Allsop and Allsop
[2019] FCCA 309
•11 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALLSOP & ALLSOP | [2019] FCCA 309 |
| Catchwords: FAMILY LAW – Property – final property adjustment – Kennon argument – section 75(2) adjustments – consideration of financial and non-financial contributions – consideration of the inclusion of add-backs. |
| Legislation: Family Law Act 1975, ss.4AB, 75(2), 79(4) |
| Cases cited: Stanford v Stanford [2012] HCA 52 Sahrawi & Hadrami [2018] FamCAFC 170 Marando v Marando (1997) FLC 92 – 754 Kowaliw & Kowaliw (1981) FLC 91-092 |
| Applicant: | MS ALLSOP |
| Respondent: | MR ALLSOP |
| File Number: | PAC 1130 of 2018 |
| Judgment of: | Judge Harman |
| Hearing dates: | 9, 10 and 11 January 2019 |
| Date of Last Submission: | 11 January 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 11 January 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Dart of Counsel |
| Solicitors for the Applicant: | Coleman Greig Lawyers |
| Counsel for the Respondent: | Mr Rosic of Counsel |
| Solicitors for the Respondent: | Turner Freeman Lawyers |
ORDERS
That, an Order by way of alteration of property interests pursuant to s.79 of the Family Law Act 1975 (Cth) be made in terms of paragraphs 2 to 6 of this document in order to address the consequences of the breakdown of the marital relationship and the injustice that would occur given the circumstances of the relationship if legal and equitable title were not altered.
That within twenty-eight (28) days of the date of these Orders the Husband shall do all things necessary to vacate and provide vacant possession of the property situated at and known as Property A, in the State of New South Wales (being the whole of the land contained in Folio Identifier … (“the Property A property”) and that the Wife shall have exclusive occupation of the Property A property and the Husband or his agents shall not enter upon the Property A property.
That within seven (7) days from the date of the making of these Orders, the Applicant Wife shall do all act and sign all documents necessary to market for sale and sell the property situated at and known as Property B, in the State of New South Wales (being the whole of the land contained in Folio Identifier … (“the Property B property”) for the best price reasonably obtainable and that the proceeds of sale be disbursed as follows and in that priority:
(a)to discharge any loan secured by way of mortgage over the title to the Property B property;
(b)to pay the costs of sale including agent's commission and auction expenses;
(c)the costs and disbursements of the lawyer acting on the sale of the Property B property;
(d)usual adjustments as between vendor and purchaser.
That, simultaneous with the settlement of the sale of the Property B property pursuant to Order 3 above, each party shall do all acts, sign all documents and provide the appropriate consent for all things necessary to cause the following to occur simultaneously:
(a)Transfer the Property A property to the sole name of the Wife at the Wife’s cost, such that the Husband shall sign all documents presented to him by the Wife and the Wife shall do all other things necessary for such transfer;
(b)To distribute the net funds remaining from the sale of the Property B property per order 3 to Mr Allsop or as he may direct in writing the sum of $260,000.00 as to the balance to the wife.
That, pending transfer of the Property A property provided for in Order 4 the Wife shall be responsible for all mortgage payments, statutory rates and charges, other utilities, insurances, outgoings and expenses in relation to the Property A property incurred prior to the date of transfer and shall make all such payments as and when they fall due and hereby indemnifies the other party in respect of all other liabilities incurred prior to the date of transfer.
That, as between the parties, the Wife shall retain, to the exclusion of the Husband, her right, title and interest in the property situated and at and known as Property C in the state of New South Wales (being the whole of the land contained in Folio Identifier…) (‘the Property C property’) and the Wife hereby indemnifies and shall keep indemnified the Husband in relation to all mortgage payments, statutory rates and charges, other expenses and liabilities in relation to the Property C property whenever and however arising.
That, as between the Husband and Wife, and subject to the above Orders the Husband and Wife shall each respectively retain all interest in and entitlement to:
(a)All personal property now in his/her respective possession or control;
(b)All funds held in bank accounts held in his/her name respectively; and
(c)All superannuation funds standing in his/her sole name respectively.
That, in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of these Orders, then the Registrar of the Court shall be appointed pursuant to Section 106A of the Family Law Act1975 (Cth) to execute such deed, document or instrument in the name of the said party, and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of Affidavit.
The Court notes that, pursuant to Section 81 of the Family Law Act1975 (Cth) the parties intend these Orders to finally determine all financial relations and issues between them and avoid further proceedings between them.
That each party shall do all things necessary including providing all consents to give effect to these orders in the time periods prescribed in these orders.
Liberty is granted to Mr Allsop to apply on 14 days’ notice in the event that he should wish to agitate any Application regarding sale of the Property B property and prefaced upon allegation that the wife is not complying fully or expeditiously with her obligations to appropriately list to market and sell the property.
THE COURT NOTES the undertaking of Ms Allsop that she will keep Mr Allsop and/or his legal representatives informed at all times of offers to purchase made with respect to the Property B property.
THE COURT NOTES that an Application for costs is pressed by the Applicant.
Adjourn that Application to 18 April 2019 at 11.30am.
Applicant wife to file and serve a minute of orders sought and an outline (no more than 6 pages) of submissions by 15 February 2019.
Reply thereto (with similar limitation in length) by 22 March 2019.
By consent Orders are made in accordance with the Terms of Settlement executed by the parties marked Exhibit ‘A’ attached hereto.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena or pursuant to section 69ZW of the Family Law Act 1975 be returned to the person or organisation who produced same or securely destroyed.
EXHIBIT A
BY CONSENT IT IS ORDERED:
That the Wife retain the following chattels to the exclusion of the Husband:-
(a)The Wife's bed frame and mattress;
(b)Fridge and freezer located in kitchen;
(c)Television located in the loungeroom plus HD recorder/DVD player;
(d)All kitchenware;
(e)All potted plants and bonsai plants;
(f)All photos of the Wife and children;
(g)All Wife's jewellery;
(h)One self-propelled lawn mower;
(i)Sewing machine and overlocker;
(j)Linen and towels from the Wife's bedroom;
(k)Coffee table built by Mr F;
(l)Dresser with mirror built by Mr F;
That the Husband retain the following chattels to the exclusion of the Wife:-
(a)Fridge and freezer located in the garage;
(b)Lounge set;
(c)Dining room table and chairs;
(d)Washing machine and dryer;
(e)Husband's tools;
(f)Wine making equipment;
(g)Wine stored in the cellar;
(h)All contents of his bedroom (other than any chattels provided for in Order 1);
(i)Wall unit and bed from Mr E and Mr F’s bedroom;
(j)Edger;
(k)Box trailer;
(l)Dog;
(m)Husband's jewellery;
(n)2 lawn mowers;
(o)Linen from his bedroom;
(p)Wedding photos.
AND THE COURT NOTES
A. That the parties agree that all personal possessions (other than the wall unit and bed located in the bedroom of Mr E and Mr F) belong to the children or any of them or of the parties grandchildren will remain the property of, and be provided to, the child or grandchild to whom they belong.
IT IS NOTED that publication of this judgment under the pseudonym Allsop & Allsop is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 1130 of 2018
| MS ALLSOP |
Applicant
And
| MR ALLSOP |
Respondent
REASONS FOR JUDGMENT
These proceedings relate to issues of property adjustment between a husband and a wife:
a)The Applicant Ms Allsop, the wife; and,
b)The husband and Respondent Mr Allsop.
This Judgment is delivered on an ex tempore basis on the afternoon upon which the evidence in these proceedings concluded, being a third day of trial, the matter having been listed for two days. That is not raised as a criticism of either party, their Counsel or instructors. It is simply the reality, particularly taking into account numerous interruptions that arose in the course of the hearing and, importantly, the appropriate and vigorous, if not zealous, cross-examination of the parties.
This Judgment is delivered on an ex tempore basis for no greater purpose than the benefit of the parties, and to some extent, perhaps equal or not greatly less, that of the adult children of the parties or such of them as remain present.
This has been a difficult case to hear, not because the facts are dramatically complex or the legal issues presented difficult, but because the evidence, particularly that of the wife and that of the three adult children of the parties, who all gave evidence in the wife’s case, has been emotive, to say the least.
These reasons are given on an ex tempore basis so that the parties and their adult children might hear them rather than reading sterile words upon a page. I do not suggest that there will be any particular or dramatic effect given to the delivery of the reasons. However, I believe that it is important, for therapeutic purposes, if nothing else, for the parties, one or both, to hear these reasons aloud. There is an art of oratory as which is, as Gormly SC opines, lost and which removes context when proceedings are dealt with in writing or “on the papers”.
I would not deliver these reasons on an ex tempore basis if I did not feel that I had an adequate understanding and grasp of the evidence of the parties. I have been greatly assisted in coming to grips with the evidence, and importantly, the legal issues, which are to be applied to that evidence, through the erudite and competent conduct of these proceedings by Counsel for each of the parties.
Some comment must be made thereupon, particularly, again, for the benefit of the parties and each of them, in light of the orders that will ultimately be made by me.
I have described the evidence in this case as difficult and challenging. I make clear, from the outset, that I accept that Ms Allsop and each of the three adult children of this relationship, during their childhood, experienced significant family violence at the hands of Mr Allsop, Ms Allsop’s husband, the children’s father.
The Court does not and cannot make decisions by reference to misericordia. I do not emphasise the difficulty of hearing the evidence, the humanity demonstrated by each of those witnesses, for any purpose other than to return to the issue of the manner in which this case has been conducted by Counsel.
As Julian Burnside has often opined, it is the role of Counsel, indeed, fundamental to the administration of the rule of law in a democratic society, to competently represent all and to address issues in their litigation zealously, to advocate zealously and to ensure that all propositions are appropriately presented and tested, as the erstwhile American commentator Harry Browne has opined.
As Julian Burnside has also opined, it is important, within that context, that even “unpopular people and unpopular causes are represented”. I do not suggest that Mr Allsop is unpopular, although clearly he is with his adult children. His relationship with them has broken down completely. I make reference to Mr Burnside SCs comments as, in this case, it would be tempting to suggest that because issues that are raised in a case are difficult to deal with, difficult to hear or unpalatable, that they should not be addressed, that a party should simply remain silent with respect to those issues out of a sense of respect or otherwise.
Counsel for Mr Allsop could not have conducted Mr Allsop’s business more competently, thoroughly and appropriately. The ethical duties of the Bar, developed over some centuries, have been demonstrated in this case. On a number of occasions, particularly whilst the two male children of the relationship were testifying, it was quite clear that the witnesses were upset, demonstrated by the manner in which they responded to questions put by Counsel.
Counsel indicated, on a number of occasions, that he was required by their instructions, indeed, by the duties imposed in conducting Mr Allsop’s case, to put the propositions, unpalatable as they were. I accept that this would have been taken, received and perceived by the witnesses as offensive. They should not see it that way. This is how this process works. The adversarial trial is far from perfect. It is perhaps completely unsuited to the conduct of family law litigation, particularly parenting proceedings, but they are matters for others and for other times and other fora.
The adversarial trial is designed to arrive at “the truth”, with all of the difficulties that this very proposition holds in cases such as this where the truth is, to a large extent and at the very least, perceptional or experiential. As has been observed by a number of commentators, there can be coexisting versions of truth that are equally valid.
In this case, the Court’s duty is to get to the truth. To do so, zealous conduct of the case and the challenge of all propositions must occur. It has occurred with as much sensitivity as could possibly have been demonstrated. That is not to suggest that Counsel for the wife has not been similarly empathetic and permitted Mr Allsop to retain dignity in these proceedings.
The case has been conducted by both Counsel in an exceptional manner. This has lessened what I had, at one point in the case, described as “the torture of cross-examination”. The perceived “torture” was for not only the parties, but all involved. How the case has been conducted, with vigour but dignity, has allowed the ordeal to be significantly lessened, although not completely obviated.
That exemplary conduct, the empathy demonstrated towards the parties and permitting the parties to retain dignity whilst discharging Counsel’s fundamental duty to assist the Court by ensuring that all propositions are appropriately advanced and tested, and all relevant authorities placed before the Court, has made the task in this case far less unpleasant that it might have been.
History of the Proceedings
This matter has reached a relatively expeditious determination. I accept that for these parties, who are living and have, since March 2017, lived separately and apart under the one roof, it has been an eternity. That fact is, perhaps, another motivation for delivering these reasons on an ex tempore basis but not a motivation that would have led to such an outcome but for the fact that I am satisfied, largely through the assistance provided by Counsel, that the facts and circumstances of the case can be properly understood.
The matter was commenced by an Application Initiating Proceedings filed on 15 March 2018, a little under 10 months ago. The matter first came before the Court on 2 May 2018. At that time, Mr Allsop had not filed a Response, although that is not raised as a criticism. There were issues with respect to disclosure raised by one or both of the parties, and accordingly, a number of orders were made to advance the matter including directions for the filing of Response and orders with respect to disclosure.
The proceedings returned before the Court on 16 July 2018. It was on that date that orders for the parties to attend Family Dispute Resolution (or mediation) were made, both parties being satisfied that sufficient disclosure had occurred to enable them to have a symmetry of information sufficient to properly negotiate.
The parties did attend mediation with a highly qualified and competent mediator. They were unable to reach a consensual resolution of their matter through this facilitative process.
The matter then returned before the Court on 25 October 2018. At that point, it was clear that the matter was not resolved. Accordingly, the proceedings were listed for hearing. One of the few benefits of the cancellation of the Courts’ January closedown period was to make dates for hearing available to this case on extremely short notice, only some two and a half months after the mention date.
Both parties complied or substantially complied with filing directions and they are to be congratulated for their own efforts and those of the Solicitors retained by them in ensuring that their material is erudite, concise, confined to issues in dispute and, by and large, compliant, certainly as regards the evidence of the parties themselves, with the rules of evidence, (which, of course, applying, property proceedings whilst not, in their totality, to parenting proceedings).
Issues of Significance
From the outset, I identify that the two most significant issues in this case, that which has consumed most, if not all, of the time for which this trial has proceeded, indeed, which have in all probability impeded any real prospect of resolution of the case, are as follows:
a)The introduction by the wife of what has been styled in the evidence as an “early inheritance” or otherwise a gift from her parents. It is a matter of some significance, the wife having received an inter vivos gift from her parents of $1 million. That represents, as is observed by Counsel for the wife, something in excess of 40 per cent of the present legal and equitable interests of these parties in property;
b)Secondly, the wife has agitated for what has been styled throughout the proceedings, and, thus, I will adopt the terminology of, a “Kennon argument”, an allegation that the wife experienced a course of coercive and controlling family violence throughout the marriage, directed not only towards her but the now adult children and, as a consequence of which, some adjournment should be made with respect to findings of her contribution.
Proposals of the Parties
From the outset it must be made clear that the wife proposes that a two or possibly three pool approach should be adopted and that specific findings should be made such that orders for property adjournment would be made between these parties resulting in the wife receiving 66 per cent of the total assets presently available for division between the parties and the husband 34 per cent.
The husband commenced his case proposing the adoption of a three-pool approach. In closing, and appropriately so, Counsel for the husband urged the Court to adopt a global approach with one pool. The husband agitates for an outcome whereby he would receive, after an assessment of contribution and relevant section 75(2) adjustments, 46 per cent of the total wealth of these parties and the wife would receive 54 per cent.
Summary of Outcome
As I am conscious that this Judgment is delivered on an ex tempore basis and will take some little time, it is important that the parties are not, as it were, left hanging. I do not propose to wait until the conclusion of reasons to make clear the outcome that will be ordered.
I propose to make orders substantially as sought by the wife and for reasons that I intend to elucidate. The orders will result in the wife paying to the husband a sum of $260,000 and consequent orders to secure payment through liquidation of assets if necessary. The wife will otherwise then retain the former matrimonial home.
Present Legal and Equitable Interests in Property
As the High Court of Australia made clear in Stanford v Stanford [2012] HCA 52, the starting point for the Court must be the assessment of the parties’ present legal and equitable interests in property. Thankfully, again, through the good offices of the Solicitors retained by the parties and their respective Counsel, at the conclusion of the evidence a balance sheet is tendered, exhibit A, which sets out the pool of property, as it is described in the submissions of the parties, available for division.
The balance sheet succinctly summarises the legal and equitable interests of these parties. There is controversy between the parties as to the assets, resources and liabilities to be considered, nor the values ascribed thereto.
The total assets of the parties, excluding superannuation, have a gross value of $2,325,587. There is mortgage encumbering one of three parcels of real estate and, when that is taken into account, (being a sum of $245,499), the value of the net pool of property reduces somewhat to an amount of $2,080,088.
The parties also have superannuation entitlements totalling $334,965 of which the wife holds very much the minority amount, a Super Fund 1 of $10,409. The husband holds the larger of the funds, a Super Fund 2 superannuation account, valued at $324,556. There is no controversy between the parties that the husband has reached the necessary conditions permitting release of those funds. Accordingly, I am satisfied that the husband’s superannuation can and should be viewed as effectively cash of bank, although certain steps will be necessary before those funds are released. It is unclear whether there will be any taxation or other consequences arising therefrom.
Material Considered in the Conduct of Trial
Prior to the trial, Counsel for each of the parties provided an erudite Case Outline document which summarises their respective positions, their proposals, and importantly, the material read and considered.
The wife’s case comprises:
a)An Amended Initiating Application filed 14 December 2018;
b)A Financial Statement filed 15 March 2018;
c)An Affidavit by the wife filed 14 December 2018;
d)An affidavit by Ms D filed 14 December 2018;
e)An affidavit of Mr E filed 14 December 2018; and,
f)An affidavit of Mr F filed 14 December 2018.
The husband’s case comprises:
a)An amended Response filed 5 November 2018;
b)A trial affidavit filed 14 December 2018; and,
c)A Financial Statement filed 14 December 2018, (but ultimately replaced by a Financial Statement filed in Court on the first day of trial, 9 January 2019).
In addition, there are a number of exhibits tendered in the proceedings, some of which no longer have or will not have great relevance:
a)Exhibit A1, a certificate of costs paid and incurred;
b)Exhibit A2, a document setting out the effect of the orders proposed by the wife;
c)Exhibit A3, certain statements with respect to a Commonwealth Bank account in the wife’s name;
d)Exhibit R1, a draft balance sheet, although now overtaken by exhibit A;
e)Exhibit R2, a certificate of costs paid and incurred;
f)Exhibit A, the settled and agreed Balance Sheet.
Evidence and Credit
Each of the parties was required for cross-examination, as was each of the three witnesses, the three adult children of these parties.
On the third day of trial, the matter having consumed the two days allocated, and through the good graces of Counsel able to proceed on the following day, a request was made, on behalf of the husband, for the provision of an interpreter. Some limited discourse took place as to whether that application was to be pressed, noting that no such arrangements had been made and, thus, if one was suggested as necessary and required, the proceedings would need to be adjourned. Further costs would have been incurred and no doubt argument as to who would bear responsibilities therefore.
Ultimately the application was not pressed. However, for the sake of completeness and lest there be controversy at some future time, it is germane to observe that none of the documents filed by the husband in the proceedings have contained a jurat of translation. That, of course, is not determinative or dispositive of the issue. It may be that the husband’s skills in written English are better than those on an oral basis.
Secondly, there is no evidence that the husband has ever required or used the services of an interpreter in any other interaction within the proceedings, mention dates, the mediation, or interaction with Attorneys or the like.
Thirdly, no application had previously been made for the appointment of an interpreter although that, again, is far from dispositive. There is a real difference between engagement in the somewhat less formal processes, such as mediation and mentions, and participation in a hearing whilst being cross-examined. The stress that is created for a party in that circumstance is significant and, accordingly, any underlying difficulty with spoken English might be accentuated.
However, lastly, it was put to the husband that in past proceedings in the Local Court and in current and pending proceedings in the Local Court, the husband has not had the benefit of an interpreter. That proposition was adopted.
In those circumstances, I am not concerned that the husband has had any impediment or barrier to participation or understanding in the trial sufficient to warrant adjournment.
Most evidential controversies in the proceedings relate to issues of family violence. It would be fair to observe that the vast majority of cross-examination has related to those issues. That is not, in any way inappropriate, simply to observe the allocation of time. Most other aspects of the matter, relating to the financial history of the parties, are not the subject of any significant dispute.
The husband concedes that the wife predominately cared for the three children of the relationship during their minority and to a high standard, adding when that proposition was put to him, “She put them first before me.”
I accept the evidence of the wife and the three adult children as truthful and I accept them as witnesses of credit. I accept them as accurate historians. Each was cross-examined at length on the instructions of the husband and with respect to a myriad of issues, predominately relating to family violence.
The wife, as was submitted by her Counsel, was unshaken as to her allegations of family violence. Similarly, the children and each of them were unshaken as to their allegations. That is so, notwithstanding that significant portions of their Affidavit material, which it would appear they had a significant role in drafting, had been struck out.
All of the children gave evidence frankly and candidly on topics which, I accept, would have been highly distressing for them, indeed, potentially triggering of further trauma or causative of further trauma. Each of the children and Ms Allsop were clearly emotionally affected whilst giving their evidence. Whilst the two sons, Mr E and Mr F became somewhat agitated, possibly angry with the questions being put to them, and at one point Mr E perhaps verging into sarcasm in his answers, I am not critical of them for that.
It is explicable, particularly bearing in mind the subject matter of their evidence and the matters being put to them. The suggestion that matters that they related as to significant violence perpetrated upon them by their father, commencing from a very early age, were manufactured, concocted, infected in some fashion through discussion with their siblings or otherwise, would have been distressing. For it to be suggested that their recollections were inaccurate was upsetting.
Again, I am not critical of Counsel for Mr Allsop in the vigorous and zealous cross-examination that occurred. It was necessary. It was appropriate. It is how the adversarial process works. It would have been a disservice to Mr Allsop for it to have been otherwise, and again, I am conscious that the vigour of that cross-examination and the breadth of attack upon the matters raised by those witnesses is upon the husband’s instructions, instructions which he is entitled to give and which must be appropriately followed.
I accept that there was some discussion between the children and each of them in relation to their evidence prior to the swearing of their Affidavits. However, I am not satisfied that this was collusive, nor that it contaminated their evidence. As the daughter of the parties Ms D opined, stridently and repeatedly, what was in her evidence was “my own memories”. I accept that it is the same with respect to Mr E and Mr F. They gave their evidence with real vigour and candour, and whilst emotional, I would find it extraordinary if they were not upset. They were not relating events unrelated to them in which they are disinterested. They were relating their life experience.
Their memories of childhood experience dated back in some cases, particular in relation to Mr E, the eldest, over 30 years. I do not accept that their ability to remember, with some degree of clarity, events that occurred when they were five or seven or ten years of age, should question the veracity of their evidence. The events that they were describing were events of significant trauma inflicted upon them by a parent seized with their protection. I am satisfied that they may well have, and in all probability would have and did have, clear and specific recollections of those events.
I accept that Mr E had forwarded his Affidavit to his sister Ms D prior to swearing it. However, I also accept his explanation that it was not to obtain her addition to the document to ensure that their evidence was the same. They spoke of different events, by and large, although there was some commonality. But as he described, the document was forwarded as he required some assistance with spelling, grammar and the like. Again, that is no criticism of him. I simply accept that explanation.
The children were each criticised as being unwilling to concede any positive experience of their father. There is some basis to the criticism. It may well be that there were positive experiences beyond the meagre amounts that were conceded, principally by Ms D and Mr F, described as “very few”, “hardly any”, and the like.
However, I am not satisfied that I could typify the evidence of each of these three, now adult, children as exaggerated or prone to exaggeration. That they have such a negative view and attitude of their father is explicable in light of the evidence that they give and the trauma that they suggest they experienced as a consequence of the events to which their evidence related.
The evidence of the wife and the children is to some extent in contradistinction to that of the husband. In relation to the fundamental and pivotal issue of family violence, the husband’s denial was in absolute terms, “It is all lies.” This is so notwithstanding that a number of concessions were made, including by Counsel for Mr Allsop on instructions from Mr Allsop, that family violence had occurred. Concessions were also made, more importantly and germanely by Mr Allsop. These included the following, although I make clear I do not propose to relate each and every aspect of the evidence that arose during cross-examination:
(1)Mr Allsop concedes that he smashed a cup near his wife and near, whether the same distance or perhaps a greater distance, from one of his granddaughters, the daughter of the adult child Mr E. This was done in anger.
(2)It is clear from Mr Allsop’s evidence, let alone Ms Allsop’s, that that arose as a consequence of a dispute between husband and wife in relation to Mr Allsop seeking to capture a wild galah and Ms Allsop seeking to frustrate that enterprise. As a consequence, that event occurred in the presence not only of Ms Allsop but the six-year old child. That evidence, if nothing else, has some real degree of consistency with the evidence of each of the children as to their father’s behaviour towards them and in their presence when they were children.
(3)Mr Allsop concedes that he locked various parts of the house, and in particular, the garage and the cellar to the property. It was put to Mr Allsop repeatedly that they were locked and the wife did not have keys. Mr Allsop insisted that the wife did. It ultimately became apparent that Ms Allsop had obtained keys by obtaining copies at a point in time relevantly recent when Mr Allsop was hospitalised. Certainly, Mr Allsop did not provide those keys.
(4)Mr Allsop conceded, initially through his Counsel and early in his evidence, that he had broken at least two of the wife’s radios over the history of the marriage. The wife asserts that it is five. However, Mr Allsop’s evidence changed in relation to the radios and was somewhat dismissive of the action in itself. What is clear is that Mr Allsop was dissatisfied with Ms Allsop listening to the radio.
(5)Ms Allsop’s evidence, which I accept, is that she predominately listened in a different room and that listening to her favourite programs on the radio brought some welcome relief to what was otherwise a fairly unpleasant marriage for her and certainly the three children. It may well have also been unpleasant for Mr Allsop, but one could not imagine, on the evidence, to anything approaching the same extent.
(6)Mr Allsop at one point sought to disavow his earlier concession in suggesting that it was possible that one of the radios that he had earlier conceded he had broken might have been broken by Ms Allsop having dropped it on the concrete. I accept that at least two if not all five radios were broken by Mr Allsop in fits of rage.
(7)Fourthly, the husband conceded, albeit on only one occasion, that he had ever perpetrated something that could possibly be described as family violence towards the wife, that having occurred on Good Friday 1990. He described that he pushed his wife on that occasion but was quick to add, “It was to defend myself. She was trying to scratch me.” I do not accept that Mr Allsop’s evidence could be accepted in that regard either as to the frequency upon which violence occurred or the suggested explanation for why it occurred.
(8)Fifthly, Mr Allsop denied that he had ever followed his wife or deliberately sought her out. However, Mr Allsop then added, in a fashion almost non-responsive to any question put to him, “I just went to see if she was there meeting a man or a woman.” That might suggest that he had sought her out, if not followed her to that venue. I accept that he did.
(9)Sixthly, Mr Allsop conceded that prior to 2012 and other than whilst he was in Country 1, that Ms Allsop had no access to the account into which his wages were paid as the sole income earner for the household. His evidence was that whilst he was away overseas, he would provide the key card for the account to Ms Allsop so that she could access the account and pay the bills. After 2010, and in particular, attendance of Police at the property on that occasion, a card was then provided to Ms Allsop.
(10)Seventhly, Mr Allsop denied that he had ever insisted that Ms Allsop account for withdrawals or use of funds withdrawn from the account after she had access to it or after he had provided access to the account to her. He added, however, “If she took too much out, I would ask her about it then.” It is unclear how much “too much” was. It would seem more than either the agreed or dictated amount. It is not dispositive of any particular issue, but it does sit uncomfortably with Mr Allsop’s denial as to how finances were managed in the relationship.
(11)Eighthly, Mr Allsop denies throwing plates or breaking objects at any time, leaving aside the discussion above of the wife’s radios. Mr Allsop did concede that, on one occasion, he had swept a plate from the table, but suggested that, at other times, when he was dissatisfied with the meal prepared for him by Ms Allsop, that he would take it outside and tip it on the lawn for the dog to eat. Whether the plates were thrown, and I accept that they were, or whether the meal was simply taken outside and tipped on the lawn, not fit for his consumption but that of the dog, must have been distressing and certainly would be indicative of family violence.
(12)Lastly, for the purpose of these illustrative examples, much was made by Mr Allsop of his denial that he had ever pulled or ripped from the wall the phone at the home in response to the wife threatening to call Police. Mr Allsop suggests that he had calmly unplugged the phone in response to such a threat. I find that evidence difficult to accept, and in all probability, disingenuous. It is contradicted by the children’s evidence which I accept.
In conclusion, I accept the wife and the three adult children of this marriage as truthful witnesses and accurate historians. When there is difference in the evidence of the wife, the children and/or Mr Allsop, I accept and prefer the evidence of the wife and the children. I make findings of fact in accordance with their evidence contained within their Affidavits with respect to those matters of family violence.
I do not seek to further relate that evidence or incorporate it within these reasons. The evidence is set out within those documents and in the event of appellate controversy, is readily available as the Court’s findings by recitation therefrom. There is no purpose to serve in requiring the parties and their children to listen further to those allegations. They are fully aware of what they are. They lived them.
I am satisfied that specific findings as to violence which has occurred must be made consistent with the Full Court’s decision in Sahrawi & Hadrami [2018] FamCAFC 170 if nothing else. It is on that basis that I have identified the acceptance of the wife’s evidence and that of the children and made findings in accordance with their evidence.
With respect to the balance of the evidence in the proceedings, as I have already indicated, there is far less contention. The parties agree on the basic chronological aspects of their relationship and, by and large, agree with respect to the financial aspects of their relationship. Accordingly, I incorporate herein as the Court’s findings of fact, the chronology of events provided in the Case Outline prepared by Counsel for the wife. That will represent the facts of this case henceforth.
| Date | Event | Source |
| 1953 | DOB: Mr Allsop (husband), aged 65 | W. 4 |
| 1958 | DOB: Ms Allsop (wife), aged 60 | W. 3 |
| 1975 | Parties commence a relationship | W. 5 |
| 1975 – 2015 | Husband employed as a tradesman. Throughout the duration of the parties’ relationship, the husband’s wage was paid into an account in his sole name. | W. 129 |
| 1977 | Date of marriage. Parties commence cohabitation. | W. 5 |
| 1977 – 1980 | Parties live with the wife’s parents in a granny flat attached to their property. The parties make no financial contribution to the wife’s parents during this period. | W. 131 |
| 1977 – 1980 | Wife works full time as a tradesperson, earning approximately $7,000 per year. | W. 122 |
| 1979 | During an argument, the husband motioned to the wife with a clenched fist, but for his index finger and little finger, and threatened to rip her eyes out. | W. 22 |
| 1980 | Parties purchase Property A for $44,500 plus legal costs. The property was purchased using joint savings, with the balance obtained by way of a mortgage with the CBA for $12,000. | W. 133 |
| 1980 | DOB: Mr E (child of marriage), aged 38 | W. 7 |
| 1980 | Husband commences doing the grocery shopping so that he did not need to provide the wife with money. This continued until 1997. | W. 66 |
| 1982 | Parties discharge the mortgage over the Property A property | W. 134 |
| 1982 | DOB: Mr F (child of marriage), aged 36 | W. 7 |
| 1982 | Husband attends the hospital to collect the wife and Mr F following his birth. The husband was angry and smacked Mr E 4 times. In the car on the way home, the husband demanded that the wife not see her father again, that if he comes near the house the husband will kill him and that her parents are not allowed to see the children. Wife thereafter does not see her father for approximately 18 months | W. 24 W. 27 |
| 1982 | When the wife approaches her parents following Church to have a conversation with them, the husband snatches the basket Mr F was being held in and then stormed off with Mr E or Mr F, leaving the wife behind. | W. 32 |
| 1985 | DOB: Ms D (child of marriage), aged 33 | W. 7 |
| Good Friday 1990 (approx.) | Husband assaults the wife by slamming her into the wall with his hands before proceeding to put them around her neck and squeezing with a firm grip so that the wife could not breathe. The husband threatened to burn the house down with everyone in it. Wife attempts to call the police, however the husband ripped the telephone out of the wall bracket. | W. 33-34 |
| 1990 – 1996 | Wife works as a tradesperson in a Nursing Home in Suburb G on a part-time basis plus regular overtime. | W. 124 |
| 1990 | Husband tried to initiate sexual intercourse immediately following her having an epileptic seizure. When the wife refused, the husband proceeded to masturbate next to her. On a further 3 occasions, the wife regained consciousness following an epileptic fit to find the husband touching her breasts or masturbating. | W. 97-98 |
| 1992 | Husband stomps on Mr E’s hand 6 times whilst wearing steel capped boots, after he and Mr F were arguing about a game of monopoly. When wife intervenes to protect Mr E, the husband yells at her “you shut the fuck up or you’ll cop it”. Mr E’s thumb was broken as a result of this assault. | W. 57 |
| 1995 | When questioning the wife about who she had seen that day whilst the parties were lying in bed, the husband kicks the wife 4 times to the calf, pushes her to the end of the bed and struck her shoulders and chest with his hand. He then got out of bed and struck the wife’s face with a pillow with such force that it caused her pain and hurt her neck. | W. 36 |
| 1996 | Wife injures her back at work. As a result of this injury, the wife was not able to engage in regular sexual activity with the husband, causing the husband to become increasingly frustrated, angry and short in his interactions with the wife. | W. 100 |
| 1997 – 2009 | Husband regularly accuses the wife of having an affair with their neighbour, Mr H and would routinely call her a “slut” and a “whore” in front of Ms D and the neighbours | W. 37 |
| Early 1997 | Husband corners the wife in the kitchen and demands to know who she has spent time with that day. The husband routinely continued to act in such a way upon his return from work, continuing until 2014 | W. 39 |
| 1998 | Husband ceased attending Church in Suburb J, where the wife and her family had attended for more than 30 years. As a result of the husband’s refusal, the wife had no capacity to transport herself and the children to that Church and thus could no longer attend. Wife receives a compensation payout of $17,497.85 plus paid medical expenses of $12,859.80 as a result of her workplace injury. The money is placed into the wife’s account and expended on day-to-day living expenses. | W. 38 W. 126 |
| 1999 | Husband refuses to replace the oven, after the glass front broke, accusing the wife of having broken it in order to get a new one. The oven was not replaced until 2011. | W. 80 |
| Early 2000’s | Wife reports the husband’s physical abuse and financial control to her GP, Dr K, who informs her that there is nothing he can do. | W. 107 |
| 2000 | Husband accuses the wife of having an affair, threatens to rip her eyes out, spat on the floor in front of her and calls her a “slut”. | W. 39 |
| 2002 | Wife has a seizure at home. Ms D later informs the wife that the husband tried to prevent her from calling an ambulance and when she insisted, demanded that Ms D pay the bill. | W. 81 |
| Early 2003 | Husband abandons the wife and Ms D in Suburb L (an approximate 30 minute walk from the former matrimonial home). This was in response to the husband becoming angry at a request that he take Ms D to the train station to purchase a train ticket in preparation for her first day at university the following day. | W. 42 |
| 2004 | The husband refuses to provide the wife with funds to enable her to get a root canal, despite the husband having undergone the same procedure in 2001. Wife was forced to have the tooth removed rather than proceed with the surgery. | W. 78 |
| 2004 | Husband wins lotto in the sum of $81.474.95. The lotto win is deposited into an account in his sole name. | W. 152 |
| 2006-2010 | Wife works as a customer service officer for which she earns E$1,000 per annum. | W. 128 |
| 2007 | Husband begins locking the bedroom door each morning and taking the keys with him, resulting in the wife being unable to access the bedroom or ensuite during the day. The husband stated that the reason for this was so that the wife could not bring anyone back into their bed. | W. 43 |
| Late 2007 | Husband throws a plate at the wife, hitting her in the left wrist. Wife required medical attention and underwent an X-Ray as a result of the injuries sustained by her. | W. 44 |
| 2009 | Husband gives the wife access to his Commonwealth Bank Cash Investment Account to use for shared expenses, by way of a supplementary card. | W. 155 |
| 2009 | Husband verbally abuses the wife, demanding to know where his olives were. Husband threatens to put the wife’s head through the “fucking wall”. When Mr F intervenes and tells the husband that he needs to get help as he is an alcoholic, the husband threatens to kill Mr F and attempts to push him. Wife tries to intervene in the altercation between Mr F and the husband. As wife leaves the kitchen to call the police, the husband threatens her that he will kill her if she contacts them however the wife proceeds to do so. Husband rips the telephone off the bracket and has to be physically restrained by Mr F until the police arrive. | W. 46 |
| 31/09/2009 | Provisional AVO issues for the protection of Mr F and the wife from the husband. | W. 50 |
| 2012 | Wife’s parents gift her and her 4 siblings $1,000,000 each by way of an early inheritance. The wife deposited $990,000 into 5 separate term deposits and the balance into her bank account. | W. 138 |
| 2013 | Husband refuses to give the wife a lift to Shopping Centre so the wife catches public transport there. Approximately 1 hr after arriving, the wife observes the husband following her and watching her movements. | W. 53 |
| July 2013 | Wife discloses the family violence perpetrated by the husband to her psychologist, Ms M. | W. 108 |
| 2015 | Wife purchases Property B in her sole name funded by the early inheritance received from her parents: · Purchase price: $635,000 · Stamp duty: $24,085. This property is tenanted and the wife receives rental income of $510 per week. | W. 143-145 |
| Late 2016 | Husband tells the wife that if she does not “shut the fuck up” he will stick his fingers into her eyes and rip her eyeballs out. | W. 54 |
| March 2016 | Wife purchases Property C in her sole name funded by the funds received by her from her inheritance: · Purchase price: $505,000 · Stamp duty: $18,235 · Mortgage to St George Bank: $270,000 This property is tenanted and the wife receives rental income of $460 per week which is applied to meet the mortgage payments. | W. 147 W. 149 |
| May 2016 | Husband states that he received $18,315 by way of a compensation payout for industrial deafness | H. 14 |
| 18/03/2017 | Husband swears at the wife and throws his coffee mug at her, missing her but causing it to smash. This occurred in the presence of two of the parties’ grandchildren. | W. 13-17 |
| 19/03/2017 | Police attend the parties’ home after the parties’ son, Mr E made a report after being informed of the altercation by his daughter, Ms O. Wife spoke to the Police and relayed what had occurred. Police obtain an AVO for the wife’s protection. | W. 18 |
| 20/03/2017 | Husband informs the wife that she is not allowed to have their granddaughter, Ms O, at their home anymore as “she is a big mouth and a troublemaker”. Date of final separation. Parties have continued to live separated under the one roof since the date of final separation. | W. 19 W. 5 |
| 10/04/2017 | Wife causes her solicitor to write to the husband to advise that she considered the marriage to have irrevocably broken down, that there was no prospect of reconciliation and that the wife wished to resolve financial matters. No response is received to that correspondence. | W. 8 |
| June 2017 | Husband states that he received $31,164 TPD payment from his superannuation fund Super Fund 2. | H. 16 |
| 10/06/2017 | Wife accidentally turns the wrong light off by mistake, causing the husband to become enraged. Husband threatens to burn the house down. The wife calls her son, Mr E who contacts the Police. Husband is arrested. | W. 55 |
| 28/08/2017 | Final AVO made by Suburb P Local Court for the protection of the wife from the husband | W. page 31 |
| 15/03/2018 | Initiating Application filed | |
| 28/05/2018 | Response filed | |
| 01/09/2018 | Wife goes to McDonalds to meet a friend and observes the husband’s car parked on the other side of the road. | W. 113 |
| 18/09/2018 | Wife awakes to find the husband fondling her. Wife demands that he stop touching her and leave 3 times before he complies. | W. 114 |
| 06/10/2018 | Wife again observes the husband when she goes to McDonalds to meet a girlfriend. | W. 115 |
| 13/10/2018 | Husband enters the wife’s bedroom at 6 am and continually tries to grab at her bottom. Later that day, the wife again observes the husband being in the vicinity of McDonalds when she goes to meet a friend. Wife attends Suburb Q Police Station and makes a report to Police. A Provisional AVO is obtained, which records that the husband admitted to Police that he had checked the wife’s IPAD and when learning that she was going to meet a friend, he decided to follow her to see whether she was meeting a male or female. | W. 116 W. 117 W. 118 |
| 05/11/2018 | Amended Response filed | |
| 14/12/2018 | Amended Initiating Application filed |
The Kennon Argument
Much in this case, even though it is numerically only a modest portion of the determination to be made, relates to the decision of the majority, Lindenmayer and Fogerty JJ, in Kennon & Kennon (1997) FLC 92-757. Within Kennon there is also a separate decision of Baker J referred to as a dissenting Judgment, although the dissent relates only to an issue of re-exercise of discretion. There is no dispute, disparity of dissent between the three Judges comprising the Bench as to the fundamental principles espoused.
It is also curious to observe that Baker J’s Judgment is often that which is focused upon in Kennon and as supporting the propositions which might be broadly described under the umbrella of the Kennon argument. Without intending any disrespect to his Honour, a jurist for whom I have the greatest of respect, his Honour did not, in Kennon, directly engage with the issue that is germane and indeed pivotal to this case. His Honour at best reaffirmed what he had previously stated as obiter in a decision of Doherty & Doherty (1996) FLC 92-652 in which his Honour comprised one of three Judges sitting as the Full Court.
That which fell from Baker J in Doherty was adopted and relied upon by Gee J in Marando v Marando (1997) FLC 92 – 754, a case relied upon by the wife. That case was decided prior to Kennon and refers to his Honour’s discourse in relation to family violence and its potential impact on the assessment of contribution as undertaken in Doherty. Those comments are, after all, obiter and repeated by Baker J in Kennon and nothing more. Indeed, that is apparent at paragraph 169 of Kennon wherein his Honour states:
Nothing that I have said in these reasons for judgment should be seen to be an abandonment of what I said in Doherty and Doherty (1996) FLC 92-652 at p. 82,683 in relation to the effect of domestic violence in proceedings instituted pursuant to the provisions of s79. The incidence of domestic violence in a marriage would generally be a relevant factor when the Court comes to assess contributions pursuant to the provisions of s79 for the reason that the contributions made by a party who has suffered domestic violence at the hands of the other party may be all the more onerous because of that violence and therefore attract additional weight.
This statement is, as was his Honour’s wont, (see, for example, his Honour’s decision with respect to what is often referred to as “wastage” in Kowaliw & Kowaliw (1981) FLC 91-092) extremely to the point and erudite. His Honour was clear that, in his view, it was the onerous nature of behaviour and its impact upon the person who had experience it that caused additional weight to an existing contribution. That is a matter to which I will return.
Both Counsel have submitted and agree that the fundamental statements of principle in Kennon and the majority decision therein are those which arise on – as best as I can identify them – pages 44 and 45 of Kennon – the electronic copy upon the Court intranet being un-paginated and absent paragraph numbers for the majority, joint Judgement. They are the portions which provide –
Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party's contributions to the marriage, or, put the other way, [emphasis added] to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties' respective contributions within s.79. We prefer this approach to the concept of "negative contributions" which is sometimes referred to in this discussion
Continuing on page 45 their Honours opined.
However, it is important to consider the "floodgates" argument. That is, these principles, which should only apply to exceptional cases, may become common coinage in property cases and be used inappropriately as tactical weapons or for personal attacks and so return this Court to fault and misconduct in property matters - a circumstance which proved so debilitating in the past. In addition, there is the risk of substantial additional time and cost.
I pause to observe that that is not a criticism that could be raised of the parties, their Counsel or Solicitors in this case. All too often cases which come before the Court are suggested to hinge upon a “Kennon argument”. Rarely is that argument available or made out. It is perhaps on this basis, that their Honours went on to indicate in other portions of Kennon that the Bench should be vigilant to such claims and at a very early stage weed them out. Their Honours continued.
However, in our view, s.79 should encompass the exceptional cases which we described above. It would not be appropriate to exclude them as a matter of policy because of this risk. It is a matter of commonsense for the lawyers involved and, where that may not be sufficient, it is a matter for a firm hand by the Court at an early stage when a case appears to raise those issues
It concludes with the following important proposition:
It is essential to bear in mind the relatively narrow band of cases to which these considerations apply. To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party. It is not directed to conduct which does not have that effect and of necessity it does not encompass (as in Ferguson) conduct related to the breakdown of the marriage…
As Judge Altobelli observed, somewhat to his frustration, as submitted by Counsel for the husband, it would appear also, that conduct of a violent nature post separation would not invoke such a principle.
The significant issue that arises in this case is how the above passages should be interpreted and particularly the curious use of the phrase “or put the other way”. The two statements separated by that proposition appear quite different. The first proposition is that the behaviour, conduct or violence of a party has had a significant adverse impact upon a party’s contribution (that is, impeding the party making a contribution or impacting its quality). As is submitted, appropriately so by Counsel for Mr Allsop, the principle that one cannot benefit from one’s own wrongdoing would be a strong support for that arrangement.
In other portions of the case their Honours refer to violent conduct being directed not towards a party as such but towards material possessions so as to destroy them or reduce their value. It would not seem necessary, for that behaviour to fall within or be consider in the context of a Kennon argument, as it could be addressed, for example, by Kowaliw and similar cases.
The second proposition though, that which is described as “put the other way”, on its face suggesting that it is simply another way of expressing the same proposition, is not the same as the first. The second proposition is that violent conduct has made a party’s contribution more arduous than they ought to have been, without necessary suggesting or implying that there is any impediment, interference with of or other direct impact on a contribution. The two statements on their face are not two ways of saying the same thing. They are quite different propositions. How might they be reconciled? To do so one would need to look at the balance of their Honours’ Judgment.
Their Honours set out, at some length, portions of the reasons delivered by Coleman J in the first instance decision. It is important, to note that Coleman J as he then was – now Coleman SC – is, in his own right, a man of vast intellect and a jurist vastly superior to myself. His decisions were rarely appealed and rarely successfully so. Kennon is one such example, the Appeal having failed. Their Honours comprising the majority, Lindemayer and Fogarty, did not criticise the reasoning of Coleman J in any respect. They upheld his decision and the means by which he arrived at it. Commencing at pages 20 (and continuing at pages 32 and 33) Lindemayer and Fogarty J commence by quoting a portion of his Honour’s reasons and accepting his Honour’s reasoning, with one qualification, as correct. Coleman J’s reasoning had been:
…there must be some other relevance for the (wife’s) impaired state of health during cohabitation, the most obvious way in which that could be relevant being that it has rendered the quality of her contributions greater in that the contributions were made in the face of adversity arising from impaired state of health.
His Honour then goes on to discuss the specific evidence in that case before concluding.
I believe that the High Court’s decision in Mallet and the recent Full Court decision in Doherty v Doherty ((1996) FLC 92-652) provide support for this approach.
Their Honours then had the following to say.
Thus his Honour recorded counsel’s submissions so far as domestic violence and s.79 are concerned as being an adjustment within s.75(2)…
Again, I pause to observe that Kennon was decided during a brief window when cross-vesting had full effect. One could agitate and prosecute a claim for common-law damages simultaneous with one’s business under the Family Law Act and in the same Court. That period was brief, perhaps for the sake of this Court’s resources – thankfully so. As was observed by their Honours as part of their discussion with respect to the policy or floodgates argument, the litigation had, as a consequence of agitation of the common-law claim, consumed 10 days of hearing.
Lindemayer and Fogarty JJ then record and agreed with a further portion of Coleman J’s decision.
Having regard to the decision of the High Court in Mallet v Mallet (1984) 156 CLR 605 it is conceivable that an applicant may, if the medical evidence is substantially accepted, receive an adjustment under Section 75(2)(o) by virtue of any impact upon the nature and quality of his or her contributions through having been the subject of violent abuse by a spouse.
Coleman J discussed the specific evidence in the case before him, which he found somewhat wanting. He then continued:
…I am satisfied for reasons to which I will refer that the health of the (wife) was for a period during cohabitation and subsequent thereto impaired in circumstances which need to be considered within the context of Section 75(2) quite apart from any tortious or causal actions of the (husband) in that regard
Their Honours Lindenmayer and Fogarty then conclude their discussion of Coleman J’s decision:
Thus his Honour was of the view that domestic violence may be reflected in the assessment of contributions under s.79(4) where the circumstances show that it had an impact upon that party’s contributions as homemaker or, within particular paragraphs of s.75(2) where they are relevant “quite apart from any tortious or causal actions” by the other party
Their Honours also referred, with approval, to an earlier decision of Coleman J in Manna & Manna (Coleman J, 20 May 1996, not reported). At page 41 of Kennon, the following is stated:
It is interesting to note that in Manna, Coleman J preferred the view of Cook J at first instance in Fisher’s case to that of the Full Court.
His Honour had said of the following passage from the Judgment of Cook that:
The view expressed at first instance by Cook J more closely reflects the Court’s view today of such matters, such matters being family violence.
What Cook J said was:
“If a party is subjected to a situation within a marriage relationship where they do endure, if one might use that expression, or are subject to some repeated discomfort, violence, ill-treatment, matters of that kind by the other party and nevertheless they continue to perform the role of homemaker, then it is difficult to see that those matters can be left out of consideration by the Court. Indeed, in particular circumstances, it might be quite clear that rather special consideration has to be given to the efforts made by one or other of the parties, or even both parties if they have mutual claims of ill-treatment against the other party, either psychological or physical, that this role of homemaker must be given a special weighting or consideration in the case.”
I make very clear that I disavow and do not adopt the prefix “special”. I accept the submissions put by Counsel for Mr Allsop that such a prefix is, at best, unhelpful and that there is very much an attitude expressed in present precedent against recognising contributions as “special” in any fashion.
What is clear from the portions of Coleman J’s first instance decisions as discussed by the plurality of the Full Court in Kennon is that Coleman J, the Judge whose Judgment is sought to be impugned on Appeal but ultimately the Appeal dismissed, relied substantially if not entirely, it would seem, upon the second proposition – that contributions were made more onerous.
It is clear that Coleman J, and through adoption of that which he had opined also Lindenmayer and Fogarty JJ, accepted both categories, that is, family violence might be relevant not merely, as Counsel for the wife has referred to as “the shield”, but also what Counsel for the wife referred to as “the sword”. I prefer to adopt language of positive and negative impact upon contributions rather than language which might, without intending any disrespect, cause further confusion with the issue.
I have adopted that language, negative and positive impact upon contributions, as reflecting the first and second propositions advanced in Kennon. A negative impact upon contribution would impede or reduce the ability of the party to contribute when they have experienced family violence. A positive impact upon contribution would arise in circumstances where the contribution has been more arduous and thus more difficult to make, or, as is submitted by Counsel for Ms Allsop, which submission I accept, the contribution is, as a consequence of the violence, increased in weight as to both its quality and nature.
That interpretation is, I am satisfied, supported by Lindenmayer and Fogarty JJ and by their references to Coleman J’s earlier dicta, particularly in Manna.
The majority in Kennon also made abundantly clear that one cannot consider family violence, even if it is found to be significant, extensive, and – as it is in this case – infecting the entire 40 years of the marriage – from a compensatory basis. That is not within the ambit of this Court’s exercise of discretion. Section 79(4) does not include, as a basis for adjustment or assessment of contribution, any compensatory element. So much is made clear by Lindenmayer and Fogarty JJ at page 42, wherein they indicate:
This is an important issue - whether conduct is relevant in the s.75(2)issues. The argument is that if the circumstance is that the claimant suffers from ill-health, either physical or psychological, or has a reduced earning capacity because of physical or psychological deficits, those matters would in any event be taken into account under the relevant paragraphs of s.75(2) and given full weight. The circumstance that that was brought about wholly or partly as a result of the other party’s conduct would therefore be irrelevant and in isolation would be seen as punishing the conduct itself, a role better left to the common law.
On pages 33 to 34 of Kennon, their Honours engaged in a discussion with respect to family violence and changing attitudes towards it in both case law and academic writing. It is unclear whether the academic texts referred to were identified by the parties or introduced by their Honours. However, their Honours had the following to say:
Early cases in this Court appear to have rejected the relevance of domestic violence to a s.79 claim (except in cases where it was seen to have a direct financial consequence). However, in more recent times there has been a significant re-agitation of this issue both in decisions of this Court and in a number of learned articles: see Waters and Jurek (1995) FLC 92-635 at 82,378; Doherty (1996) FLC 92-652; Manna, (Coleman J, 20 May, 1996, not reported), and Rosati, supra; Behrens: Domestic Violence and Property Adjustment: A Critique of “No Fault” Discourse (1993) 7 Australian Journal of Family Law 9; Behrens: Violence in the Home and Family Law: An update (1995) 9 (1) Australian Journal of Family Law 70; Justice Murray: Domestic Violence and the Judicial Process: A Review of the Past Eighteen Years (1995) 9 Australian Journal of Family Law 26; Behrens: Recent Developments in Compensation for Violence in the Home, October 1996, 7th National Family Law Conference; Wiegers: Compensation for Wife: Abuse : Empowering Victims? (1994) 28 U.B.C. Law Review 247; Justice Morgan: Domestic Torts - Fertile Fields or Shifting Sands, Leo Cussen Institute, May 1997; Australian Law Reform Commission (1994): Equity Before the Law: Justice for Women Report No.69; Justice Chisholm: Matrimonial Property Reform: Current Proposals and Issues, March 1994; Justice Dessau: Domestic Violence and Family Law Cases, October 1995; Carp: Beyond the Normal Ebb and Flow ... Infliction of Emotional Distress in Domestic Violence Cases (1994) 28 (3) Family Law Quarterly 389.
Of the above cases, Doherty is a decision of the Full Court but the discussion of this issue is brief. Only in Rosati were the earlier cases discussed in detail. All, however, reached an affirmative answer to this question of the relevance of domestic violence within s.79.
Their Honours then went on to identify that different language had been used in earlier decisions, an inconsistency which, their Honours felt should be addressed by adopting the term “conduct”.
Their Honours observed that the question of what is encompassed by the term “domestic violence” had received little attention. That is not so at this point in time. Section 4AB of the Act clearly defines family violence as well as giving illustrative examples of that which may constitute family violence singularly or in combination.
Their Honours noted that the discussion of the relevance of conduct was almost exclusively connected with domestic violence. Although it was not intended to confine the issue, their Honours did not express violence as an exclusive category of “conduct”. Their Honours noted that the issue only really arises in a discretionary system of property settlement, i.e., in a codified or civil law system, only that which was contained within the statute would be relevant. That has been addressed by Counsel.
Certainly, it is common ground that Parliament has not legislated to exclude consideration of the principles elucidated in Kennon, thus those principles remain valid and appropriately considered. I will touch upon the issue again shortly.
Their Honours then concluded:
It is only in more recent times that the pervasiveness and destructiveness of domestic violence have been at least partly acknowledged in Australia. Whilst there is no reason to suggest that domestic violence is more prevalent in society now than it was in previous generations, until recently both the law and society generally cast a veil of silence over it, preferring to proceed on the basis that either it did not exist or that it was inappropriate for society or the law to intervene in disputes within the “private” sphere of the home.
There has in more recent times been a marked and long overdue change in those attitudes and a greater social and legal awareness of and disapproval of domestic violence and past attitudes to it. The law, and society more generally, have begun to explore legal remedies which may be appropriate to prevent such behaviour or address its consequences.
It is to be noted that in 1997 the raft of domestic violence laws, both as civil and criminal offences, that presently exist were only in their genesis. Things have, indeed, changed a great deal as regards the law and the attitude of both law and society towards family violence. Regrettably, it must be observed that those changes have not been sufficiently profound to have dealt with the issue anywhere near as appropriately as might have been envisaged by their Honours.
In all of those circumstances, I am ultimately satisfied that the apparent confusion created by the use of the phrase adopted by their Honours must be resolved on the basis of what I have described as acknowledging and accepting both positive and negative impact of violence as capable of consideration by the Court. Conduct which has, as their Honours described, had a significant adverse impact upon a party’s contribution as well as conduct which has made a contribution more arduous or necessitated an increase in the level of contribution a the victim of such violence has made are both relevant. Accordingly, I will proceed on that basis.
Evidence of family violence
As already indicated, I accept and make findings of family violence as alleged by Ms Allsop and her children and each of them.
It should also be observed that Ms Allsop has, since prior to this marriage, suffered from epilepsy and received treatment for it on an ongoing basis. Its relevance is perhaps the impact the condition has had upon Ms Allsop’s vulnerability and susceptibility to those behaviours complained of with respect to Mr Allsop.
I do not suggest there is medical evidence regarding Ms Allsop’s epilepsy, although it is not a disputed fact as to the condition. The children both corroborate their mother’s evidence but also give evidence of family violence that they have, themselves, experienced and the impact that violence has had upon them.
I do not accept that it is safe to make any finding of sexual assault by Mr Allsop upon Ms Allsop. Ultimately, it was conceded by Counsel for Ms Allsop that such a finding was not safely available or perhaps even not necessary in the circumstances.
That is in no way to invalidate or suggest non-acceptance of Ms Allsop’s evidence going to those behaviours. It is simply that I need not pursue it further in those circumstances.
The impact of the violence upon Ms Allsop and upon each of these three now adult children is readily observable from their demeanour in the witness box. Mr E, in particular, was an impressive witness.
His trauma was clear and apparent, particularly when he indicated in response to a question – perhaps not as responsive as it might have been – “when you have been abused all your life, it has an impact”. In relation to his memory, challenged in light of events from 30 years or so ago being recalled clearly by him, he responded, “my memory is best [of the three children] as I copped the most as the eldest”.
As already indicated, I accept each of the three children as accurate historians.
I accept that the wife was the predominant parent of all three children from their birth until their majority. I accept that, as a consequence of the family violence experienced not only by the wife but by the children, that Ms Allsop’s contributions increased to a point of her being an almost sole or single parent.
The children and each of them experienced a significant breakdown in their relationship with their father from a fairly early age. In the case of the boys, they would appear to have experienced far more significant physical violence from their father at a quite early age and around their adolescence, at a point in time when they became able to defend themselves and to do so with some effect. That also led to them, consistent with the evidence of Mr E and Mr F, intervening at times for the sake of their mother.
The children’s relationships with their father are now entirely broken down and one would think not aided by this litigation, (but perhaps, by the time of this litigation, already beyond any reasonable expectation of repair). I accept that during the relationship and until the receipt by the wife of the inter vivos inheritance or gift from her parents that she had no independent funds available to her following her having left paid employment very early in the relationship and prior to the birth of the first of the children.
I accept that until 2012, as already referred to above, when a card to access the account into which the husband’s wages were paid and simultaneous with which the wife received the gift from her parents, that Mr Allsop controlled the finances of the parties and to a large extent the expenditure of the household.
I accept, as was submitted by Counsel for Ms Allsop, that the wife and these three children lived in a climate of fear within their household.
The wife’s contribution as a homemaker and parent was, I am satisfied and as a consequence of the family violence she and the children experienced, increased well beyond that which would otherwise have been necessary or which otherwise would have occurred. It included her being required to undertake a greater amount of work, effectively all parenting – or close to it – of these children. It required Ms Allsop to engage, not only in positive duties of parenting, but what might be seen as more negative duties, no doubt substantially impacting upon and strengthening the relationship and bond she enjoys with her children in their adult lives, but in the nature of providing comfort and emotional support to these children who experienced themselves their father’s violence as well as witnessing it directed towards their mother.
I accept that this increased the contribution made by Ms Allsop and that it meant that her contributions were made more onerous and made in arduous circumstances, or made more difficult.
It is submitted on behalf of the husband, (and I make clear from the outset, that in discussing submissions put in the husband’s case, they are put fairly, appropriately and with significant balance), that there has been no recognition in precedent, of what is described as an increased contribution approach, i.e., that one should focus upon behaviour which has impacted or impeded a party’s contribution. I accept that there is no readily available Full Court authority that discusses those issues to any significant extent, save and except from the above discussion by the majority in Kennon, which I am satisfied accepts both positive and negative impact upon contribution.
I accept that contribution by a party cannot and should not be increased or found to increase solely on the basis that findings are made that family violence has occurred. That would, as is submitted, be arbitrary and gratuitously compensatory and thus inappropriate and impermissible. Importantly, the majority in Kennon make clear that the Court does not have a compensatory jurisdiction. What is required is “conduct occurring during the course of the marriage which has a discernible impact upon the contributions of a party.”
I accept that the conduct in the nature of significant and prolonged family violence over the 40 years of this marriage has occurred. I accept that it has had a discernible impact on the wife’s contributions, as discussed above, and for the sake of repetition through:
a)The wife’s contribution as a homemaker and parent having increased, as the husband did not positively participate in parenting the children to any significant extent, if at all;
b)The husband’s family violence increased what Ms Allsop needed to do in parenting these children; and,
c)The wife’s contribution in raising and supporting and seeking to protect all three children, within a climate of fear, as it has been described by Ms Allsop’s Counsel, made her contributions as a homemaker and parent more arduous, including, in particular, her provision of home duties and engagement in the marital relationship with her husband who was, throughout the relationship and on the basis of the above findings of family violence, the perpetrator of family violence upon her and towards her and towards her children.
It is submitted on the husband’s behalf that a Kennon argument or findings of family violence are not and should not be a special or distinct element of contribution. I accept that this is so. Family violence or its endurance is not a separate category of contribution. That would require legislative change and its inclusion within section 79 of the Act. Family violence, as discussed in Kennon, goes to the assessment and weight given to contributions that are made by parties and, in this case, the wife’s homemaker and parent contribution.
It is submitted on the husband’s behalf that adjustments in relation to contribution by reference to Kennon should be limited to cases which fall within the “financial consequences approach”, those which have reduced or impeded a party’s contribution or damaged property or reduced its value. I do not accept that the Kennon principles, if they might be so described, can or should be confined to that negative impact. Consideration would also extend, for the reasons discussed above, to the impact upon contribution of circumstances being arduous and thus positively increasing the weight attached to the contribution made.
Some further support is given to that proposition in that the financial consequences approach, as it has been described in submissions, is, to a significant extent, particularly as regards direct damage to or reduction in value of property, potentially addressed by the principles discussed by Baker J in Kowaliw.
It is submitted on Mr Allsop’s behalf that the Court must and should be careful to not “open floodgates” by too readily accepting such claims or engaging in adjustments of contribution by reference thereto. Again, that issue was dealt with by the majority in Kennon. They rejected that as a policy basis to not permit a consideration of family violence in appropriate and, I accept, as he submitted on behalf of Mr Allsop, exceptional circumstances.
The Court cannot punish or compensate for conduct. Again, as emphasised in Kennon and submitted on the husband’s part, that is not what I seek to do. An adjustment in the assessment of Ms Allsop’s contribution is not punitive to Mr Allsop. It is rewarding of and accepting the extent of Ms Allsop’s contributions.
It is submitted that the Court cannot and should not return to a fault-based system. Indeed, the Court should not and cannot unless and until such time as Parliament decrees that it should be so. One would think that unlikely. To make an adjustment in accordance with the second limb of that discussed by Lindenmayer and Fogarty JJ in Kennon is not to do so. It is not apportioning blame or finding fault. It is acknowledging factors which impact upon a party’s contribution and the assessment of weight attached thereto.
I am satisfied that, in this case, the test of “exceptional circumstances” as described in submissions put on behalf of Mr Allsop, is made out by the nature, extent and duration of the husband’s family violence perpetrated towards the wife and the children within the household, that violence having subsisted over a period of 40 years. That must, on any view, fit such a test if one exists.
I am satisfied that what their Honours meant by the above passages is that the Court can consider a discernible impact upon the contributions of a party and the assessment of weight both positively – contributions which have increased as a consequence of or responsive to family violence – the more arduous cases, as they are described – or in the negative sense.
The husband submits that the Court’s discretion should be exercised carefully and on cogent evidence. I wholeheartedly accept that that is so. That is consistent with the Full Court’s decision in Sahrawi & Hadrami. I am satisfied, however, that there is cogent evidence in this case of a 40-year pattern of unrelenting, significant, coercive and controlling family violence directed towards the wife and the children of the marriage and that this family violence, and the wife’s endurance of it, increased her contributions and made them more arduous.
It is submitted on the husband’s behalf that the Court cannot and should not infer impact of behaviour. Again, I accept that proposition wholeheartedly. I do not infer the impact. I have observed it in the wife and the children as they have given their evidence. I have read it in the wife’s Affidavit material and I accept her evidence, and that of the children, in preference to Mr Allsop. In contradistinction to their evidence, Mr Allsop gave blanket denial and ultimately opined a conspiracy orchestrated by Mr E and possibly the other children to protect their future inheritances from their mother and from their maternal grandparents.
I dismiss that suggestion entirely. In light of the evidence that I have accepted, the suggestion is at best disingenuous and at worst insightless and disrespectful.
I am satisfied that the wife’s marriage was miserable and properly described by Counsel for the wife – as regards both the wife and the children, as “living in a climate of fear”. I accept the wife’s direct evidence that this made her daily life and the performance of her duties especially, when she was performing duties for her husband, unpleasant and uncomfortable and that they were often performed begrudgingly and from a sense of duty founded in cultural or generational attitudes.
I accept that the wife’s contributions as homemaker and parent were significant and made more significant and more onerous by enduring the husband’s violence.
In relation to the homemaker and parent contributions generally, I am also conscious that Lindenmayer and Fogarty JJ at page 56 of Kennon adopted that which had been earlier opined by the Full Court in Waters & Jurek (1995) FLC 92-635, namely:
“In most marriages, there is a division of roles, duties and responsibilities between the parties. As part of their union, the parties choose to live in a way which will advance their interests - as individuals and as a partnership. The parties make different contributions to the marriage, which the law recognizes cannot simply be assessed in monetary terms or to the extent that they have financial consequences. Homemaker contributions are to be given as much weight as those of the primary breadwinner.
I propose to do so.
The husband submits that the Court should not attempt to calculate or ascribe value to the contribution that arises from family violence. I do not propose to do so. It is not a separate category of contribution. The categories of contribution are set out in section 79(4) of the Act. The Court should not go beyond them. However, family violence per the Kennon principles as so described, is a factor impacting the weight and assessment of the legislatively recognised contributions including contributions as a homemaker and parent.
Finally, in discussing the Kennon issue, I am conscious that the wife has relied upon a number of first instance decisions. Of course they do not bind the Court, other than in the general sense that in a common law system, consistency should be sought to be attained between different decision-makers applying consistent and settled principle. However, the discussion that is undertaken by Gee J in Marando commencing on page 10 and concluding on page 11 is of some particular assistance and I respectfully adopt that which his Honour opined. That includes:
The remarks of Baker J in Dougherty’s case were simply an expression in the context of domestic violence of the passages in Ferraro’s case. Neither Ferraro’s case or Dougherty’s case purported to overrule Sobluski nor Ferguson where investigation of fault or misconduct was depreciated.
It continues then in the following paragraph:
Whilst in normal circumstances the assessment of the parties’ contributions under section 79(4) in this case over so long a period of cohabitation would lead to a conclusion of equality, I am of the opinion that the special factors set out above, being those related to family violence in relation to the wife’s contribution to the welfare of the family lead to the conclusion that her overall contributions were thereby so increased as to be greater than those of the husband and, although it is difficult to be precise, to the extent of 55 per cent to the wife and 45 per cent to the husband.
The one portion of his Honour’s decision which I do not expressly adopt is the suggestion that the family violence has – to the extent that it might be interpreted that it is his Honour meaning –increased the contribution. What increases the wife’s contribution is the increase in the wife’s effort in making the contribution in light of the arduous circumstances endured whilst doing so.
I am also referred to a decision of Justice Altobelli in Jarvis & Seymour [2016] FCCA 1676. Therein, as Counsel for Mr Allsop describes, Judge Altobelli expressed some degree of frustration with the lack of specifics and clarity that arises from such the principles as espoused in Kennon. I am satisfied that the principles espoused are tolerably clear and precise. They appropriately give guidance as to the exercise of a discretion. I am satisfied it is sufficient guidance. Ultimately, Judge Altobelli, after stating the principles arising from the above passages of Kennon (being those which I have already quoted) came to a conclusion that the wife’s contributions had been rendered more arduous and, accordingly, determined that an adjustment of 5 per cent should be made.
With the reference to the evidence in this case, I do not assess the wife’s contributions in light purely of her contributions being more arduous but also having increased the contribution that the wife was required to make.
I have referred to the two first instance decisions above as they are of some real assistance in understanding the joint position of the parties that if a Kennon argument, as it has been styled, were made out, as I am satisfied it has been, that the adjustment made should be no more than 5 per cent. It would seem to be very much a consistent finding in cases that are comparable to this and the agreed position of Counsel for the parties.
The wife’s early inheritance or gift
There is no dispute as to the circumstances of the gift.
The wife received $1 million from her parents. It was received solely by her. Indeed, Mr Allsop is critical and complains that he was never told by the wife that she had received the money. He learned of it from a friend in whom the wife had confided, although clearly there is no dispute now as the circumstances of receipt of the funds. I am satisfied that the gift was to Ms Allsop. It was not to Mr and Ms Allsop as a couple.
Whilst the intention of those who bestow a gift upon Ms Allsop may not be dispositive or in any fashion binding – possibly and arguably not relevant – it is very clear that Mr Allsop and Ms Allsop’s parents are estranged from each other. There was a period of not less than 18 months where there was little if any communication between Ms Allsop and her parents, arising at the behest of Mr Allsop. It has been a strained relationship between Mr Allsop and his in-laws for quite some time. Mr Allsop would drive Ms Allsop to her parents but would not necessarily stay.
I accept that Ms Allsop’s parents intended the benefit of the gift to go to Ms Allsop, not to the family as such.
The funds received by Ms Allsop have not been intermingled or joined, in any way, with any other asset or funds of the parties jointly or singly. That, again, is not dispositive of any issue, simply an agreed fact.
Ms Allsop has, at all times, retained sole control of those funds. Ms Allsop has made all decisions as to how the funds would be used and invested and Mr Allsop has had no involvement in those decisions or the transactions which have flowed therefrom.
Ms Allsop decided to purchase two investment properties with those moneys, a home at Property B and another at Property C, the latter subject to a modest mortgage. Ms Allsop alone engaged in the purchases and in locating the properties, instructing Solicitors or conveyancers and all else required to complete those transactions.
Mr Allsop’s evidence is he had not been to or set foot upon those properties until after they had been purchased. The wife’s conduct, as above, makes clear that it was her intention to keep the funds separate and to not intermingle them with or provide benefit to Mr Allsop, although, again, that is far from dispositive of any issue. Ms Allsop has received all rents and profits from those properties without providing them to, accounting for them to or in any way providing any portion of them to Mr Allsop.
Ms Allsop has, however, provided some benefit in that I accept her evidence that since she received the inheritance funds, she has contributed equally to bills and expenses of the household, although that is not to dismiss Mr Allsop’s evidence, for example, that he has paid for repairs to a hot water system and a garage door without contribution by Ms Allsop. Certainly, I do not accept Mr Allsop’s evidence that he continued to pay all of the bills with respect to the home which the parties have jointly occupied, including since March 2017 when the parties separated under the one roof.
Finally, I am satisfied that there has been no direct contribution by Mr Allsop to the two investment properties purchased by Ms Allsop with the funds from the gift of any significance. Mr Allsop’s evidence is the basis for that finding. Mr Allsop is clear that he installed and possibly purchased, (although there is controversy as to who funded the purchase), a clothes line to one property and undertook stormwater repairs to a second property. There is dispute as to the nature and extent of those repairs.
Direct contributions, however, are not the only contributions recognised under the Act, and I will turn to that shortly. I am particularly conscious in relation to these issues, however, of authorities such as Stanford and Pierce & Pierce [1998] FamCA 74. Both have some particular importance before turning to a more broad and general application of legislative provisions.
In Stanford, the High Court was clear at paragraph 37:
First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties -
The legal and equitable interests of the parties with respect to the properties at Property B and Property C vest entirely with Ms Allsop. Later, their Honours opined at paragraph 41:
The fundamental propositions that have been identified require that a court have a principled reason for interfering with the existing legal and equitable interests of the parties to the marriage and whatever may have been their stated or unstated assumptions and agreements about property interests during the continuance of the marriage.
There is no evidence to suggest that Ms Allsop has ever, through word or deed, suggested anything inconsistent with her legal ownership of the two properties, although that does not, for one moment, suggest that those properties cannot be dealt with and made the subject of adjustment of interests.
I am also conscious of that which is set out in the Case Outline provided by Counsel for Mr Allsop at paragraph 14 indicating, by reference to the authorities quoted therein:
…it is not the purpose of the relevant provisions of the Act to ‘equalise the financial strengths of the parties’ [Quoting Mallet & Mallet]:
…I have carefully safeguarded against utilising the provisions of section 79(4) of the Act as a ‘source of social engineering or as a means of evening up the financial positions of the parties’ -
In Pierce, at paragraph 19, the following is indicated in respect of what, in that case, were initial contributions, in this case, certainly not initial but a lump sum contribution:
…in considering the weight to be attached to the contribution, regard must be had to the use made by the parties of that contribution -
In this case, there has been no joint use. The assets have been kept entirely separate and apart from any other asset. The funds received by Ms Allsop were used by Ms Allsop to purchase properties which are income-producing and which provide her with income.
Counsel for Ms Allsop has referred the Court to the Full Court’s decision in Bonnici & Bonnici [1991] FamCA 86 and, in particular, paragraphs 41 to 43 thereof which I incorporate herein:
41. The more difficult issue in this case is as to whether the same should be treated differently from other types of property in which the parties clearly have an interest.
42. The answer, we consider, must depend upon the circumstances of individual cases. If, for example, in the present case, there had been no other assets than the husband's inheritance, but the wife had, as his Honour found, clearly carried the main financial burden in the support of a family and also performed a more substantial role as a homemaker and parent than the husband, then it would clearly be open and indeed incumbent upon a Court to make a property settlement in her favour from such an inheritance.
43. A property does not fall into a protected category merely because it is an inheritance. On the other hand, if there are ample funds from which an appropriate property settlement can be made and a just result arrived at, then the fact of a recently acquired inheritance would normally be treated as an entitlement of the party in question.
What the Full Court makes clear in those passages is that an individual assessment of assets or funds contributed to a marriage must be undertaken.
It is submitted on the husband’s part that it could not be just and equitable if, after 40 years of marriage, the assets owned by these parties jointly or severally were divided as to 70 per cent to the wife and only 30 per cent to the husband. I am conscious in light of the above passages quoted from various authorities that one cannot undertake the exercise in that fashion. It is a matter of assessing, as the High Court has been clear in Stanford, the present legal and equitable interests of the parties then assessing the contributions made by each including any consideration of relevant section 75(2) factors and determining in each of those steps what is just and equitable. I will turn to that shortly.
Other Lump Sums
The gift to the wife from her parents is not the only lump sum introduced in this relationship. There have been a number. The husband received a lottery win. The husband has had a number of workers compensation payments. The husband has received a payment out from his superannuation fund on the basis of total and permanent disability. The wife has received a modest compensation settlement. The evidence of the parties with respect to those amounts are not significantly in dispute.
I am not satisfied that any of those lump sums require any specific consideration in the same fashion as the gift from the wife’s parents. No submission has been put by Counsel for either of the parties that it should be so. To the extent that the lump sums introduced relate to compensation for injuries, they are injuries that have occurred during the relationship and most of the funds have been introduced during the relationship. The lottery win occurred during the relationship and, as the Full Court has been clear, there is little to be gained by focusing upon who purchased the ticket or from where the funds to purchase the ticket were derived.
At the time of each lump sum, the parties were married, desired to be married, (with some begrudging elements perhaps on the part of Ms Allsop), and were engaged in joint financial endeavours. Their finances were directly tied each to the other. The funds were intermingled. I do not propose to consider or discuss those transactions more specifically.
Parties Paid Legal Fees
Each of the parties has appropriately disclosed, by tender, the legal fees that they have paid to date. It is fair to observe that the legal fees of Ms Allsop are close to double of those of Mr Allsop, at least as regards that which is paid.
NHC & RCH [2004] FamCA 633 permits an “add-back” of those amounts. It would seem that Mr Allsop agitates for their inclusion on that basis. It would not seem that Ms Allsop is as committed to that course.
I am not satisfied, in this case, that it would be just and equitable for paid legal fees to be included, whether as add-backs or section 75(2)(o) adjustment otherwise. I accept that the Court is entitled to do so if it is just and equitable. The amounts that each of the parties have paid is disparate. That does not mean that the amounts that the parties have necessarily incurred are as disparate, merely that Ms Allsop has paid more as she has gone, as it were. Mr Allsop has, to date, paid less. But his legal representatives may simply be more willing to carry the bill as total costs incurred are comparable.
Each will ultimately pay their own legal fees from the funds and resources that they have, subject to any application for costs that might follow upon the making of orders in this case. The wife has paid more to date than the husband and that would mean that, through the inclusion of paid legal fees, it would favour Mr Allsop, I am satisfied perhaps unjustly. That arises not merely because Ms Allsop has paid more but because of the source from which Ms Allsop has paid her legal fees, from assets arising from a gift to her from her parents and which is discussed above.
Accordingly, I do not propose to include those amounts. I will leave the parties’ legal fees, subject to any order for costs that might ultimately be agitated for and made, where they lay.
Assets per the Balance Sheet and Approach Thereto
Initially, the parties opened their respective cases by agreeing upon the Court approaching their assets by a consideration of three separate pools. That is no longer a joint position.
The wife agitates that the Court would consider the matter as two or possibly three pools but, in any event, treating two of the three pools in the same fashion, those pools comprising the two investment properties purchased from the gift funds as one pool, superannuation as a second and all other assets as a third, separate pool. The husband proposes in closing that the Court would adopt a global approach towards the assets of the parties.
I am satisfied, as is submitted on behalf of Mr Allsop, that a global approach is preferable. Ultimately, I make clear there is little, if any, difference in terms of the outcome that is arrived at on the basis of the calculations that are performed by the wife in relation to a two or three pool approach. However, a global approach is generally to be preferred, (see, for example, Hickey v Hickey and the Attorney General for the Commonwealth of Australia (Intervenor) (2003) FLC 93-143). The Court should not seek to engage in a mathematical exercise or an auditing of the marriage (see Shimizu & Tanner [2011] FamCA 271 as approved by the Full Court in Mayne & Mayne [2011] FamCAFC 192) and a global approach lends itself more readily to an avoidance of mathematising issues and arbitrariness.
I am satisfied that an assessment of contributions overall is more realistic, less arbitrary and more just and equitable. There is a degree of artificiality in treating asset separately or in different pools. That being so, I am conscious that the net pool of property thus comprises by reference to exhibit A $2,325,587 gross or after deduction of the mortgage $2,080,088. There is then, of course, the super to add to arrive at a total pool. I treat the superannuation as assets, not only by reference to the provisions of the Act that permit it to be engaged in on that basis for the purpose of division or super splitting, but as the husband’s superannuation comprises the vast majority of the superannuation entitlements of these parties jointly and those entitlements are, effectively, cash-able at this point.
Accordingly, the total net asset pool, if it might be so described, on a global basis, has a value of $2,415,053. If two pools were adopted, then the gift properties have a net value of $1,084,501, the other assets $1,330,552.
As I already indicated, the wife suggests that if global assessment is to occur, that the wife should receive 66 per cent, the husband 34 per cent. The husband indicates 54 per cent to the wife and 46 per cent to himself.
The wife submits that if a two pool approach were adopted, that the husband would be assessed as having made a contribution of no more than 10 per cent to the gift pool and the wife would be assessed as having contributed 55 per cent to the non-gift pool. The wife concedes that in those circumstances and in light of the disparity which would arise from a different treatment of the two pools, that some section 75(2) adjustment might be made in favour of the husband, but no greater than 10 per cent of the gift pool. I accept the wife’s assessment of contributions, but on a global basis, although as already indicated, little if anything turns upon which of the two methodologies that are advanced.
a)The two investment properties purchased by the wife from the funds that she received from her parents were introduced some five years prior to the separation of the parties, that is, one eighth of the marriage of the parties, but the chronology is of little importance. What is important is the manner in which those properties were introduced or acquired, how they have been used and what has occurred with them. I am satisfied that the introduction of those properties or the funds with which they are purchased must significantly impact the assessment of the wife’s contributions and much more profoundly so than the Kennon argument. The portions of Pierce and Stanford that I have referred to above make it clear that it is so, as well as authorities such as Farmer & Bramley [2000] FamCA 1615, Omacini & Omacini (2005) FLC 93-218 and Hickey. The impact of the Kennon argument upon the assessment of the wife’s homemaker and parent contributions is also taken into account in accepting the wife’s assessment of contributions.
There is no dispute between these parties that, at the commencement of the relationship, they were both in paid employment. However, the wife’s participation in paid employment ceased a very long time ago. Since that time and until 2012, the sole income of the household has been the husband’s. I accept that the household was run on a very frugal basis, whether that frugality was controlled by Mr Allsop or not. These are simply not parties who have had great wealth in their relationship not because they do not both work hard, in whatever capacity they have worked, but simply their skills and circumstances of life have made it so.
There is no dispute between the parties that neither will, in all probability, return to paid work at any time in the future, Mr Allsop predominantly due to injuries that he has experienced in his employment in the past, Ms Allsop due to her age and (now) lack of employment skills having been a full-time homemaker and parent for most of her adult life. On that basis, I am satisfied that cumulatively and;
a)Assessing that the contributions made by Ms Allsop as a homemaker and parent balance if not outweigh the contributions of Mr Allsop as a wage earner especially so in light of the accepted Kennon argument; and,
b)Bearing in mind the introduction of the significant funds from her parents;
that an assessment of the wife’s contribution at 66 per cent is appropriate and within a range of reasonable outcomes.
If a global approach were adopted, I am not satisfied that there should or would need to be any further adjustment as between the parties with respect to section 75(2). If, however, I adopted the wife’s primary position and approached the matter by way of two pools, I accept that there would need to be a section 75(2) adjustment to provide some degree of compensation, if it might be so described, for the vastly superior financial position Ms Allsop would be in. That is tempered, to some extent, by the factors in favour of Ms Allsop and I am satisfied would result in an adjustment to Mr Allsop of no more than 10 per cent of the gift pool. That produces an amount that is similar if not identical to that which is produced through the alternate position and that which I propose to adopt by preferring a global approach of the wife’s overall contribution to the entirety of assets being fixed at 66 per cent.
Section 75(2) permits adjustments and must be considered.
It is common ground that the parties are of relatively similar age and states of health. Irrespective of any controversy with respect to evidence, it is agreed, neither will, likely, work again in the future.
The income, property and financial resource of the parties, I am satisfied, if the matter is dealt with on a global basis, would not require further consideration. The parties’ contributions would determine that which they would receive. It would not then be necessary to consider further adjustment so as to adjust any disparity in the asset position of the parties arrived at by reference to contribution.
Neither party has the care and control of a child under 18.
The parties have no commitments to support any person other than themselves.
Neither party is presently receiving Centrelink benefits or other allowances. Mr Allsop is receiving worker’s compensation payments, but, upon his becoming entitled to receive an age pension, which will occur very shortly, that is what he will receive. That will, likely, see a slight reduction in his income. However, there is a corresponding, predicable reduction in Ms Allsop’s income in the future, as she will need to sell one of the two income-producing properties, which she relies upon as a self-funding retiree, to pay out Mr Allsop. Accordingly I am not satisfied that factor warrants any adjustment.
The parties maintaining a standard of living that in all the circumstances is reasonable is a relevant factor, but I am satisfied each can and will do so. Certainly, Mr Allsop will, likely, experience a greater diminution in his standard of living, in that he will, for reasons that I will conclude with shortly, be required to find alternate accommodation. He will have funds, however, from that which he will be paid, his bank accounts and from being able to draw upon super, to purchase property. It will be a matter of deciding in which area property is to be purchased that will determine its standard. Certainly – if it is in Sydney, it is likely to be of a lesser standard, although there are other options available perhaps. They are matters for Mr Allsop.
Neither party would benefit from undertaking a course of education or training. They have worked long and hard all of their life. They are at the end of their working lives for various reasons.
There is no impact upon creditors. All debts will be paid out in full, particularly, in light of the orders proposed by Ms Allsop, all mortgages will be discharged, although it is a matter for her and her financial advice, as to whether that is the course she wishes ultimately to pursue. She will be in a position to do so. Neither party has any other debt.
The marriage has been for 40 years. Whilst I accept it has affected the income and earning capacity of both parties, Mr Allsop no longer able to work due to work-related injuries and Ms Allsop from her absence from the workplace, parenting children, it is now a nugatory point, as each is of retirement age.
Neither has a role of home-maker or parent to be preserved.
Neither is cohabiting with any other person.
There is no issue with respect to bankruptcy, child support or similar matters.
I am not satisfied there are other facts or circumstances beyond those already discussed above that would be relevant or requirement address (the Kennon argument having already been addressed by reference to this factor and findings of contribution pursuant to section 75(2)(o)).
On that basis and adopting the preferred global approach, I am satisfied that the assessment of contribution of 66 per cent would be the end of the issue. The net consequence of that would be that Mr Allsop would need to receive assets with a total value of $821,118.02. Mr Allsop already retains, through his very modest motor vehicle, savings and superannuation, items totalling $561,974. Accordingly to reach his appropriate entitlement he would need to receive a further $259,144.02. I propose for ease of calculation, if nothing else, to round that sum slightly to the figure already indicated, $260,000.
The other and final issue in the case is who is to retain the home. I propose to make orders as are sought by Ms Allsop so that she retains the home. I accept that this will impose upon Mr Allsop the need to leave that home and in circumstances wherein a property is to be sold, that will leave him, for some little time, using his own resources before he is paid out as it were. That is, whilst only a very modest address of that concern, a further reason to round up the figure.
The wife gives cogent reasons within her Affidavit material as to why she wishes to retain the home and why it is preferable from her perspective. The husband also has cogent reasons, whether set out in his material or not, and I am satisfied it is one aspect of the evidence that can perhaps be inferred.
I accept the submissions put on behalf of Mr Allsop that Mr Allsop has spent a great deal of time and effort renovating the property, that it is his home, it will cause him cost if he is required to leave, he is comfortable, content and somewhat attached to and familiar with that accommodation. Mr Allsop puts, in the alternative, that if he is not to remain, that it might be preferable for the home to be sold, and the proceeds would then fund any adjustment of property as between the parties. I am not satisfied that this should occur.
It is not to suggest that an adverse “wisdom of Solomon” approach applies, that the wife retains the home because she does not seek its sale. It was made clear during the wife’s cross-examination, that if the property needed to be sold, then in her pragmatic attitude – so be it. However, there is nothing much to be gained by the parties’ selling the property, if one can effect a division of assets without its sale. If the property were to be listed for sale then, I accept, as is submitted on behalf of Mr Allsop, that either party could be given permission, assuming it were required, to make offers or bid at auction and purchase the property. But that would then incur additional cost in stamp duty and the like as well as significant costs in relation to conveyancing and even-more-substantial cost in relation to agents and auctioneers.
I am satisfied, fundamentally, that the issue that tips the matter in Ms Allsop’s favour, albeit a fine balance, is that she is in a better position to fund the purchase. For the husband to retain the property on the basis of the above percentage division, 66-34%, the husband would need to pay to the wife $480,000. Whilst that is theoretically within the husband’s capacity, it would leave him with nearly no savings or superannuation. He would then have a property which he would need to maintain on an aged pension. He would be asset rich and income poor. It would be more onerous for him, although it may be a burden he is more than happy to take on. But, on balance, I am satisfied that the wife’s position should be favoured.
For those reasons I make orders, predominantly, in accordance with Ms Allsop’s application and as amended and subject to the following.
I propose to make some minor adjustment to paragraph 4 of the orders as sought to make clear or perhaps clearer how the net proceeds of sale of the Property B property owned by the wife are to be distributed I will read that portion of the order onto the record, whereas the balance need not be transcribed at this point. The parties are also in negotiation to conclude a minute as to how furniture and contents within the home will be divided between them so as to minimise cost, inconvenience and, most importantly, future conflict. Accordingly, once that minute is available, whether today or otherwise, orders will be made by consent between the parties. They each seek in their respective application an equal division of furniture and contents, excluding their personal items, and, accordingly, it should be non-contentious as to the form of the order.
For those reasons, however, I make orders in accordance with paragraphs 1, 2 and 3 of the wife’s Amended Initiating Application, paragraph 4 but subject to slight amendments but, ultimately, to require payment by Ms Allsop to Mr Allsop, or as he may direct in writing, a sum of $260,000.
I certify that the preceding one hundred and ninety-six (196) paragraphs are a true copy of the reasons for judgment of Judge Harman
Date: 19 February 2019
Key Legal Topics
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Family Law
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Equity & Trusts
Legal Concepts
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Costs
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Remedies
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Procedural Fairness
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Consent
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Jurisdiction
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