business of Mr Beuth during the period of your relationship.

MS BLUMS: Yes.

HIS HONOUR: Is that right?

MS BLUMS: Yes.

HIS HONOUR: And that's what you want compensation for?

MS BLUMS: Yes.

HIS HONOUR: Under the Domestic Relationship Act, is that right?

MS BLUMS: Yes. Yes.

(emphasis added)

14. The hearing did not conclude on 30 November 2004 (and Ms Blums was being cross-examined when the matter adjourned that day), and resumed on 14 February 2005. In the meantime, Ms Blums obtained legal representation following the grant of legal aid. On 11 February 2005, Ms Blums' solicitors wrote to Mr Beuth's solicitors. The letter included the following:

We note that the relief our client seeks is substantially that as set out at the foot of her Defence and Counter-Claim dated 12 September 2002. We take it, from the indications in the transcript to date, that the matter will proceed on Monday 14 February 2005 on the basis that, as His Honour has indicated, the counter-claim is being heard and we are at the stage that Counsel for the Plaintiff is cross-examining Ms Blums in respect of her evidence in chief given before His Honour earlier.

15. Presumably because of this communication, counsel for Mr Beuth resumed the cross-examination with questions about the nature of Ms Blums' claim which included the following exchange:

MR WARD: Ms Blums?---Yes.

There's one matter I should clarify first. It's my understanding that you say that you relationship with my client ended in the year 2000, is that correct?---No. In that year of 2000, no.

In what year do you say your relationship ended?---Year 2001.

In 2001?---In the beginning of the year 2001.

At what point - I'm sorry I withdraw that. You agree, don't you, that you resided with my client at the house at McKellar during the relationship?---(No audible reply)

Thank you. And it's your case, as I understood your evidence on the last day we were here, that you say that you worked for my client's company known as Procom - - -?---Yes.

- - - during the relationship?---Yes.

And that you are owed wages - - -?---Yes

- - - for that work?---Yes.

And on the last occasion I asked you, on more than one occasion, whether your claim was for anything other than unpaid wages and you said no, it was only for unpaid wages. Do you remember giving that

answer?---Yes.

And that is still the position, is it?---Yes.

Thank you?---And also the wrecked sail boat. I don't know about those ...(indistinct)... so I, other, I hired my barrister and a solicitor so I will hand it to on the, my barrister, he will have a more knowledge and wisdom that I have so letting him to handle all.

Well, Ms Blums I'm sure Mr Hassall is a very experienced lawyer who knows the law well. But you know, don't you, what it is that you want from this court?---Yes.

And you know, don't you, that what you want is money, being money that you say you are owed as unpaid wages?---And the my - for my effort.

And for your effort?---Yes.

In relation to what you say is the work that you did?---Yes.

For the company Procom?---Yes.

Thank you. And the basis of that claim that you make is, you say that your time is worth $20 per hour?---Yes.

And that you devoted yourself to the company ten hours a day?---Yes.

Seven days a week?---Yes.

And that's the basis upon which you put the claim to the court?---Yes, correct.

(Emphasis added)

16. Counsel appearing for Ms Blums commenced her re-examination by referring to the document constituting the pleaded counter claim, drawing attention to paragraph 53 concerning non-payment of wages and getting her to agree that document had been filed on her behalf. Her counsel then, in effect, explained that he had asked those questions because counsel for Mr Beuth had, during cross-examination on the first day of hearing, suggested to Ms Blums that the first occasion on which she raised this issue of unpaid wages was in the document prepared and filed by her on 23 August 2004 which was headed "DEFENCE" but was more akin to a witness statement than a pleading.

17. Counsel for Ms Blums then commenced to ask Ms Blums questions about her contribution to the McKellar property. This elicited an objection from counsel for Mr Beuth who pointed out that her case had been, to that point, confined to a claim for compensation for work done for Procom. Shortly thereafter counsel for Ms Blums indicated that the counter claim would be maintained as it had been pleaded and not confined as it had apparently been, on the first day of hearing, to a claim for wages or compensation for work done. Re-examination continued on the basis that the matter might be determined on the wider case as pleaded in the cross claim.

18. It has been necessary to detail this aspect of the matter to address a submission made by counsel for Mr Beuth in two written submissions filed after the second day of hearing. It is convenient to resolve the question now because it bears upon the scope of the fact finding. The first submission, responding to a written submission by counsel for Ms Blums, noted that Ms Blums' claim had been limited to payment or compensation for work done for Procom and submitted that she was estopped from pursuing a wider claim or alternatively her evidence constituted an admission as to the nature of her claim. I invited further submissions on the legal and factual foundation for this submission.

19. The further written submissions of counsel for Mr Beuth recounted some of the matters referred to above then submitted that Ms Blums had expressly abandoned the case as earlier pleaded, her evidence involved an admission against interest in the sense that she had no complaint other than in relation to unpaid wages and she was estopped from putting her claim on a broader basis. This submission was repeated later in the written submission but was said to be an express abandonment of other claims, an express waiver of other claims and an express election to pursue the more limited claim for unpaid wages. Counsel for Mr Beuth did not refer to applicable principles or authorities to support these various combinations and permutations. What was submitted was that if Ms Blums had not abandoned her alternative factual allegations:

(a) The cross-examination of Ms Blums would have been conducted entirely differently

(b) the trial would almost certainly have extended well beyond the two hearing days actually occupied; and

(c) additional oral evidence from Mr Beuth as to the financial and non-financial contributions would have been led.

20. I accept that Ms Blums did appear to confine her case on the first day of the hearing to compensation or payment for work done for Procom. That may have meant one of two things. It may possibly have meant that Ms Blums was not pursuing a claim under either s 15 or s 19 of the Act (as identified in paragraphs A and B of the relief referred to at [7] above) and was simply pursuing a contractual claim or a claim based on quantum meruit which may have been what the pleader had in mind in paragraphs C of the relief sought.

21. Alternatively, what Ms Blums was saying may have been intended to confine her claim under s 15 of the Act. Such a limited claim might be viewed as conformable with the scheme reflected in s 15. That section provides:

(1) On application by a party to a domestic relationship, a court may make an order adjusting the interests in the property of either or both of the parties that seems just and equitable to it having regard to:

(a) the nature and duration of the relationship; and

(b) the financial or non-financial contributions made directly or indirectly by or on behalf of either or both of the parties to the acquisition, conservation or improvement of any of the property or financial resources of either or both of them; and

(c) the contributions (including any in the capacity of homemaker or parent) made by either of the parties to the welfare of the other or any child of the parties; and

(d) the matters referred to in section 19 (2), as far as they are relevant; and

(e) such other matters (if any) as the court considers relevant.

(2) A court may make an order under subsection (1) whether or not it has declared the title or rights of a party in respect of the property.

A claim limited to compensation or wages for work done might be seen as inviting an adjustment of property rights by focusing attention substantially or solely on, in this case, the direct non-financial contribution made by Ms Blums to the financial resources of Mr Beuth.

22. Whatever may have been meant by Ms Blums, it is relatively clear she was not abandoning a claim under the Act and it is likely that what she said should be understood in the way discussed in the preceding paragraph. But even approached that way, the question arises whether her counter claim should be assessed only on that basis given the course of the proceedings as a whole.

23. By the conclusion of the hearing of the matter, it was clear that counsel for Ms Blums was seeking to put her claim on as wide a basis as the pleadings permitted. Whether such a case can be made good on the evidence is a different question. The pleadings were never amended. The certificate of readiness prepared by the solicitors in June 2003 makes it fairly clear that the parties did not see the case as confined. An affidavit of Mr Beuth of 2 July 2004 addressed a range of factual issues about his financial circumstances and his and Ms Blums' contribution (financial and non-financial) during the relationship. Ms Blums filed another document (similar to that filed in August 2004 and referred to in [16] above) entitled "DEFENCE" in which she referred to the value of the McKellar Place and spoke of the "wages and property settlement" case in the Supreme Court. I refer to these matters because there is nothing to suggest that before Ms Blums made the statement she did at the hearing on 30 November 2004, Mr Beuth and his legal advisers would have understood that the counter claim which would be pursued at the hearing would be anything other than the claim as pleaded.

24. Against that background, it is necessary to consider whether the wife is bound by the statement she made on the first day of hearing and can be confined to the case she then articulated. There are a number of legal bases on which such a conclusion might rest. The first is that Ms Blums renounced her claim except to the extent that the claim was based on the work she did for Procom. This might be characterised as a waiver: see Commonwealth v Verwayen (1990) 170 CLR 394 at 473 per Toohey J and at 485 per Gaudron J, from which the waiving party cannot retreat. The approach of Toohey J and Gaudron J, who formed part of the majority, did not reflect the approach of the other members of majority and there must be some doubt whether waiver of this type reflects an established principle of the common law of Australia.

25. Indeed the trend of recent authority is against a legal notion or principle of waiver apart from estoppel (which would involve consideration of the consequences of the conduct) or election (where the asserted rights were inconsistent): see Meagher, Gummow and Lehane: Equity: Doctrines and Remedies, fourth edition at 17-140. In any event, as Toohey J noted at 474, waiver only arises if the conduct is unequivocal and suggests it would be difficult to establish. In the present case, while Ms Blums did state on several occasions her claim was limited, there were several points (in the passages in bold above in [12], [13] and [15]) where statements were made which indicated the claim was not or might not be limited.

26. A firmer basis for considering whether Ms Blums should be bound by her statements is estoppel. That is, by her conduct Ms Blums limited her case and Mr Beuth acted to his detriment on what she said by conducting his defence on the footing that the case was so confined. The detriment was identified by counsel for Mr Beuth in the submission set out at [19] above.

27. The first, cross-examination would have been conducted entirely differently, and the third, additional oral evidence from Mr Beuth as to his financial and non-financial contributions would have been led, may be conveniently dealt with together. I do not accept that, properly understood, Mr Beuth suffered a detriment in these respects. The reasons for this conclusion are as follows. The first is that both involve a bare assertion that the case would have been conducted differently. There is nothing to suggest that counsel for Mr Beuth would not have prepared the case, prior to Ms Blums making the statement she did at the commencement of the hearing on 30 November 2004, on the basis that he might have to cross-examine Ms Blums about any relevant evidence she gave concerning all issues raised on the pleadings. The evidentiary case of Ms Blums was confined to affidavits filed before the hearing and the oral evidence and she gave. The evidence she gave substantially addressed the work she said she did in relation to Mr Beuth's business though she did give evidence more generally about her contribution during the relationship. Evidence of this latter type was admitted without objection. Thus, in so far as cross-examination would have been on her evidentiary case on a footing wider than a claim focused on her work for Mr Beuth's business, counsel could have tested the evidence and indeed did so. In addition, the cross-examination had not concluded at the end of the first day of the hearing and it was in the intervening period before the second day that the solicitors then acting for Ms Blums wrote indicating that the case would be the pleaded case. It is true that when cross-examination resumed on the second day, counsel for Mr Beuth asked Ms Blums some questions in order to establish the extent of her claim. But it was clear her answers had to be evaluated having regard to her qualification about leaving it to her lawyers and the earlier letter from her lawyers. In my opinion, counsel for Mr Beuth made a forensic choice not to confront directly the letter and secure a ruling about the scope of the case but rather was prepared to continue and conclude his cross-examination while those issues remained unresolved.

28. That forensic choice extended to determining what evidence would be led in chief from Mr Beuth. Evidence from Mr Beuth was led without seeking a ruling on the scope of Ms Blums' case (though knowing the nature of the evidentiary case that she had, by then, established). The issue of the scope of Ms Blums' case crystallised at the commencement of re-examination of Ms Blums by her counsel. At that point, counsel for Ms Blums asked her some questions about her contributions to the McKellar property (an issue about which Ms Blums had been cross-examined). Counsel for Mr Beuth initially objected but then accepted there could be re-examination on that topic though he foreshadowed an objection if the case was put on the basis of contributions generally, as opposed to contributions by way of work supporting Mr Beuth's business. Counsel for Ms Blums pointed to the earlier letter from his instructing solicitors and indicated the case would be put as pleaded. I indicated that I would allow the questions though might have to deal later with the nature of the wife's case. At no point, and in particular before Mr Beuth gave evidence, was I invited by counsel for Mr Beuth to do so. Moreover the evidence in chief led from Mr Beuth (both in the affidavits read and the oral evidence) went well beyond factual issues concerning the contribution of Ms Blums to Mr Beuth's business. It did not appear to me that the evidence was led on the footing that Ms Blums was or should be confined to the case she had articulated at several points concerning her contribution to Mr Beuth's business. I am not satisfied that Mr Beuth suffered a detriment, in the way his case was conducted, by the statements made by Ms Blums about the nature of her case.

29. As to the suggestion that there was, somehow, a detriment concerning how long the case took, I do not see how that arises. At the commencement of the hearing on the first day, the case was going to take as long as necessary (though I note that estimates had earlier been given by Mr Beuth's solicitors that the case would take 1-2 days). While it was clear from observations made by his counsel, Mr Beuth was anxious for the case to conclude as quickly as possible (presumably for reasons including the cost of the litigation), the statements of the wife about the scope of the case, at best, simply offered the prospect that the case would conclude sooner. I do not see how it can be said that he suffered a detriment in any relevant sense concerning the length of the hearing as a result of the statements made by Ms Blums about the scope of the case.

The evidence

30. I turn now to consider the evidence led by the parties and make findings of fact. To the extent that the following reflects a narrative of events, it constitutes findings of fact I make on the evidence. In relation to relevant evidence where there is a real divergence in the accounts between the parties, I will endeavour to explain why I prefer one version to the other. However I should commence by indicating what my general impression was of the two witnesses (Ms Blums and Mr Beuth).

31. As I noted earlier, English is not the first language of Ms Blums and due allowance has to be made for that when assessing her evidence. Nonetheless, I gained the impression that some of her evidence was exaggerated, certainly as it related to the extent to which she was involved in some tasks assisting Mr Beuth in his business. Nor was her evidence given in an entirely dispassionate way and it was, in some respects, a coloured account. In a sense, this is understandable given the nature of the proceedings. But overall I do not think she was intending to give a deliberately false account, notwithstanding that some of the matters she gave evidence about reflected adversely on her character. On two matters about which she was cross-examined to test her credit, whether Mr Beuth had a particular type of car and whether he had other children, Ms Blums gave evidence which I do not accept. However that evidence was not, in my opinion, deliberately false but rather the repetition of a mistaken belief adopted earlier by Ms Blums.

32. On the other hand, Mr Beuth gave his evidence in what appeared to be a considered manner. It was not, in any obvious way, embellished or exaggerated. However on some critical issues I entertain real doubt as to whether his account was an honest one. Foremost amongst these was his evidence concerning business cards of Ms Blums relating to his business. I will discuss this matter in more detail below. I was left with the impression that his evidence was not reliable. Except where I indicate otherwise, I accept the evidence of Ms Blums where it conflicts with the evidence of Mr Beuth. Some of the matters of fact referred to below arise from admissions made in the pleadings.

An overview of the relationship

33. The parties met in May 1995. At that time Ms Blums had a business operating a dress and gift shop in Manuka. Mr Beuth was then 39 and Ms Blums 31. Mr Beuth was (and remained so throughout the relationship) the sole proprietor, for practical purposes, of Procom, a business providing computer installations and computer support services to the livestock industry. In May 1995, Mr Beuth lived in Melbourne but he travelled on business in Victoria, New South Wales, Queensland and the Canberra region.

34. Ms Blums then had two children. The first, Christopher, had been born on 28 December 1983 and was then living in Korea and the second, Aivars, had been born on 20 February 1991 and was then living with Ms Blums in rented government premises in Nuyt Street, Red Hill. Ms Blums' business ceased trading in September 1995. In March 1996, Ms Blums (and Aivars) moved to rented premises at 8 Hartog Street Griffith. Ms Blums continued to maintain this rental property and was still renting it at the time of the hearing.

35. There was a divergence in the evidence of Mr Beuth and Ms Blums about how quickly the relationship developed and the extent to which Ms Blums assisted Mr Beuth in his business in 1996 and the first part of 1997. Ms Blums' account, which I accept, was that shortly after they met they started seeing each other on a weekly basis and Mr Beuth travelled to Canberra and stayed overnight for about four nights a week and was otherwise in Melbourne or travelling interstate on business. Ms Blums travelled with Mr Beuth on his business trips during 1996 and was away for up to two weeks at a time. This came about because Mr Beuth was an epileptic, could not drive at night and, in any event, was at risk of losing his Victorian drivers license (which he lost) and asked Ms Blums to accompany him on business trips and do the driving. The question of driving is discussed in more detail below. On at least five occasions Mr Beuth sent Ms Blums an aeroplane ticket to travel to Melbourne to visit him for a period of two days. Their relationship continued this way for approximately one year.

36. In about March 1997, Ms Blums was told by a doctor that she was pregnant. In mid 1997, Mr Beuth purchased in his name and subject to finance, the McKellar property. Settlement took place in July 1997. In July 1997 the parties commenced living together at the McKellar property on a full time basis. Ms Blums gave birth to their child, Kenrick Samuel Beuth, on 18 August 1997. From July 1997 to early 2001, Ms Blums and her sons Aivars and Kenrick, spent most of their time residing at the McKellar property. Ms Blums said, and I accept, the McKellar property was purchased to be "our home".

37. The parties separated in November 2000 but continued to have a sexual relationship until probably February 2001. Ms Blums and her children moved back to the Griffith property in late 2000 or early 2001. In November 2000 Mr Beuth was charged with assaulting Ms Blums. He was convicted in, it appears, February 2001 and was subsequently placed on a one-year good behaviour bond.

Ms Blums' business

38. When the parties met, Ms Blums operated a business trading as "Mina's Gallery" at Manuka Court, selling clothing, including items designed by Ms Blums, accessories, gifts and artworks. She had run her own business since she was 18 years, then in South Korea. Ms Blums' evidence, which I accept, was that in September 1995 she closed her shop and commenced working for Mr Beuth because he needed a driver and she wanted to help Mr Beuth, as they were trying to build a relationship together.

The nature of Mr Beuth's business

39. When the parties met, Mr Beuth was operating a business installing computers and providing support services to the livestock industry. He ran the business alone and it involved him working with abattoirs and meat wholesalers. The work involved frequently dealing with and visiting clients and Mr Beuth was away from his base frequently. His work depended on computer knowledge and the programs he developed. The income of Procom came from initial hardware and software installation and commissioning, and ongoing hardware and software support. His involvement with some clients was close to the role of accountant/computer manager, visiting monthly their site of operation. The business had clients along the eastern seaboard. While initially based in Melbourne, Mr Beuth operated the business from the McKellar property in Canberra but maintained, and continues to maintain, an office in Melbourne.

Ms Blums' involvement with Mr Beuth's business

40. Ms Blums did work associated with the conduct of Mr Beuth's business from September 1995 to November 2000 and was not paid for what she did. I am satisfied her duties included general secretarial work and some bookkeeping, notwithstanding an accountant provided services to Procom. I am satisfied she was also involved in some liaising with clients, attended trade conventions and provided personal assistance to Mr Beuth. Her work also included driving the husband and travelling interstate with him to visit clients.

41. Mr Beuth put in issue much of Ms Blums' account of the work she claimed to have done. At one point, he suggested the only work Ms Blums did for the business was to answer the telephone and tell clients where he was and how to contact him. Support for his account of the limited nature of the work done by Ms Blums was exemplified by the following letter from Bindaree Beef Pty Limited (Director, Sales and Marketing) dated 9 February 2005 in which the following was said:

Ken Beuth, as manager of Procom EDP Consultants Pty Limited, has provided a computer service to our company for over 15 years, firstly at our Casino and Lismore sites and more recently our plant facilities at Inverell, Orange and Murgon.

From late 1995 to mid 1998, Ken Beuth occasionally attended our sites with his companion, Mina Blums. We were introduced to her, however at no stage did Mina ever provide a professional service to Bindaree Beef, her role was strictly as Ken's companion.

If I can be of further assistance please contact me on (telephone number provided).

42. However to different effect was a letter of 2 March 2001 from the Managing Director of Westgate Cold Stores, North Altona, Victoria:

Westgate Cold Stores can confirm that Ms Mina Blums did assist Mr Ken Beuth of Procom to install the warehousing system at our cold store.

43. The involvement of Ms Blums in the provision of services to Westgate Cold Stores by Procom was the subject of a good deal evidence. Ms Blums said she visited Westgate Cold Stores premises more than twice. She said that while she had not seen any contract between Procom and Westgate Cold Stores, Mr Beuth had told her it was worth $500 000 and concerned stock inventory and the payroll systems. She said that when Westgate Cold Stores sought to cancel the contract with ProCom, because Mr Beuth did not attend the premises and install computer programs on time, she persuaded her former husband to go to the company's premises and meet with the staff. There was a meeting, and in attendance were Mr Beuth, the chairman, the manager of inventory and the accountant, another person and herself. During that meeting, she intervened, apologised for her former husband's past conduct and promised he would be on time with his work in the future. Westgate Cold Stores decided not to cancel the contract with Procom.

44. Mr Beuth said Ms Blums was introduced to business associates but did not participate in any meetings. Mr Beuth said there was a contract for support between Procom and Westgate Cold Stores, which involved Procom providing support to the company when a problem arose. He said Ms Blums had not provided any assistance in Procom's contractual relations with Westgate Cold Stores. He denied that Ms Blums attended meetings with Westgate Cold Stores. However he did accept that she had met Westgate Cold Stores officials, but did not discuss with them anything concerning the business. The letter from Westgate Cold Stores referred to above tends to confirm Ms Blums' account, which I accept, and tends to undermine Mr Beuth's account, which I reject.

45. Another matter addressed at length in the evidence, was the creation and use of business cards and Ms Blums' role when attending conferences. These matters were related. Ms Blums gave evidence that she had trained in painting for about 13 years (up to 1980), had her own art gallery and gift shop in South Korea and had made stained glass and papier-mâché. She said she designed the company logo and created the globe for the letter 'o' (in a graphic representation of the business name "Procom") with pen and paper. She denied that a printing company had sent the logo to her. A letter of 9 October 2001 from Creative Agents Pty Ltd t/as Art Direction Graphic Design said.

This is a letter to verify that the artwork for PROCOM's company logo and business card were produced by myself at Art Direction Graphic Design in mid 1996. The artwork was commissioned by Kenrick Beuth and Mina Blums at my then office at 134 Gladestone Street Fyshwick.

As I recall, Kenrick and Mina had already worked out the design on paper, from which I produced the finished artwork on a computer which was then forwarded to a printer. Both Mina and Ken were present at every meeting I had with them.

We will have records of any invoices to PROCOM and the actual digital artwork on backup archive (see attached artwork 28 August 1996).

I hope this helps to establish the facts to do with your matter.

(emphasis added)

This letter tends to confirm Ms Blums' evidence, which I accept.

46. Ms Blums gave evidence she also designed the Procom Christmas card printed in 1997 and business card in 1996. Between 250 and 500 business cards were printed. She said she used these cards while attending conventions. She said that on one occasion, Mr Beuth "forced" her not to use her surname of Blums and instead to use the surname of Beuth when she was introduced to people and for this reason a business card contains the name "Mina Beuth".

47. One of the business cards in evidence bears the name of Ms Blums above the words "International Sales". The mobile telephone number on that card under Ms Blums' name is also on two business cards bearing his name as the telephone number available "24 hrs". It also happens to be a telephone number noted on what appeared to be Ciril's Printers note paper, next to the name "Mina", indicating that Ms Blums could be contacted on that number. Mr Beuth denied that Ms Blums would have been reached on the telephone number recorded under Ms Blums' name which also appeared on his business cards as a 24 hour telephone number.

48. Copies of business cards marked as "Approved: Ken Beuth 26/8/96" (for printing) contained the words "Computer Technology for the Australian & New Zealand Meat Industry" or "Computer Technology for Australia and the Asia Pacific". On a business card bearing the words "Computer Technology for Australia and the Asia Pacific" the words "Sales Consultant" appeared under Ms Blums' name.

49. Ms Blums said she attended conventions once a year since 1995 and five in total. The first was in Mudgee, NSW between October and November 1995. She said these conventions were a "very big time" for Procom and that she was a sales consultant for Procom at these conventions. She said she promoted Procom by talking to people about the business, selling raffle tickets and, in 2000, donating blouses to the convention's charity activities. She also said she came up with the idea of advertising at the convention through paying money to a band. In evidence was a letter of 30 March 2001 from the Executive Assistant of the Country Meatworks Association of New South Wales:

In my position as Executive Assistant of the Country Meatworks Association of New South Wales, I have known Mina Beuth since 1995, when she first attended our annual Country Meatworks Convention in Mudgee NSW as a registered delegate of Procom EDP Consultants Pty Ltd.

The Country Meatworks Association holds an annual convention attended by approximately 350 meat industry delegates from all Australian States and overseas.

Mina has attended each of our subsequent annual conventions as a member of the Procom team, (Procom being one of our convention sponsors) and she has on occasions lent technical support during our computer presentations.

I have found Mina to be a most reliable and diligent person during my dealings with the Company, Procom EDP Consultants, with a warm and generous disposition. Mina has also made substantial personal donations to the charities we support during our conventions.

This letter is consistent with Ms Blums' account of her involvement at the annual conventions.

50. Mr Beuth agreed there were business cards naming Ms Blums, but denied the words "Sales Consultant", "Office Manager" and "International Sales" which appeared on copies of those business cards were consistent with Ms Blums' involvement in the company. Mr Beuth denied she acted as a sales consultant for Procom, as he did all the work. Mr Beuth said that in August 1995 (he later said the year was 1997) he was running short of business cards, needing more for an annual convention in October of that year. He decided to get more printed with new artwork. He agreed he authorised the printing of business cards with Ms Blums' name printed on them so that she could attend conventions with him and give cards to clients and impress people by making people believe Procom was bigger than it actually was. He said that business cards containing Ms Blums' name were only approved so that she could meet other wives. He also said no representations were made that the wife was part of the business because those cards were not distributed. Mr Beuth was unsure as to whether a business card bearing the name "Mina Beuth" had been printed.

51. In my opinion this evidence points to Ms Blums being given a significant role representing the interests of Procom at conventions and probably representing the interests of Procom more generally. It also points to Ms Blums being accessible, for the purposes of Procom's business, on a mobile phone 24 hours a day. Mr Beuth's suggestion that the cards were intended to impress other wives is, in my opinion, disingenuous. It may be that one objective of the cards, incorporating the name and title of Ms Blums, was to create the impression that Procom was bigger than it, in fact, was. However that does not diminish the import of Ms Blums' evidence, which I accept, that with Mr Beuth's support, she held herself out as, and was in fact, a representative of Procom and acted in the company's interests at significant trade conventions.

52. I now consider the extent to which Ms Blums acted as a driver for Mr Beuth. Ms Blums said she commenced driving all over Australia in September 1995, to locations wherever Mr Beuth had clients which included Inverell, Casino, Scone, Melbourne, Sydney and to various locations in Queensland. She drove every day because Mr Beuth had epilepsy and needed to rest.

53. Ms Blums gave evidence she went on all the husband's business trips from September 1995 until she had Kenrick and also when Kenrick was "3, 5, 7 months old". She was away on business trips for weeks at a time, returning to see the children usually every second weekend. While she was away, a university student cared for the children. She drove ten hours per day, sometimes more, until she was six and a half months pregnant in June 1997 and that after the birth of Kenrick on 18 August 1997, she did some driving, but not a great deal. She was required to drive more regularly in 1998.

54. Ms Blums was asked whether she went anywhere on company business in rural New South Wales without Mr Beuth. Ms Blums appeared to agree that she had travelled without Mr Beuth and gave as an example of travelling without him a trip to an abattoir in Young, NSW.

55. Mr Beuth's evidence was that his business required frequent travel away from his base in Canberra, and that Ms Blums travelled with him on about one out of three or four trips. He denied she drove more than occasionally, that she had done any driving on the long car trips and said she did minimal driving for the business. In cross-examination Mr Beuth gave evidence that since 1991 or 1992 he has travelled about eighty thousand to ninety thousand kilometres each year. He said he had no difficulty driving for the business, which he has done entirely himself. In response to the suggestion that he suffered from a medical condition that affected his driving, Mr Beuth agreed he has epilepsy but denied it affected his driving and maintained that he had not to date required assistance with the driving.

56. It is possible that Ms Blums may have exaggerated the amount of driving she did if, by her evidence, she was saying she regularly drove ten hours a day. However, I accept that she assumed a significant role in driving on the many business trips she undertook with Mr Beuth.

57. As to office management, I generally accept the import of Ms Blums' evidence though I doubt that the hours she worked where as extensive as she now recalls. Prior to meeting Mr Beuth, Ms Blums completed an eight week "Jobtrain Reception" course in 1993. She said that she did office management type work for Procom, which included answering the telephone that was a 24 hours service and taking messages. She was in contact with clients, helping them locate her husband, and had a mobile telephone with her for most of the day.

58. She said she also carried out other tasks for about seven hours per day for five days per week. This, I think, is an exaggeration. However I am satisfied she generally did secretarial or office management type work. Those duties included typing documents Mr Beuth had written by hand because he was busy. She was responsible for picking up mail from a mailbox in Belconnen, collecting business documents from various places and organising deliveries to clients. She maintained a diary and created a schedule for her former husband as a way to ensure he kept his appointments, though they were not in evidence. She ceased doing work for Procom in May 2001.

59. I am satisfied that during the period of their relationship, Ms Blums made a significant contribution to the operation and development of Mr Beuth's business, Procom.

The wife's contribution as a homemaker

60. Ms Blums said she undertook all domestic duties at the McKellar property throughout their relationship. Plainly enough, her evidence generally related to the times she and Mr Beuth were in Canberra. I generally accept her evidence. She said she cleaned and decorated the house and gardened. She shopped for food and household supplies, and for business and casual clothing for Mr Beuth. She did most of the cooking for the household. She initially claimed to have arranged for domestic and household repairs, but later under cross-examination agreed she did not arrange for tradespersons to come to the house to make repairs, as they could not afford any. In relation to the husband, she said she washed and ironed his clothes, cooked for him, cut his nails and hair, and washed him.

61. She picked up the children from school and looked after them. Mr Beuth accepted that Ms Blums looked after their son from the time of his birth, but denied that she cared for their child to the exclusion of others.

62. It appeared not to be an issue that that a house cleaner provided some assistance with the cleaning of the McKellar property. Mr Beuth said that in respect of some duties (cleaning, washing, ironing clothes, and shopping for food and supplies), Ms Blums did no more than fifty percent of the work. In cross-examination, Mr Beuth agreed Ms Blums did more of the cooking and generally shopped for food and household supplies, but denied she shopped for the business or for casual clothing for him. He said that if Ms Blums required household items, he would give her money for it. He denied Ms Blums ever gardened at the McKellar property or arranged for household repairs. He also denied Ms Blums decorated the house other than hanging a picture on the wall. Mr Beuth said that while Ms Blums did some domestic duties at the McKellar house, the majority of it was performed by a cleaner paid for by him and that where possible, Ms Blums avoided cleaning. He said he did most of the washing and that she rarely ironed.

63. I am satisfied, from this evidence, that Ms Blums did a proportionately larger amount of the work in maintaining the family (and in particular their child) and the household and thereby provided support and comfort to Mr Beuth.

Mr Beuth's contribution and related matters

64. Generally speaking, the focus of the case, both evidentiary and in the submissions, was to establish, on the one hand, the contribution of Ms Blums to the relationship, and, in particular, her contribution to the operation and development of Mr Beuth's business and, on the other, to deny any significant contribution. Limited attention was given to the contribution of Mr Beuth other than to deny or diminish the contribution of Ms Blums. However his contribution will be relevant in any application of s 15 of the Act.

65. It appears, and I accept, that Mr Beuth provided financial support to Ms Blums and to maintain the household generally and generally paid for the utilities. As happens in cases such as the present, the amounts paid were not (and probably could not be) identified with precision as they were not, for example, periodic payments deducted from a bank account. Mr Beuth paid the mortgage for the McKellar property. I should note that there was an issue about the involvement of both Ms Blums and Mr Beuth in the negotiations leading up to the purchase of the property. However, nothing, in my view, turns on that issue. Ms Blums had access to a key card account maintained by Mr Beuth and later to a joint bank account.

66. However from at least 1997, Ms Blums received fortnightly payments of between $340-$380 from the Commonwealth by way of "Job Search Allowance" payments. During the relationship, she paid the rent (approximately $80) for the property at 8 Hartog St Griffith, a property for which the rent was subsidised by the Territory Department of Housing. Ms Blums also contributed to the running of the house and paid for some of the cleaning, the carpet in the garage and furniture in Mr Beuth's office. She also paid the baby sitter and spent $90 a week on childcare for their son.

Financial position of the parties

67. Generally evidence concerning the respective financial positions of the parties was not seriously challenged and I accept it. The position in July 1997 can mostly be established by reference to admissions in the pleadings. In July 1997 Mr Beuth's assets included the McKellar property and a flat in Melbourne, both subject to a mortgage. He was the sole shareholder and director of Procom, which owned a car and various other assets in the form of equipment and cash, and the sole shareholder and director of Rumlis Pty Ltd, which owned a unit in Melbourne that was also subject to a mortgage. It is not entirely clear from the evidence whether this unit was, in truth, a second property in Melbourne or the flat that Mr Beuth said he owned. It probably does not matter in any material way having regard to the way the case was conducted, because these were assets acquired by Mr Beuth before his relationship with Ms Blums commenced.

68. In 1997 Ms Blums' assets included a car, furniture and personal belongings and cash in various Commonwealth Bank accounts totalling $5000. In addition, Ms Blums said, and I accept, that at that time, she was in possession of cash (probably about $10,000) and was owed $5000.

69. On 12 June 2003 Mr Beuth filed a verified financial statement. His average weekly income was $711 and total assets were $777 300 comprising the McKellar property ($310 000), the unit in Victoria ($185 000), $300 in a Commonwealth Bank account, $5000 in a National Australia Bank account, and $65 000 invested in a Commonwealth Bank account, $210 000 in Procom and $2000 in household effects. There was also $50 000 in a self managed superannuation fund. Liabilities in June 2003 were $160 000 for the mortgage on the McKellar property and $15 000 for the mortgage on the unit in Victoria, $12 500 owing as income tax, $4000 owing on credit cards, $11 000 to an accountant and $10 000 to his mother.

70. In a subsequent affidavit sworn on 2 July 2004 Mr Beuth made further statements concerning his financial position. He said that there had been no variations to the items declared in the original verified financial statement. However he noted that had inherited US$100 000 from a cousin's estate, received in 1999 and that the money was used to pay off a number of both his and Procom's debts, purchase a $15 000 second-hand Falcon Fairlane sedan and most of the money invested in a Commonwealth Bank account had come from that inheritance. He said while he still had money invested in a Commonwealth Bank account, it had decreased to $55 000.

71. In evidence was a letter of 26 November 2004 from Liddell Weight Services Pty Ltd Chartered Accountants to the solicitor for Mr Beuth (David Lardner) attaching information taken from accounts concerning Procom as trustee for the Kenrick Allan Beuth Family Trust. Attached was information concerning the gross income of Procom for the years ended 30 June 1994 to 2002 inclusive, the salary paid to Mr Beuth, and the net income for each year. This is the best evidence available concerning the business activities of Procom and was tendered by counsel for Mr Beuth. Those financial statements provided:

Year ended 30 June	Gross Income $	Salary KA Beuth	Net Income
1994	129 317	33 000	793
1995	147 281	48 000	8 272
1996	123 293	27 000	8 202
1997	161 636	44 000	907
1998	178 080	37 000	388
1999	229 950	37 000	349
2000	236 078	30 000	42 993
2001	157 959	25 000	(1 455)
2002	118 812	12 000	1 404

72. It can be seen that the gross income of Procom began steadily increasing commencing in the financial year ending 30 June 1997 and peaked in the year ending the 30 June 2000. Over that period the gross income of Procom increased from $123 293 to $236 078, an increase of over $110 000 or approximately 90 per cent. The average increase in gross income over those four years was approximately $28 000 per annum. This was approximately the same period as the parties' relationship (save for the first year) in which Ms Blums assisted Mr Beuth in his business.

73. On 23 May 2003, Ms Blums provided a verified financial statement, estimating her weekly income at $451 (incorrectly totalled to $448 in the statement). That sum included social security payments of $212 from a parenting payment and $140 family tax benefit payment, $31 from an EPF pension education supplement payment, and $19 telephone allowance. She received maintenance/child payments of $2 from John Blums and $36 from Mr Beuth. Her fixed expenses totalled $368 and included $109 to the ACT Housing for weekly rental payments, $109 for school fees and levies and $30 for Aivars school expenses, $50 Centrelink loan repayment, $50 credit card repayment and $20 part payment of an electricity account with ACTEW. Her assets totalled $5000 and included her motor vehicle estimated to be worth $500, household effects estimated at $1500, and a computer, jewellery and a painting with a combined estimated of $3000. Her significant liabilities were $3 700 owed on her credit card, $800 to ACTEW and $2000 to Centrelink.

74. On 8 August 2004, Ms Blums provided a further financial statement which did not reveal a materially different position to that disclosed in her earlier financial statement, save for a reduction in her weekly income of $50.

75. One matter of detail should be mentioned. There was an issue the about who acquired what furniture for the McKellar property and who was entitled to furniture that was removed or remained at the property after the relationship ended and Ms Blums left. The evidence, on both sides, was not entirely clear. However, I apprehend the question of furniture is not a significant issue, indeed perhaps is a spent issue. I say that because of orders made by Miles CJ in March 2001 which put in place a regime to deal with the furniture and specific items were dealt with in those orders.

The application of s 15 and s 19

76. The terms of s 15 of the Act are set out earlier in this judgment (at [21]). It is to be recalled that the section confers on the Court a discretionary power to make an order to adjust the interests in the property of either or both the parties to a domestic relationship in such manner as the Court seems just and equitable. Several relevant considerations are identified though the Court can have regard to such other matters as the Court considers relevant. The operation of this section has helpfully been discussed in two comparatively recent judgments, namely the judgments of Cooper J in Ferris v Winslade (1998) 22 Fam LR 725 and Miles CJ in Byrne v Opuls (2002) 29 Fam LR 290 (see also Jacqueline Norma Crellin v Jennifer Maree Roberton [2004] ACTSC 92; (2004) 32 Fam LR 406 and Jonathan Mark Pigott v Jennifer Louise Walker [2002] ACTSC 40).

77. It also appropriate to set out s 19 of the Act which provides:

(1) On an application by a party to a domestic relationship, a court may order the other party to the relationship to pay an amount, or periodic amounts, by way of maintenance to the applicant if it is satisfied that--

(a) the applicant is unable to support himself or herself adequately because of having the care and control of a child of the parties, or a child of the other party, who, on the day on which the application is made, has not attained the age of--

(i) 12 years; or

(ii) if the child has a physical or mental disability--16 years; or

(b) the applicant is unable to support himself or herself adequately because the applicant's earning capacity has been adversely affected by the circumstances of the relationship and the court is satisfied that--

(i) an order for maintenance would increase the applicant's earning capacity by enabling the applicant to undertake a course or program of training or education; and

(ii) it is reasonable to make the order, having regard to all the circumstances of the case.

(2) In exercising a power under subsection (1), a court shall have regard to--

(a) the income, property and financial resources of each party; and

(b) the physical and mental capacity of each party for appropriate gainful employment; and

(c) the financial needs and obligations of each party; and

(d) the responsibilities of either party to support any other person; and

(e) the terms of any order made or proposed to be made under section 15 with respect to the property of either or both of the parties; and

(f) any payments made to the applicant, under an order of a court or otherwise, in respect of the maintenance of a child or children.

(3) In making an order for maintenance, a court shall ensure that the terms of the order will, as far as practicable, preserve any entitlement of the applicant to a pension, allowance or benefit.

78. In the written submissions of counsel for Ms Blums, a claim was made not only for an order adjusting the interests in property under s 15 but also an order for maintenance under s 19. However the submission is nothing more than a bare assertion that such an order should be made. While I have earlier ruled that Ms Blums' case was not, in any relevant legal sense, confined to a case claiming compensation for the work done for Procom, that claim was at the forefront of the case advanced by Ms Blums. No real attempt was made to establish any subsisting needs or circumstances which what might warrant an order under s 19. Indeed it was comparatively clear that apart from maintenance paid to Ms Blums to sustain their child Kenrick, both parties were desirous of finalising, by these proceedings, arrangements between them. I do not propose to make an order under s 19.

79. I turn to consider whether any order should be made under s 15 and if so, in what terms. In discussing the evidence, I have indicated that I am satisfied that Ms Blums has made a material contribution to the maintenance and development of Mr Beuth's business, Procom. In so doing, Ms Blums contributed to the financial resources of Mr Beuth. That is so even though Procom is a trustee of a family trust of Mr Beuth. Indeed no submission was made that its status as such, was of any relevance or limited the assessment of Ms Blums' counter claim. Ms Blums' contribution was in no real way reflected in the moneys paid by Mr Beuth to maintain and support Ms Blums during their relationship. I also indicated that I am satisfied that Ms Blums, in the capacity of a home maker, made a greater contribution to the welfare of Mr Beuth, than he made to her welfare. These factors point to an order in favour of Ms Blums. At the end of the relationship, there was an obvious imbalance, in my opinion, in a position of Ms Blums when compared to that of Mr Beuth.

80. Accordingly I am satisfied that an order should be made under s 15 of the Act in favour of Ms Blums. Necessarily, the evaluation, in money terms, of the contribution of the party to the domestic relationship is imprecise in a case such as the present. However I have taken into account the material contribution of Ms Blums to Mr Beuth's business which, as I indicated earlier, increased its gross income by, on average, approximately $28 000 per annum for four of the years in which the parties were in their relationship and Ms Blums was providing assistance. I propose to order that Mr Beuth pay Ms Blums the sum of $45 000 constituting an adjustment pursuant to s 15(1) that is just and equitable. Mr Beuth should pay Ms Blums' costs of, and incidental to, the hearing of 14 February 2005.

I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Moore.

Associate:

Date: 16 June 2005

Counsel for the plaintiff: C S Ward

Solicitor for the plaintiff: David Lardner

Counsel for the defendant

for hearing on 14 February 2005: D A Hassall

Solicitor for the defendant

for hearing on 14 February 2005: Jeanine Lloyd & Associates

Date of hearing: 30 November 2004, 14 February 2005

Date of judgment: 16 June 2005