Adess and Vernon
[2017] FCCA 2501
•23 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ADESS & VERNON | [2017] FCCA 2501 |
| Catchwords: FAMILY LAW – Property – s.79A(1A) – whether the marital relationship continued after final property orders – whether the parties intermingled assets and income – whether by inference parties no longer bound by previous orders – whether husband under duress at time he entered into consent property orders – application dismissed. |
| Legislation: Family Law Act 1975, ss.75(2), 79, 79A, 79A(1), 79A(1)(a), 79A(1A), 79(2), 79(4) |
| Cases cited: SH v DH (No 1) (2003) 202 ALR 660 Harris v Caladine (1991) 172 CLR 84; 99 ALR 193; FLC 92-271 |
| Applicant: | MR ADESS |
| Respondent: | MS VERNON |
| File Number: | CAC 1505 of 2014 |
| Judgment of: | Judge Tonkin |
| Hearing date: | 18 May 2017 |
| Date of Last Submission: | 18 May 2017 |
| Delivered at: | Canberra |
| Delivered on: | 23 October 2017 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the Respondent: | Mr Nicholl |
| Solicitors for the Respondent: | Canberra Legal Group |
ORDERS
The application filed on 11 December 2015 as amended is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Adess & Vernon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 1505 of 2014
| MR ADESS |
Applicant
And
| MS VERNON |
Respondent
REASONS FOR JUDGMENT
Introduction
This application was brought by the husband pursuant to section 79A(1A) of the Family Law Act (“the Act”). The parties separated in 2004 and entered into Consent Orders on a final basis adjusting their property interests. The husband seeks to set aside those orders. He represented himself throughout the proceedings and the wife was represented by a solicitor. I have referred to the parties as husband and wife in this judgment rather than applicant and respondent.
Orders sought by the husband:
In his Further Amended and Updated Initiating Application filed 20 April 2017, the husband sought the following orders:
“1. The Federal Circuit Court of Australia determine this matter for property and financial settlement, based on the fact that after previous property orders were made, Mr Adess and Ms Vernon re-established a married domestic relationship, subject to the relationship meetings the relevant sections of the Family Law Act.
2. Property and finances be distributed to both parties, as the Court advises may be just and equitable, assessed in accordance with Family Law.
3. The Court determine from the evidence presented whether Sections 79A and 75(2) are relevant and whether previous Orders may be varied or set aside.
4. The matter be allocated a date for conciliation conference.”
During closing submissions, the husband clarified that he did not seek any transfer of property and/or money to him, but sought an order that the wife transfer to him “50% of her superannuation.”[1]
[1] Transcript 18 May 2017, p 93.
In her Response to the Initiating Application filed 28 October 2016, the wife sought that the amended application filed by the Applicant be dismissed and that he pay the wife’s costs.
The husband’s application
There was some uncertainty as to the legal basis of the husband’s application and the Court sought clarification. The following exchange occurred:
“HER HONOUR: Now, I understand that you have orally sought – you have sought leave to orally amend your application and your application now proceeds on the basis that pursuant to s 79A(1A) of the Family Law Act the orders made in August 2004 by consent should be varied and set aside. That is your application, yes?
MR ADESS: Uh, yes, your Honour.
…
HER HONOUR: What do you say about any other factor under s 79A? Are you relying on any other factor? That there was suppression of evidence?
MR ADESS: There was what your Honour, I’m sorry?
HER HONOUR: There was suppression of evidence? … No – I don’t read that in the document.
MR ADESS: No, no not suppression of evidence
HER HONOUR: That you were under duress, you say?
MR ADESS: I certainly was under duress – well, I don’t know if there was suppression of evidence –
HER HONOUR: Well, well you don’t plead it then.
MR ADESS: Yes, OK, I can’t prove it.
HER HONOUR: That you were under duress and you say on the documents that you’ve filed that I’m entitled to make a finding you were under duress such that the orders should never have been made. Is that what you’re saying to the court? Because Mr Nicholl needs to know what case he’s got to answer.
MR ADESS: Yes, I do to a degree, your Honour. Yes.
HER HONOUR: Yes, so those two prongs, Mr Nicholls. Duress as well.”
Issues to be determined
Was the applicant under duress at the time he entered into consent orders in 2004?
Was the quality of the applicant’s legal representation at the time the Consent Orders were made in 2004 so poor as to amount to a miscarriage of justice?
Did the parties act in a manner such that there is implied consent by both parties to set aside the consent orders made in 2004?
If so, should the court make another order in substitution for the orders made in 2004?
Documents relied on
The husband relied on his Application filed on 11 December 2015 as amended, affidavits filed on 11 December 2015, 20 April 2017 and 15 May 2017, the affidavits of Mr T filed 15 May 2017, affidavit of Mr F filed 15 May 2017, affidavit of Mr B filed 15 May 2017, affidavit of Mr G filed 15 May 2017 and Financial Statements filed 11 December 2015 and 19 September 2016. In addition he filed a case outline.
The wife relied on her response filed 28 October 2016, her affidavit filed on 4 May 2017, her Financial Statement filed 28 October 2016, the affidavits of Mr A filed 4 May 2017, Mr M filed 4 May 2017, Ms F filed on 27 October 2014 and affidavit filed on 4 May 2017, Ms M filed 8 May 2017, Ms L filed 4 May 2017 and Mr I filed 4 May 2017.
Legislation
Section 79A - Setting aside of orders altering property interests
Section 79A:
(1) Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:
(a) there has been a miscarriage of justice by reason of fraud, duress ,suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance; or
(b) in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out; or
(c) a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order; or
(d) in the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, the child or, where the applicant has caring responsibility for the child (as defined in subsection (1AA)), the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order; or
(e) ………..
the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section79 in substitution for the order so set aside.
(1A) A court may, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, and with the consent of all the parties to the proceedings in which the order was made, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.
(1AA) ……..
(1B) ……..
(1C)…….
The Principles Underpinning section 79A of the Family Law Act
In SH v DH (No 1) (2003) 202 ALR 660 (“SH v DH”), Ryan FM (as her Honour then was) comprehensively set out the relevant principles relating to section 79A as follows:
“[43] Section 79A is a remedial section designed to overcome miscarriages of justice. It applies to orders made after a defended hearing as well as to orders made by consent: Harris v Caladine (1991) 172 CLR 84; 99 ALR 193; FLC 92-217.
[44] The 1979 amendment broadened the section's application to allow the setting aside of a s 79 order where “there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence, the giving of false evidence or any other circumstance”. The court now has power to set aside an order for settlement of property which arises not only as a result of a miscarriage of justice by reason of the specific grounds in the section, but also by reason of any “other circumstance”. The phrase, “or any other circumstance” in s 79A(1)(a) is not to be read eiusdem generis with fraud, duress, suppression of evidence or the giving of false evidence: Clifton v Stuart (1990) 14 Fam LR 674 ; FLC 92-194 ; In the Marriage of Suiker (1993) 17 Fam LR 236 ; FLC 92-436 .
[45] Importantly, s 79A(1)(a) only applies to circumstances in existence before or at the time the original order was made, it does not apply to circumstances occurring afterwards: Molier v Van Wyk (1980) 7 Fam LR 18 ; FLC 90-911 ; In the Marriage of Holland (1982) 8 Fam LR 233 ; FLC 91-243 .
[46] Case law suggests that s 79A should be construed liberally so as to achieve its intended purpose: see for example In the Marriage of Gilbert and the Estate of Gilbert (dec’d) (1989) 13 Fam LR 632; (1990) FLC 92-125. However, while this is so, the section should not be used to override the basic principle that “there can only be one property settlement between the parties to a marriage”: In the Marriage of Kowalski (1992) 16 Fam LR 235; FLC 92-342. The importance of bringing an end to litigation is an important and significant consideration: Simpson v Hamlin (1984) 9 Fam LR 1040; FLC 91-576.
[47] When determining an application under s 79A(1) the court must engage in a four-stage process. The four stages are:
(i) whether a ground, such as duress, under the section is established;
(ii) whether the existence of that ground amounted to a miscarriage of justice;
(iii) whether the court in its discretion should vary or set aside the order; and
(iv) whether the court should make another order under s 79.
[48] Accordingly, even if a ground such as duress is established under the section, the court can refuse to exercise its discretion to set the orders aside: In the Marriage of Fickling (1996) 20 Fam LR 258; FLC 92-664. The court must be satisfied that there has been a miscarriage of justice to justify setting aside or varying the consent orders. It is not sufficient to simply establish, for example, that the orders resulted from duress. Accordingly, if a ground exists for setting aside an order the court is not required to immediately set it aside. Rather, the applicant must establish a ground for relief and satisfy the court that it should exercise its discretion in their favour: Official Trustee in Bankruptcy v Donovan & Stevens (No 2) (1996) 20 Fam LR 802; FLC 92-703; In the Marriage of Prowse (1994) 18 Fam LR 348; FLC 92-557.
[49] If the court sets aside the order and proceeds to make a fresh order under s 79, it is required to consider all factors which must be considered under s 79(4), s 79(2) and, so far as they are relevant, s 75(2). Generally the s 79A application and any consequent s 79 application should be heard at the same time: In the Marriage of Oastler (1989) 16 Fam LR 673. If the court considers it appropriate to set aside an order under s 79A, the claim should be determined as at the date of hearing the s 79A claim and not at the date the original orders were made: In the Marriage of Fickling, above.”
Miscarriage of Justice – Duress
In Badawi & Badawi [2016] FamCA 804, McClelland J identified the relevant test to establish duress (quoting Ryan FM in SH v DH) as follows:
“[56] In SH and DH (2003) FLC 93-164, Federal Magistrate Ryan (as her Honour then was) reviewed the relevant authorities and concluded that the applicable test, for the purposes of s 79A, should be “by reference to equity’s formulation” of duress.
[57] That test, as formulated by McHugh JA in Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40 at 45-46, is:
A person who is the subject of duress usually knows only too well what he is doing. But he chooses to submit to the demand or pressure rather than take an alternative course of action. The proper approach […] is to ask whether that pressure went beyond what the law is prepared to countenance as legitimate? Pressure will be illegitimate if it consists of unlawful threat or amounts to unconscionable conduct.”
Relatedly, the principle of unconscionable conduct was authoritatively set out by Mason J in Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 at 461-2 as follows:
“[3] … Relief on the ground of unconscionable conduct will be granted when unconscientious advantage is taken of an innocent party whose will is overborne so that it is not independent and voluntary, just as it will be granted when such advantage is taken of an innocent party who, though not deprived of an independent and voluntary will, is unable to make a worthwhile judgment as to what is in his best interest.
[4] It goes almost without saying that it is impossible to describe definitively all the situations in which relief will be granted on the ground of unconscionable conduct. As Fullagar J. said in Blomley v. Ryan [1956] HCA 81; (1956) 99 CLR 362, at p 405:
The circumstances adversely affecting a party, which may induce a court of equity either to refuse its aid or to set a transaction aside, are of great variety and can hardly be satisfactorily classified. Among them are poverty or need of any kind, sickness, age, sex, infirmity of body or mind, drunkenness, illiteracy or lack of education, lack of assistance or explanation where assistance or explanation is necessary. The common characteristic seems to be that they have the effect of placing one party at a serious disadvantage vis-a-vis the other."
[5] Likewise Kitto J. (1956) 99 CLR, at p 415 spoke of it as “a well-known head of equity which – “. . . applies whenever one party to a transaction is at a special disadvantage in dealing with the other party because illness, ignorance, inexperience, impaired faculties, financial need or other circumstances affect his ability to conserve his own interests, and the other party unconscientiously takes advantage of the opportunity thus placed in his hands".
[6] It is not to be thought that relief will be granted only in the particular situations mentioned by their Honours. It is made plain enough, especially by Fullagar J., that the situations mentioned are no more than particular exemplifications of an underlying general principle which may be invoked whenever one party by reason of some condition of circumstance is placed at a special disadvantage vis-a-vis another and unfair or unconscientious advantage is then taken of the opportunity thereby created. I qualify the word “disadvantage” by the adjective “special” in order to disavow any suggestion that the principle applies whenever there is some difference in the bargaining power of the parties and in order to emphasize that the disabling condition or circumstance is one which seriously affects the ability of the innocent party to make a judgment as to his own best interests, when the other party knows or ought to know of the existence of that condition or circumstance and of its effect on the innocent party.”
Although the civil standard of proof applies to these proceedings, the seriousness of the husband’s duress allegations requires that the Court consider Dixon J’s comments in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2:
“…but reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer ... In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
Miscarriage of Justice – Any Other Circumstance – Incompetence of Legal Representation
In Badawi (supra), McClelland J quoted the principles relevant to a determination of whether a party’s legal representation may be so poor that it amounts to a miscarriage of justice for the purposes of section 79A (as set out by Full Court in Clifton & Stewart (1991) FLC 920194):
“[106] As will become relevant in the Court’s determination of this application, in Clifton & Stuart (supra), the Full Court agreed that generally the incompetence of legal representatives, though unjust for the party represented, does not affect the judicial process such that it would amount to a miscarriage of justice. However, the Full Court also agreed that such incompetence could amount to a miscarriage of justice if:
… the representation was so bad as to be the equivalent to no representation at all or if the representation was perverse for example if the representative was in league with the other side.”
Implied Consent to Vary the Consent Orders
It is settled law that the consent required under section 79A(1A) need not be communicated explicitly. In the Marriage of N W and S F McCabe (1995) 19 Fam LR 579 concerned a married couple who separated, entered into property consent orders and shortly thereafter reconciled. Upon reconciliation, neither party took steps to implement the terms of those consent orders. With respect to whether the trial judge rightly held that the parties’ conduct evinced an agreement to set aside the previous consent orders, the court commented:
“[i]n cases of this nature conclusions about intention which should be attributed to the parties will depend upon the particular circumstances of each case. That material would not necessarily be confined to the initial decision to reconcile … Their intention may crystallise into a more precise form as time progresses and as the parties’ reconciliation continues and they conduct their lives together, including their financial affairs, so that it becomes inconsistent with any other conclusion.[2]”
[2] In the Marriage of N W and S F McCabe (1995) 19 Fam LR 579, 582.
In Gitane & Velacruz (No 3) [2007] Fam CA 1277[3] the husband argued that the wife had given her implied consent to set aside property consent orders by transferring to him her interest in the former matrimonial home without receiving in return a sum of money as agreed in the consent orders. Justice Rose found that a telephone conversation occurred between the parties in which the wife gave her qualified consent to waive her entitlement under the orders upon seeking legal advice. His Honour determined that the telephone call, in combination with the wife later seeking legal advice and signing the transfer, provided the requisite consent to set the orders aside.
[3] Affirmed on appeal to the Full Court in Gitane & Velacruz [2008] FamCAFC 86.
In closing submissions, Mr Nicholl for the wife sought to distinguish the present matter from the recent decision of the Full Court in Waterman & Waterman [2017] FamCAFC 23 (“Waterman”).
In Waterman a couple whose relationship spanned almost 30 years separated for a period of about 17 months beginning in 1998. Shortly after their initial separation, the parties entered into consent orders relating to their property. Broadly, those orders provided that the former matrimonial home be sold and the proceeds divided equally, the parties each retain a motor vehicle, their respective superannuation entitlements and any chattels in their current possession.
Soon after the making the orders and those orders being partially executed the parties resumed a close relationship and by 2000 had reconciled. The trial judge, Newbrun J, accepted that during this period the parties “holidayed happily together” with their children and resumed full-time cohabitation from around 2000 until their final separation in 2012. Notably, during this period of reconciliation, Newbrun J found (and the Full Court accepted) that the parties organised their financial affairs in a more “separate” manner than as before their initial separation.[4] Also notable is Newbrun J’s finding that the wife had not received her full entitlement under the consent orders.[5]
[4] Waterman [2017] FAMCAFC 23 [70].
[5] Waterman [2017] FAMCAFC 23 [13].
On appeal, Murphy J stated that when considering the nature of consent for the purposes of section 79A(1A),
“[t]he relevant inquiry … is whether the post-reconciliation circumstances over the time frame of the reconciliation establish an inference that the parties intend the orders to not bring an end to their financial relationships, and, consequently, an end to a later determination of later contributions made within that relationship”.[6]
His Honour drew attention to the notable absence in Newbrun J’s reasons of “any mention of the nature, type and extent of the parties’ respective contributions … during the course of their relationship”[7] in circumstances where the wife took on the role of predominant homemaker and parent (receiving a fortnightly payment from the husband in addition to some part-time work) and the husband the primary wage-earner.[8]
[6] Waterman [2017] FAMCAFC 23 [87].
[7] Waterman [2017] FAMCAFC 23 [77].
[8] Waterman [2017] FAMCAFC 23 [78] – [79].
In considering the totality of the parties’ relationship, his Honour held that the “separateness” of the parties’ financial affairs from 1999 onwards identified by Newbrun J:
“cannot in my view be seen as pointing to a post-reconciliation separation of financial lives. Rather, that evidence and those findings point to a ”separateness” in responsibility for meeting expenses from the joint resources of both parties, albeit that the proportion in which those resources were sourced to the income of one or both altered from time to time. The fact that the husband … abdicated to the wife responsibility for meeting expenses, other than the provision of accommodation, associated with the day to day necessities of the parties and, crucially the children, from an amount which he determined and controlled (and which did not increase for 10 years) does not, in my view, indicate to the contrary.[9]”
[9] Waterman [2017] FAMCAFC 23 [89].
The wife’s solicitor relied on Chancellor & McCoy [2016] FCCA 53 (“Chancellor”) as authority for the proposition that even if the court were to find that the parties had impliedly consented to varying the 2004 orders (as the husband suggests), the manner in which they arranged their financial affairs after the 2004 consent orders militates against this court exercising its discretion to vary or set those orders aside. The wide discretion belonging to the court to vary an existing order, even upon finding the implied consent of the parties, was confirmed by the Full Court in Gitane & Velacruz [2008] FamCAFC 86.[10]
[10] Gitane & Velacruz [2008] FamCAFC 86, [13].
Chancellor concerned an almost 30-year-long de facto relationship between a childless, same-sex couple. After citing Stanford[11] and Bevan,[12] Turner J concluded that “it would not be just and equitable to make an order altering the property interests”.[13] The Court held that for their entire relationship, the parties had “conducted their affairs in such a way that neither party would or could have acquired an interest in the property owned by the other”.[14] Central to this outcome was the fact that there was no intermingling of finances; each party acquired property solely in their own name; each party remained responsible for their own debts and was able to use their wage as they chose without accounting to the other party; the parties did not discuss or execute mutual wills nor name each other as beneficiaries in any superannuation or life insurance policies; and at separation neither party was aware of the assets the other owned, how those assets were acquired and any liabilities that existed.[15]
[11] Stanford & Stanford (2012) 247 CLR 108.
[12] Bevan & Bevan [2014] FamCAFC 19.
[13] Chancellor [2016] FCCA 53 [58] (affirmed on appeal to the Full Court Chancellor & McCoy [2016] FamCAFC 256.
[14] Chancellor [2016] FCCA 53 [59].
[15] Chancellor [2016] FCCA 53 [48] – [57].
Agreed facts
The husband is 63 years born on (omitted) 1953 and the wife is 56 years born on (omitted) 1961. The parties met in 1994 and lived apart and maintained separate accommodation. The wife was working full time with the (employer omitted). The husband obtained full time employment in 1997 with the (employer omitted) as a (occupation omitted)
In 1998 the wife purchased a unit in Property A in her sole name for $190,000. She borrowed 80% of the purchase price and paid the deposit and stamp duty from her savings. In 1999 the husband moved into a unit in the same complex as the wife’s Property A home.
The husband moved into the wife’s Property A home in (omitted) 2001. The parties married on (omitted) 2001.
The parties purchased a home at Property B in April 2002 for $384,000 taking a joint mortgage. The wife borrowed $72,000 secured over her Property A unit and paid a deposit of $18,000 from her savings.
On (omitted) 2002 the twins X and Y were born (they are now 15).
The parties had a joint mortgage account but otherwise did not have joint bank accounts. Neither party had access to the other party’s bank accounts save for the joint mortgage account.
In August 2003 the wife reported the husband to the Child Protection Agency asserting that the husband was masturbating on the back steps of the home while watching the children who were in the back yard playing.
The wife took out an interim Apprehended Violence Order on 2 February 2004. The parties separated on 19 February 2004 when the wife and children left the Property B home whilst the husband was away for work. The wife moved to her parents’ home in Canberra with the children for a few weeks then moved into a rental unit in Property A with the children. The wife applied for child support in February 2004. The children lived primarily with the wife.
The wife started work in April 2004 three days a week and then commenced working full time. The twins were placed into child care. The husband commenced paying child support in May 2004. The wife paid the costs of child care.
On 5 August 2004 the parties entered into final Consent Orders adjusting their property interests. The orders of 5 August 2004 were executed in their entirety. The Property B property was sold with net proceeds of sale of about $100,000. The wife received about $65,000 and the husband about $35,000. The wife retained her property in Property A.
The parties entered into final parenting orders by consent. Those orders permitted the mother to relocate to Canberra with the children to live with the mother and spend time with the father for ten days over a four week cycle but no overnights. The mother was permitted to accompany the children on contact visits. The children were two years and four months old at the time.
The husband made no application to vary the parenting orders though he lived and worked in (omitted) until 2012 while the children lived in Canberra.
In September 2005 the wife sold her Property A property for $348,000. In December 2005 she purchased a property in her sole name at Property C in A.C.T. for $520,000. She applied the net proceeds of sale from her Property A property and borrowed $410,000 to fund the balance and used her savings to pay stamp duty, moving costs and for some refurbishments. In December 2005 she transferred her employment to Canberra and relocated with the children.
The husband worked full time for the (employer omitted) between 2005 and 2012. He travelled to Canberra each week to spend time with the children.
The husband paid child support as assessed from May 2004 and continues to pay child support.
The husband stayed in the wife’s home at Property C from time to time. He concurrently rented accommodation in (omitted) where he lived and worked. In addition he stayed with friends and rented accommodation in various places including (omitted), (omitted), two different properties in (omitted) and other homes in and around the Canberra region.
In about 2006 the husband received an inheritance from his aunt.
In about 2007 the husband commenced a relationship with a (occupation omitted) in (omitted) who at the time was caring for his mother. He also commenced a relationship with a woman in (omitted).
The parties had sexual relations intermittently.
In about 2011 the husband received an inheritance when his mother died.
In July 2011 the husband purchased an onsite caravan at (omitted).
The husband was offered a voluntary redundancy in October 2012. At that time he was required to vacate his granny flat in (omitted). He asked the wife if he could move into her home on a temporary basis and moved in about a week after vacating the granny flat.
The wife sent the husband an email on 22 August 2012 confirming the conditions upon which the husband was permitted to move into her home.
The husband stayed in the wife’s home in Property C between October 2012 and September 2014. He was not in employment for some of that time.
The husband received a redundancy payment of about $120,000 in 2013.
There was an incident in September 2014 and the husband left the home following police being called to attend. The wife took out a Domestic Violence Order against the husband on 14 September 2014.
In 2015 the husband obtained part time work two days per week as a (occupation omitted) with the (employer omitted).
The husband lodged a claim for a share of the Family Tax Benefit on the basis that he had “50% care of the children.” His claim was rejected with Centrelink determining the wife had 93% care of the children.
In December 2014 the wife filed for divorce. The divorce was granted in January 2015. The wife deposed to the date of separation as February 2004.
Between September 2014 and February 2016 the husband stayed with friends.
The husband filed his initiating application on 11 December 2015. At that time he was working two days per week. The wife was working full time. When he commenced proceedings the husband had about $123,000 as an interest in his superannuation fund.
In March 2016 the husband stayed in the wife’s home for about three nights a week over a period of three months until the wife asked him to leave.
At the time of the trial the husband was in receipt of a Newstart allowance.
At the time of the trial the wife was working as an (occupation omitted) with the (employer omitted) earning about $102,000 p.a.
Facts not agreed
The husband contends that the parties “first separated” on 19 February 2004. The wife says the parties separated on a final basis at this time. He said that in mid - 2005 the parties “relationship restarted.” The wife denies this to be the case.
The husband asserted “The orders made by consent on 5 August 2004 were unfair in that the distribution of 65% to Ms Vernon and 35% to me limited my capacity to see the children, particularly overnight.” The wife contends that both parties were represented by solicitors at the time. The husband made no application to vary the parenting orders at any time even though those orders were made when the children were two years and four months old.
The husband said “I believe that within our marriage, expressly by our conduct, (we) consented to the discharge of the prior orders of 5 August 2004.” The wife denied there was any express or implied consent to discharging the consent orders made in August 2004.
The husband alleged that from 29 August 2005 when the wife lived at Property A “we recommenced sharing some household and travelling expenses which became more regular and detailed from then on.” The wife denies this. She said the parties had separate accommodation and lived separately and apart. She paid the cost of child care for the twins. The husband paid child support from May 2004.
The husband said that from August 2005 the parties maintained detailed “shared – cost reconciliation journals year by year.” The accounts kept by the husband reflected his payments of child support, payment of items he provided for the children, rent he paid to the wife from time to time and his share of the utilities he used during the periods the wife permitted him to stay in her home. The wife denies the parties “shared costs” and/or intermingled their income.
The husband relied on an email from the wife advising on 8 May 2007 “you have been staying on a regular basis since October 2006 on average 4 days out of 7 every week.” He claimed “this pattern continued until October 2010 then became more frequent including cohabiting full time from October 2012 to September 2014.” The wife said that on average the husband stayed at her home for four days to spend time with the children. She said his stays were inconsistent, he came and went as he pleased, he sometimes stayed two or three nights depending on what he was doing at the time.
The husband asserted that “cohabitation was disjointed at times when I lived in separate residences and worked away from home at (omitted).” He said he was a “financial contributor” to the twins “beyond the point of Child Support – in the house Ms Vernon purchased in Canberra in late 2005.” The wife denies that the parties cohabited at any time after separation in a husband and wife type arrangement. She contends that the husband did not contribute financially to the home she purchased in Property C. He paid child support as assessed.
The husband said the parties “resumed their sexual relationship in 2006 and this continued until late 2012.” Later he described their sexual relations as “sporadic.” He said they shared a bedroom until 2012 and he engaged in sexual intercourse with the wife “a couple of times a year” between 2006 and 2012. They ceased sleeping together in December 2012. He said their sexual relationship continued until September 2012. He denied it ceased in 2010 but said it was “very minor” after that time. He said there were no sexual relations between them between 2012 and 2014. He claimed there was “one event only in 2004 and we reunited in 2005.”
The wife denies the parties resumed a sexual relationship in 2006 and denies this continued until late 2012. She said the parties had sex intermittently always at the husband’s insistence. The last occasion occurred in 2010. She alleged in her affidavit that he sexually assaulted her on many occasions when staying in her home.
The husband said he cared for the twins in the wife’s home when she was absent for work and spent about “100” nights with the children since they were young including Christmas and New Year and Easter 2017 school holidays. The wife agrees that the husband spent 100 overnights with the children. She said this was over the period between 2004 and 2014, a period of 10 years and on average 10 nights per year. She said he spent time with the children when he stayed in her home and at his convenience.
The husband contends he regarded Canberra as his base and had done so since 2006. The wife contends and the husband agrees that he lived and worked in (omitted) from 2004 until late 2012.
The husband alleged when the parties were at dinner in mid - 2008 the wife said she was “still proud” to be his wife. The wife denies this.
The husband said that between 2006 and 2012 the parties “lived together in a domestic relationship as a family more than half the week in Property C, from October 2006.” He said he maintained “some separate accommodation.” The wife says that during this period the husband was living and working in (omitted). He commuted from (omitted) to Canberra to spend time with the children. He sometimes stayed in her home overnight but always maintained separate accommodation concurrently. He was free to come and go as he pleased and he did so.
The husband said between 2012 and 2014 the parties “cohabited full time for 2 years from October 2012 to September 2014.” Notwithstanding this assertion, the husband conceded before the Registrar at the time of the divorce that the parties’ relationship ended in 2012.[16]
[16] Husband’s affidavit dated 20 April 2017, [10].
The wife denies the parties ever cohabited after separation in February 2004. She said she permitted the husband to stay in her home from October 2012 as the accommodation he was renting had been sold. He stayed in her home temporarily and on conditions. He paid rent and a share of the utilities. He continued to pay child support as assessed.
The husband said in September 2014 there was a “forced separation” with the wife alleging domestic violence. He said he acted in “reasonable pre-emptive self defence.” The wife denies there was any “forced separation.” The husband was staying in her home conditionally. He refused to leave at her request. An incident occurred and the police were involved and he was required to leave her home.
The husband said in 2014 the wife “initiated a divorce.” She agrees she filed her application for divorce in December 2014.
The husband said in 2016 the parties “cohabited 3 – 4 nights per week for 5 months from March to July 2016.” The wife denies she ever cohabited with the husband after February 2004.
The husband said he made financial and non-financial contributions including “maintaining a roof over the family’s heads, the twin’s education and extra curriculars, clothing for the twins and occasional gifts to Ms Vernon, food, educational materials including laptop computers, summer camping holidays, after school maths tutoring and contributions to gifts.” The wife denies the husband made any financial contribution to her home. He did not contribute to the mortgage. They did not have joint bank accounts. They did not pool their income. He paid rent and a pro rata share of his use of utilities when he stayed in her home. He spent time with the children regularly and undertook parental responsibilities whilst he was spending time. He paid child support as assessed. The husband admits he made payments “for accommodation at Property C and a proportional share of utilities.” He said the journal entries for accommodation listed how many nights he stayed at her home and the amount he had to pay for the time he stayed in her property.
The husband said he made a significant non-financial contribution towards the twins delivering them to and collecting them from school, helping with homework, cooking and reading stories and the like. The wife says he undertook these tasks as a parent when visiting the children. She said she had sole financial and non-financial responsibility for the children at all times other than when the husband chose to spend time with the children.
The husband said the parties spent family events together from 2006 and visited his mother’s home in (omitted) and spent camping holidays together every summer from 2007 including Christmas and New Year 2013 to 2014. The wife agrees that occasionally she accompanied the husband to assist with the children but that this was infrequent.
The husband said he made a contribution to the wife’s home in Property C. He participated in family working bees and assisted in soil removal, constructed shade cloths, re-potted plants and watered the garden. He said in addition he undertook general maintenance of the property. He contributed “by gardening and landscaping over more than a year without recompense or property equity.” He asserted that the wife requested he fund a landscaping project for her home. He said that when he asked if that meant she would offer him “proportional equity of the construction as part of the mortgage” she said no and he declined to fund the project. The wife denies any conversation took place as alleged by the husband. She says he did not contribute financially at all towards the landscaping as she borrowed $100,000 to undertake that task. She relied on her father and brother and brother in law to assist with landscaping. The husband made no significant contribution to the landscaping or maintenance of her home.
The wife said at one time she became concerned that the husband would attempt to make a claim against her property from the comments he made. She discussed the husband signing a binding financial agreement but he refused. The husband agreed that the wife had requested that he sign a binding financial agreement. He said he declined to do so.
The husband agreed that a regular feature between the parties was personal violence. He said he was the victim of assaults. The wife said she was the victim of both physical and sexual assault perpetrated by the husband during times he stayed at her home.
The husband received a family inheritance from his aunt in 2006 and when his mother died in 2011. He said he spent those funds on family living expenses and his own living expenses over several years. The wife said she was unaware he received those funds until she read his affidavit. She said the husband did not apply any of those funds towards her home or towards any household expenses. He agreed in cross examination that he was at liberty to spend those funds as he wished.
The husband bought an onsite caravan at (omitted). The wife agreed she helped him paint and redecorate the interior.
The husband said from mid-2013 he lived off the proceeds of a voluntary redundancy of $120,000 from (which he used to “share family living expenses.” The wife said she was unaware he received those funds though she was aware he had been offered a redundancy. She said the husband did not apply any of those funds towards her home or towards any household expenses. The husband agreed he was at liberty to spend those funds as he wished.
The husband claimed he contributed to the care of the twins and contributed “an equitable share of housework.” The wife denies he made an equitable contribution towards housework. She said she requested he assist with chores as a condition of him staying in her home. He consistently declined to assist and this was the source of many arguments.
The husband said between July 2013 and September 2014 he was “more than a 50–50 live in carer for (the twins) and ongoing contributor to all household activities and chores after I had taken a voluntary redundancy from my employer (employer omitted).” The wife denies this. The husband conceded the parties were separated at this time.
Cross examination of the husband
Under cross examination the husband was questioned about the nature of the parties’ relationship. He agreed it was “very turbulent” but denied it was “toxic.”
He agreed that the final property orders had been implemented in their entirety and the wife had purchased Property C in her sole name and this was not a joint decision. He agreed he did not contribute to that purchase. He said “she showed me the house.”
He disagreed that since separation in February 2004 he and the wife had “meticulously kept their financial arrangements separate.” He said “Not entirely, no.” He said they had had a single joint bank account which “barely operated.” In response to this answer the wife’s solicitor said “But that’s misleading, isn’t it, because you know it wasn’t operated. You know it wasn’t used?”
Mr Adess: “I’m simply answering your question, sir. You asked me a direct question. I’m filling in the facts.”
Mr Nicholl suggested: “since the orders were made you’ve kept your pile of money and Ms Vernon has kept her pile of money?”
Mr Adess: “No, I don’t agree with that.”
Mr Nicholl: “All right. Now, tell me how you don’t agree with it?”
Mr Adess: “Well, as per my affidavit, the annexures in it, in our domestic renewed domestic relationship since 2005, there has been an intermingling of finances such that there has been co-spending on items that any family would spend for and on each other.”
Mr Nicholl: “So you’re not having a bank account sorry you don’t have a bank account together. You don’t put your pay in there, do you?”
Mr Adess: “No.”
Regarding the redundancy Mr Nicholl said:
“… Now, you’re living in Ms Vernon’s house between 2012 and 2014 and you accept a redundancy of $113,000; is that correct?”
Mr Adess: “$120,000. …$ 122,000.”
Mr Nicholl: “Now, I want to suggest to you that you didn’t …… tell Ms Vernon that you received that sum of money?”
Mr Adess: “That’s not right. That’s not correct.”
Mr Nicholl: “All right. When do you say you told Ms Vernon, before your affidavit in these proceedings, that you received $120,000?”
Mr Adess: “Very soon after. I don’t know that I was, I believe I was specific about the amount or what the amount I expected to receive was, and I told her when I had received it.”
Mr Nicholl: “So when Ms Vernon says in her affidavit first she heard about it was these proceedings, you say she’s wrong?”
Mr Adess: “Absolutely.”
The husband was asked about the nature of his relationship with the wife.
Mr Nicholl: “Right. Now, in relation to child support, you want this court to form a view that the relationship between you and Ms Vernon, the marriage, continued in its purest form and that you were, in fact, reconciled?”
Mr Adess: “I’m asking the court to accept my submission that we recommenced we re-established a domestic relationship since 2004, after the previous property orders.”
Mr Nicholl: “Now, at no stage from August 2004 onwards did you go to the Child Support Agency and say, ‘Hey, I’ve reconciled. I don’t have to pay child support any more”?”
Mr Adess: “Incorrect. I’ve kept an extensive diary of my conversations with the Child Support Agency that I can tender into evidence if required, that several times that explained to them the situation that we were in, we were again living together for most of the time, as I assert, and the Child Support Agency did get tetchy with me and with us both, told me that they were not happy with us both.”
Mr Nicholl: “There were no applications made by you to vary the child support finding?”
Mr Adess: “I had a conversation with Ms Vernon at one point at a couple of points, where I suggested, at the recommendation to me and my conversations, my diarised conversations, and the numbers recorded from the Child Support Agency, that we should, because we were living together again, have a registered agreement.”
Mr Nicholl: “But whatever you said to the Child Support Agency, they still assessed you to pay child support?”
Mr Adess: “Yes, they did.”
Mr Nicholl: “And you made no application to any tribunal or court to vary that assessment on the grounds of your relationship being restored?”
Mr Adess: “No. May I explain why?”…. Because the nature of our relationship was one minute so happy and comfortable and the other the next so volatile and this is a statement that rings in my ears forever. When I mentioned to Ms Vernon the fact that I was under duress in paying $1300 a month, and this is after the voluntary redundancy, at which point I was entitled to reduce to apply to reduce the amount, given I had taken a voluntary redundancy, I put that to Ms Vernon and suggested that it was inappropriate to continue to pay that amount and that we should have a registered agreement, and Ms Vernon’s words precisely, or very close to the effect, were, ‘If you go anywhere near the Child Support Agency again under these current circumstances, I will divorce you.’ And that, as I perceived it, a threat, I didn’t find it intimidatory (sic) but I did believe that one of the things I was desperately trying to achieve in bringing our family back together was to not rock the boat and not have fallout on the children that would be an unhappy situation for them. And, whilst Child Support Agency was very unhappy with my methodology”
He said she made that statement approximately between that July and September 2013. He had conceded before the Registrar the parties were separated in 2012.
Mr Nicholl suggested “I suggest to you that you lived in the house as an act of grace and favour which allowed you to see your children?”
Mr Adess: “I don’t agree with Ms Vernon’s interpretation on that. I took it in good faith that I was invited to be there because we were attempting to reconcile our relationship, and I believe I have documentary ways to – to illustrate that.”
Mr Nicholl: “Well, the relationship was so poor that you lived at different premises you kept separate premises between 2004 and 2012?”
Mr Adess: “That was partly due to the fact that I had to travel to (omitted) for work and was partly due on Ms Vernon’s insistence, more often than not after an argument, but not my not my preference, although”
Mr Nicholl: “But she would ask you to leave the house …”
Mr Adess: “On occasions”
The husband rejected the assertion by Mr Nicholl that his stay in the wife’s home was primarily about the children. He denied this and said he loved his wife and it was about the domestic situation and “marriage.” I do not accept that evidence. On his own account he said he was “attempting to reconcile the relationship.” The wife indicated in her view the husband was “delusional” about the nature of their relationship. Having heard him give evidence I am inclined to that view. At the trial he continued to hold the belief that there was still some prospect of their relationship continuing notwithstanding they had been divorced for more than two years.
Regarding the clause in the parenting orders that allowed the wife to accompany the children when the husband visited, Mr Nicholl suggested this was appropriate given the ages of the children. The husband replied:
“we had many outings at that early stage when typically, to the big (omitted) and the (omitted), where we had very happy times together. I welcomed her to be there. The only condition on that clause, Mr Nicholl, was that she not interfere with my time with the children. From time to time she did interfere, but overall, and notwithstanding, I loved the fact that she came on those outings. We had barbecues we played together; we had a good time.”
Mr Nicholl: “But that’s about the children; it’s not about your relationship?”
Mr Adess: “For me it definitely was about my relationship. I was doing all this, strange though it may seem, and who’s to say what’s normal in any relationship, through all the turbulence…I still adored my wife and loved my wife and I still have that regard for her. I have no problem saying that. I can put my hand on my heart and say it. It’s very unfortunate that our both our natures seem to be so capable of such, you know, touch the litmus powder and up goes the explosion. I very much love Ms Vernon. I accept the circumstances we’re in now, with deep reluctance and deep deep sorrow, but I contend that I have always, absolutely, every day I breathe, done my best to be a good man”
Mr Nicholl: “Now, did you say at any stage through 2004 to 2014, did you say to Ms Vernon that you make a threat to her that you would make an application to the court for custody of the twins?”
Mr Adess:“I wouldn’t regard it as making a threat. I made a statement that, if we weren’t able to get along because of when circumstances were difficult, I thought that was bad for the children and I thought, with my commitment to the children, it would be a good thing if they spent half the week with me or a portion of the week with me and a portion with her, but in a functional way that let the children develop well, knowing both parents. So I did make that that statement, but it wasn’t a threat. It was never intended as a threat.”
Mr Nicholl: “And how many times did you discuss with the mother reframing the consent orders, the parenting consent orders?”
Mr Adess: “Several. …. I documented and we documented suggestions about what we would do this week or that week. Ms Vernon made up little timetables suggesting “this week why don’t we do this, this and this” and the following week I would say “why don’t we do that, that and that”. We wrote it down several times. ”
Mr Nicholl: “And right through the relationship, Ms Vernon had a history of asking you to leave the house?”
Mr Adess: “Yes.”
Mr Nicholl: “And on a number of occasions, you would refuse, yes or no?”
Mr Adess: “Yes.”
Mr Nicholl: “Right. And the police would be involved?”
Mr Adess: “Yes, when there were matters that I felt that I had been assaulted over. We both felt that. And I wanted on some occasions, if on her past habit, if she intended to call the police, that I was there to put my point of view.”
Mr Nicholl: “Because she didn’t want to be subjected to either an argument or the risk of physical violence?”
Mr Adess: “I don’t accept that, because I never – I never”
Mr Nicholl: “So she got the police involved because she wanted to remove you from her life?”
Mr Adess: “I don’t accept that either. She got the police involved because she was hostile and in as many knee-jerk reactions as have gone through our whole relationship, once those occurrences took place, we to coin the cliché or the phrase kiss and make up. And I don’t accept that she wanted me out of her life.”
Mr Nicholl: “But your entire history is littered with instances of assault, applications for domestic violence?”
Mr Adess: “Our entire history our entire history is littered with that. I contend that I have never been never been the antagonist.”
There was an incident in September 2014. The husband said “I put my hand on her chest…I pushed her gently, just enough to give myself an exit, a retreat away from what I thought was a coming physical attack.” He denied she fell backwards. He agreed she took steps backwards because of the force he applied. She reported the incident to police and asked him to leave. He agreed that he refused to leave. The wife obtained a DVO and police removed him from the home. The husband claimed that even after this incident the parties were in a domestic relationship during the period he stayed in her home in 2016.
The husband agreed during cross examination that the wife moved to Canberra in 2005 and he remained living in (omitted).
Mr Nicholl said: “And you were separated in this 2005 year?”
Mr Adess: “Correct.”
Mr Nicoll: “And you paid child support. And you would come to Canberra and stay with family members at (omitted), and then in various rental accommodations in (omitted), in (omitted), (omitted) and, indeed, a place in (omitted) in close proximity. Are all of those assertions?”
He denied he lived in (omitted). He agreed he lived in (omitted) and from 2005 to 2012 he maintained premises in (omitted) and also had premises proximate to the A.C.T. living with other persons and not with the wife. He lived in (omitted) and two different places in (omitted), with friends at (omitted) and (omitted) and spent two weekends with relatives in (omitted).
He denied he pressured the wife to allow him to stay in her home claiming it would be in the interests of the children to live under her roof. He agreed he had no front door key to her home. He claimed he had the garage remote. He agreed he kept a separate post office box. He accepted he kept his furniture and effects in his home in (omitted) he said “Well, that was the living was more a living arrangement, because that was the furniture I needed in the in the place.”
Mr Nicholl asked: “All right. So I’m suggesting to you at no stage from 2005 to 2012 was there any wholesale “I’m moving back in with all of my furniture” agreement?’
Mr Adess: “No. I didn’t need to, because it was me that was fundamental to the relationship. And the house was the accoutrement were organised and I was invited there to do that, after we discussed it.”
The husband also presented evidence of his ongoing financial contribution to the wife’s household. This included a tally sheet of household expenses[17] which the husband argued “reveals the good-natured tone, reconciliatory spirit and details of the beginnings of our documental intermingled spending”.[18] The husband explained that the wife was the author of this document but that the comments were his. During cross-examination, the husband said that this table “indicated to me that we had joint financial arrangements in some purposes”.[19] However, the husband confirmed that he was “free to take your $120,000 [his voluntary redundancy payment] and do what you like with it?”“yes, I was”. “And Ms Vernon was free to take her salary and apply it to her purposes?” “Correct.”[20]
[17] Husband’s affidavit dated 12 May 2017, pg 11.
[18] Husband’s affidavit dated 12 May 2017, [13].
[19] Recording of 17 May 2017 at 12:45:50 PM.
[20] Recording of 17 May 2017 at 12:46:05 PM.
During cross-examination, Mr Nicholl also questioned the husband on a document he provided titled “Mr Adess’ financial contributions summary”.[21] The husband accepted that child support payments made up $132,000 of the listed payments and that the further $117,970 was “made up broadly of additional payments to the children and the payment of rent and some household expenses”.[22] The husband agreed that he made contributions to the household on a “user-pays” basis but clarified that this was “occasionally more than user-pays but that’s the definition, yes”.[23] The husband said that the table was intended to be indicative of the kinds of contributions he made to the household during the period, but that he did not have time to provide more evidence owing to his medical incapacity in the week preceding the trial. It was agreed that the parties had no active joint bank account during the post-2004 period.[24]
[21] Husband’s affidavit dated 12 May 2017, pg 10.
[22] Recording of 17 May 2017 at 2:26:30 PM.
[23] Recording of 17 May 2017 at 2:26:10 PM.
[24] Recording of 17 May 2017 at 2:24:38 PM.
Regarding residence in the wife’s home during the 2012 – 2014 period, the husband, in effect, accepted Mr Nicholl’s characterisation that he lived in the wife’s house under licence during this period. He said that he understood that if the wife asked him to leave the home, he would be required to do so. He said “I had no perception of permanence. I hoped for the best and planned for the worst”.[25] The husband agreed that from 2010 onwards, he paid rent to the wife of around $120 - $140 per week, which he would deposit directly into her bank account. During the 2012 – 2014 period this increased to $340 per week.[26] The husband conceded that these amounts are contained within the $117,000 listed in the document titled “Mr Adess’ financial contributions summary”.
[25] Recording of 17 May 2017 at 2:22:00 PM.
[26] Recording of 17 May 2017 at 2:48:06 PM.
The husband presented a raft of evidence regarding his contributions to the children, including to their school fees, school uniforms, gifts and through payment of child support as assessed by the Child Support Authority. It is impossible for me to find that these payments, some of which the husband had a legal obligation to make, go towards establishing the fact that the husband and wife reconciled their relationship in the post-2004 period or that they can be considered “contribution” for the purposes of section 79 of the Act.
The husband agreed he was offered a voluntary redundancy. He agreed he was free to take the $120,000 and do what he liked with it and the wife was free to take her salary and apply it for her own purposes. He received the funds in mid-2013. He did not include that amount in his financial statement. He said He said that this was a “major oversight.” Mr Nicholl suggested that he had deliberately excluded the $120,000 so the Court would view him as having only meagre assets. He denied he deliberately swore a false financial statement. He said he had spent the money so he no longer included it in any asset pool. He spent it on daily living expenses. He said he was still partly employed in (omitted) until July 2013. He paid child support of $1,300 per month.
Mr Nicholl suggested: “Because there were no commonality of property, as you would sorry, is that that’s right?”
Mr Adess:“I think there was some commonality of property, yes.”
Mr Nicholl: “Okay?”
Mr Adess: “I’m wondering whether things like contributions to the school uniforms, listed on this document on page 13 of 23, constitutes property.”
Mr Nicholl: “Mr Adess, you’re not suggesting to this court, are you, that your either moral or legal obligation to maintain your children brings you some benefit?”
Mr Adess: “No. No. I’m trying to understand what you mean by property. And so that I can distinguish the cashflow issues.”
Mr Nicholl: “All right. Well, let’s do before and after. Before the consent orders, you had a home. When you broke up in 2004, you consented to the sale of that home and the distribution of property?”
Mr Adess: “Right.”
Mr Nicholl: “Okay. So at no stage following I’m suggesting to you at no stage following the consent orders being made were there any plans between you and Ms Vernon to buy property together, or buy a home?”
Mr Adess: “No. There were no plans to buy a home.”
Mr Nicholl: “No. And, indeed, you made no plans together for the future?”
Mr Adess: “We did discuss occasionally what we would do in the future. We did not often, but we did.”
Mr Nicholl: “And you purchased a caravan at (omitted)?”
Mr Adess: “That’s correct.”
Mr Nicholl: “Now, and you would go down to the during the years 2012 to 2014, you would go down to the caravan at least once a week for the weekend?”
“Sorry, once a month?”
Mr Adess: “That’s right.”
Mr Nicholl: “And you would live your life down there without the children, without Ms Vernon and spent your weekend, free to do what you were wanting to do?”
Mr Adess: “Give or take. Most well, I wouldn’t say live my life down there. I went down there, …they were always invited.
Mr Nicholl: “Yes. Mr Adess, I put to you that you would spend that it was primarily you that spent a weekend down the coast between 2012 and 2014, each month?”
Mr Adess: “Correct.”
Mr Nicholl: “All right. And you were free to do whatever you would like down the coast, yes or no?”
Mr Adess: “Yes. Yes. Yes.”
Mr Nicholl: “And during the period 2004 to 2012, when you were variously working at (omitted) or during the period of staying at (omitted), you were free to do what you wished? You led your own life?”
Mr Adess: “Could you define led my own life?”
Mr Nicholl: “All right. You were living in (omitted); Ms Vernon was not living with you. I’m suggesting that just excuse me a second, your Honour. You were living at (omitted) in premises fairly much on your own?”
Mr Adess: “No. I often had a flatmate in.”
Mr Nicholl: “Well, but for the but what I mean by that is that Ms Vernon and X and Y weren’t living with you at (omitted) at any stage?”
Mr Adess: “No. Visiting only.”
Mr Nicholl: “Okay. And the visit would be to facilitate contact with the children?”
Mr Adess: “It felt to me like it was more than that. It felt to me that it was contact between all of us.”
Mr Nicholl: “Right. And you’re familiar with order 7 of the consent orders, which allowed Ms Vernon to be there, and that was during your contact periods?”
Mr Adess: “Always welcomed.”
Mr Nicholl: “Right. And that was appropriate, having regard to the age of the children?”
Mr Adess: “Unquestionably.”
Mr Nicholl: “Okay. And on that same basis, particularly when the children were young, it was appropriate that she come on the holidays?”
Mr Adess: “Absolutely. And always invited. Always willing to come.”
The wife’s evidence was consistent throughout the proceedings. She maintained that final separation occurred in 2004. I accept her evidence that at no time after separation in February 2004 did she hold herself out to be in a continuing relationship with the husband nor as his partner whether domestic or otherwise. I accept that by her conduct in declaring herself as a single person on all official documents and observations made by witnesses when the couple were together, that they were not domestic partners or living in a marriage like relationship after February 2004 nor did the consortium vitae continue after that time. I accept the wife’s evidence that no reconciliation ever took place. I found the wife to be both truthful and reliable for the most part. I accept that the parties both engaged in physical assaults of the other on occasion. I am unable to make any finding as to whether the husband sexually assaulted the wife.
Duress
Regarding his assertion that he was under duress when he entered into the consent orders in August 2004, the husband relied on the wife’s report to Child Protection Services in 2003. In addition he relied on the fact that there was an incident between them where the wife had assaulted him. He said in cross examination:
“I felt that the combination of that and the assault matter that followed in 26 January, the issue of 2003 was never formally identified to any organisations that would have had to bring due diligence: not to police; as far as I’m aware, not to New South Wales child protection I would like further and better particulars about that because Ms Vernon said she reported it. I was never, ever questioned by anyone in a formal sense in relation to that incident. At my request, it wasn’t I didn’t try and bludgeon Ms Vernon or cajole her. I requested that she didn’t make a report to the local social worker, who we did speak to, because I specifically said to her it was completely unrelated to anything to do with the children and related to our sexual my and Ms Vernon’s sexual behaviour the night before.”
In August 2003 the wife had made a report to the Child Protection Agency about the husband masturbating in front of the children. He said that after that time the parties started living together again.
He said that the Child Protection Agency had dealt with the allegation and the case was closed. He was told by the child protection team “Congratulations Mr Adess we do not see many fathers in here as committed and loving to their children as you. You’re a great dad. Keep up the good work.”
He claimed the wife’s report to child protection in 2003 was:
“used against me and unjustifiably skewed the outcome of orders I agreed to under huge duress in 2004. I believe the orders were finalised without all relevant information being adequately put before the Registrar…..I had engaged an experienced (omitted) lawyer who failed to advocate adequately to the Registrar whom I thought was a bully at (omitted). Ignorant of Family Law intimidated by my lack of experience, still deeply traumatised by and suffering from assault and the disappearance of my children in previous months I had limited funds but deep regrets that I did not reject the consent orders as they were put to me……the orders did not facilitate overnight time with the twins, yet within a year Ms Vernon and I stopped adhering to them in our day to day behaviour.”
In addition he said:
“Ms Vernon was charged with occasioning two counts of actual bodily harm to me. And that that charge was heard in (omitted) some months later and the two charges of actual bodily harm I accepted Ms Vernon’s guilty plea to one charge of common assault. She, therefore, gained no criminal conviction.”
Mr Nicholl asked the husband “When did you first form the view that you had suffered from some duress in relation to the consent orders?”
Mr Adess: “Well, from the period where we first went to court on the assault matter and right through the period from the first incident you referred to in 2003, deep duress for fear of the implications, because I know in my heart that I have no absolutely no inclination towards sexual behaviour towards children, so for a person”
Mr Nicholl: “And are you and so, as early as 2004, after the consent orders were entered into in August, you had this continuing view about duress?”
Mr Adess: “Yes and I have to this day.”
Mr Nicholl: “And between August 2004 and the filing of these applications you’ve done nothing to approach the court to have those orders remedied?”
Mr Adess: “No, I haven’t……Ms R handed me a fait accompli and failed to properly represent me at the conference with the registrar. Her service was unsatisfactory. She also failed to recognise or pursue Ms Vernon’s breach of the AVO not to interfere with my property when she”
Mr Nicholl: “So you’re suffering from duress but you wait 13 years to make any application to the court to remedy that?”
Mr Adess: “Well, I didn’t I hadn’t I I’ve got no very limited knowledge and, under the circumstances, where I was trying to where I believe we re-established our relationship, I didn’t rock the want to rock the boat. It was always difficult enough, given the nature of our tumultuous relationship, that I wanted to do my best to not stoke over old fires. I knew that, because no action had been taken at the time, and I felt that it was invalid and I felt that I”
Mr Nicholl: “Mr Adess, I asked you whether you ……….approached the court to remedy this situation of which you feel undying duress?”
Mr Adess: “I feel like I’m being badgered, Mr Nicholl.”
Has the ground of duress been established
There is no evidence before the Court sufficient to establish that the husband was under duress at the time he entered into the consent orders. The husband claimed duress on the basis of the two incidents referred to above. The husband’s argument on this issue was very difficult to make out,[53] it likely came down to an assertion that the 2003 incident was overblown by the wife and used to shame him into agreeing to the consent orders. However in his evidence the husband said he had been exonerated by Child Protection Services and praised for his parenting skills. With regard to the assault incident, the only sensible way to interpret the husband’s argument is to construe the wife’s conviction for assault as evidence that the husband was concerned for his physical safety in her presence.
[53] The husband’s oral evidence regarding his duress argument begins in the recording of the 17 May 2017 proceedings at 12:01:44 PM.
Neither of the above arguments support a conclusion that the husband’s will was overborne at the time he entered into the consent orders. Nor was there any evidence that the wife took unfair advantage of him at that time. Given the requirement to apply the Briginshaw (supra) standard to any determination of the facts, in my view the husband has failed to establish the ground of duress.
Incompetence of Previous Legal Representation
The husband deposes that:
“… I believe the [Consent] Orders were finalised without all the relevant information being adequately put before the Registrar. I had engaged an inexperienced (omitted) lawyer just starting her practice, who failed to advocate adequately to the Registrar whom I thought was a bully at (omitted).[54]
[54] Husband’s affidavit dated 20 April 2017, [90].
He further says that “Ms R handed me a fait accompli and failed to properly represent me at the conference with the Registrar”.[55]
[55] Husband’s affidavit dated 20 April 2017, Replies [63].
These comments aside, nothing further was said in any other evidence or at the hearing regarding the issue of the husband’s legal representation at the time of the 2004 consent orders. The property orders were fully executed. They were not appealed. The husband’s complaint about his legal representation could well have been pursued through the N.S.W. Law Society at that time. There was no evidence that any complaint was raised at that time regarding his solicitors conduct. Given the paucity of evidence presented, it is impossible to make any finding on this issue that the husband’s legal representative was incompetent to the degree required by the authorities referred to in this judgment. That ground has not been made out. As such there is no evidence to constitute a miscarriage of justice for the purposes of section 79A(1).
Though it is not a relevant consideration in this matter, insofar as the husband complains about the parenting orders, he had ample opportunity to bring an application to vary those orders should he have desired to do so. In my view he used the orders as a mechanism for pursuing the wife “relentlessly” as she contended for over many years.
Did the parties act in a manner such that there is implied consent by both of them to set aside the consent orders made in 2004
I accept the wife’s evidence in this case. I am satisfied that the consortium vitae broke down in February 2004. I find that the wife formed an intention to sever the relationship in 2004 and acted upon that intention when she left the Property B home. The parties signed final consent property orders on 5 August 2004. Those orders were fully implemented.
The term “separation” has been dealt with in Todd & Todd (No 2) (1976) FLC 90-008 at 75,079 and Pavey & Pavey (1976) FLC 90-051 at 75,211 to 75,213.
““Separation” means more than physical separation – it involves the breakdown of the marital relationship (the consortium vitae). Separation can only occur in the sense used by the Act where one or other of the spouses form the intention to sever or not to resume the marital relationship and act on that intention or alternatively act as if the marital relationship has been severed. What compromises the marital relationship for each couple will vary. Marriage involves many elements some or all of which may be present in a particular marriage – elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and in private relationships and the nurture and support of the children of the marriage[emphasis added]”
I find that the wife did not form any intention to resume the marital relationship at any time after August 2004. Nor did she act upon any intention to resume the marital relationship or reconcile after that time. There was no recognition of the existence of the marriage by either or both spouses in public or in private after 2004. Between 2005 and 2012 the husband lived and worked in (omitted) and concurrently rented accommodation in the Canberra area to facilitate spending time with the children. Though he stayed in the wife’s home from time to time, the husband did so for convenience to maintain his relationship with the children and spend time with them.
There was no objective evidence that the husband considered himself married. His own evidence about the relationship was inherently contradictory. He denied there were periods of separation then later conceded periods of separation. He claimed he was in a domestic relationship with the wife whilst legally married to her. He maintained a separate residence for the duration of the period he alleges the parties “cohabited” and maintained a separate post office box. He occupied the wife’s home on a pro rata landlord and tenant basis from time to time to facilitate spending time with the children.
There was insufficient evidence to support a reconciliation had occurred between the parties for any identifiable period of time. The fact that the husband stayed in the wife’s home for a few days over some months to spend time with the children does not in my view lead to the conclusion that the parties had reconciled. Nor does the fact that they had sexual relations twice a year between 2005 and 2010 where the wife contends she was sexually assaulted by the husband on some occasions. The husband’s statements that he had “given up on the marriage”, “we both kept trying and gave up periodically”, “I had faith we might restore our relationship so there would be no need for (his property application)”, “I had no perception of permanence I hoped for the best and prepared for the worst” and “we attempted to reconcile” in my view confirms there was no reconciliation between the parties and no resumption of the marital relationship.
There was insufficient evidence to support the conclusion that the parties by their conduct intended to bring their final property orders to an end. Had the husband applied his inheritance to discharge the wife’s mortgage or applied his redundancy money to pay for the landscaping of the wife’s property, this may have been construed as a financial contribution by him. His own evidence was that the wife requested that he fund her $100,000 landscaping project and he had refused. I reject this evidence and accept the wife’s evidence that at no time did she make a request he contribute to her landscaping project financially and I accept her evidence that she was unaware of the amount of any redundancy received by the husband until she read about it in his affidavit material.
I find that the parties did not intermingle their finances, they had no joint assets or liabilities, they had no joint bank accounts nor did they have access or control over the other’s income, inheritance or redundancy moneys. The only semblance of agreement between the parties was that the husband was a nurturing and caring parent to the twins.
I find that the parties expressed no joint future goals or aspirations. The fact that the husband met his legal obligations for his children financially in paying child support and providing additional funds for the children as he considered appropriate does not lead to the conclusion that the parties resumed the marital relationship.
In my view this matter can be distinguished from Waterman (supra).
(a)Waterman concerned parties who cohabited on a full-time basis for approximately 12 years post-reconciliation. It is agreed that the husband did not live permanently at the wife’s home between 2005 and late 2012. He concurrently rented other premises and maintained full time work and a home in (omitted). He conceded the parties had separated between October 2012 and September 2014 during the period he lived in the wife’s home full time;
(b)There was little very evidence presented by the husband concerning any contributions he made to the wife’s home or to the household separate from child support and other payments (school fees, uniforms etc) relating to the children. In fact, the wife’s evidence (with which the husband agreed during cross-examination) was that a ‘user pays’ arrangement existed with respect to utilities and that the husband paid an amount of rent whilst in the wife’s home.
(c)In Waterman it was not contentious that the parties, at least at some stage, recommenced a romantic relationship. Conversely, the wife in the present matter fundamentally disputes that the parties resumed their romantic relationship at any point between 2005 and 2012. The wife’s witnesses support her evidence that there was no mutual display of affection and neither party presented as being husband and wife or in a relationship. Nevertheless, as stated by Murphy J, ‘[r]econcilliation is not, of itself, sufficient for a finding that the parties had impliedly consented to the setting aside of a s 79 consent order’.[56]
[56] Waterman [2017] FAMCAFC 23 [66].
The husband has conflated the consent parenting orders with the final property orders opportunistically in my view in an attempt to use his involvement with the children and his participation as a co-parent to make a claim against the wife’s assets. I am satisfied that he has at all times over the ten years following final separation in 2004, made lifestyle choices independently of the wife, some of which unfortunately have impacted on his current financial position. I am not satisfied that the parties reconciled and re-established the marital relationship at any time after February 2004. I do not find that there was implied consent by both parties to set aside the consent orders made in 2004. I decline to exercise a discretion to set aside the consent orders.
I certify that the preceding two hundred and five (205) are a true copy of the reasons for judgment of Judge Tonkin
Date: 23 October 2017
0
13
2