ARSHAD & MIATA
[2020] FCCA 3527
•24 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ARSHAD & MIATA | [2020] FCCA 3527 |
| Catchwords: FAMILY LAW – PROPERTY – Undefended hearing – de facto relationship – application pursuant to s.90SM for property adjustment – family violence – Kennon & Kennon claim. |
| Legislation: Family Law Act 1975 (Cth), ss.44, 90SF, 90SM, 106A, 121 |
| Cases cited: Baghti & Baghti and Ors [2015] FamCAFC 71 Bevan & Bevan [2014] FamCAFC 19 Black & Kellner [1992] FamCA 2 Brisbane South Regional Health Authority v Taylor [1996] HCA 25 Britt & Britt [2017] FamCAFC 27 Chapman & Chapman [2014] FamCAFC 91 Gallo v Dawson [1990] HCA 30 Horrigan & Horrigan (No.2) [2018] FamCA 937 In the Marriage of Weir [1992] FamCA 69 Jacenko & Jacenko [1986] FamCA 25 Kennon & Kennon[1997] FamCA 27 Peters & Walker [2015] FamCA 732 Russell & Russell [1999] FamCA 1875 Scott & Danton [2014] FamCAFC 203 Sharp & Sharp [2011] FamCAFC 150 Slocomb & Hedgewood [2015] FamCAFC 219 S & S [2003] FamCA 905 Stanford v Stanford [2012] HCA 52 Teal & Teal [2010] FamCAFC 120 Whitford & Whitford [1979] FamCA 3 |
| Applicant: | MS ARSHAD |
| Respondent: | MR MIATA |
| File Number: | PAC 2006 of 2019 |
| Judgment of: | Judge Obradovic |
| Hearing date: | 30 October 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 24 December 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Schroder |
| Solicitors for the Applicant: | Jaqueline Kyle Family Law |
| Appearing for the Respondent: | No appearance |
THE COURT ORDERS THAT:
Pursuant to section 44(6)(a) of the Family Law Act1975 (Cth) the applicant is granted leave to commence these proceedings out of time.
The respondent forthwith do and say all things and sign all documents necessary to transfer to the applicant all his right, title and interest in the property situated at and known as B Street, Suburb C in the State of New South Wales (‘the B Street, Suburb C property’) being more fully described in the Certificate of Title Folio Identifier ....
Within 90 days of the transfer in Order 2 being effected the applicant shall refinance registered mortgage ...56 to the Westpac Banking Corporation secured upon the said property into her sole name and shall indemnify the respondent in relation to the said mortgage.
The respondent retain and the applicant shall have no right, entitlement nor interest to the following:
(a)All bank and investment accounts and stocks and shares standing in his sole name;
(b)All superannuation benefits belonging to or earned by him;
(c)All goods and chattels in his possession as at the date of the making of these Orders; and
(d)All real property standing in his sole name.
The applicant retain and the respondent shall have no right, entitlement nor interest to the following:
(a)All bank and investment accounts and stocks and shares standing in her sole name;
(b)All superannuation benefits belonging to or earned by her;
(c)All goods and chattels in her possession; and
(d)All real property standing in her sole name.
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 the orders made herein, 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 to do all acts and things necessary to give validity and operation of the said deed, document or instrument, upon the Registrar being satisfied of such refusal or failure, verified by way of Affidavit.
IT IS NOTED that publication of this judgment under the pseudonym Arshad & Miata is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 2006 of 2019
| MS ARSHAD |
Applicant
And
| MR MIATA |
Respondent
REASONS FOR JUDGMENT
Introduction
These are reasons for judgment with respect to a property adjustment application filed by the applicant on 1 May 2019 seeking orders pursuant to s.90SM of the Family Law Act1975 (Cth) (‘the Act’).
The parties to the proceedings are the applicant de facto wife Ms Arshad and the respondent de facto husband Mr Miata.
The parties commenced a relationship in 2000 and separated on a final basis in June 2010.
There are three children to the relationship.
The respondent has not engaged in the proceedings. The application has therefore proceeded on an undefended basis.
Orders Sought
The applicant seeks the following final orders:
a)That pursuant to s.44(6)(a) of the Act the applicant be given leave to commence proceedings for property adjustment out of time.
b)That the respondent forthwith do and say all things and sign all documents necessary to transfer to the applicant all his right, title and interest in the property situated at and known as B Street, Suburb C, in the State of New South Wales (‘the B Street, Suburb C property’) being more fully described in the Certificate of Title Folio Identifier ....
c)That within 90 days of the transfer in order 2 being effected the applicant shall refinance registered mortgage ...56 to the Westpac Banking Corporation secured upon the said property into her sole name and shall indemnify the respondent in relation to the said mortgage.
d)A declaration that the respondent retain and the applicant shall have no right, entitlement nor interest to the following:
(i)All bank and investment accounts and stocks and shares standing in his sole name;
(ii) All superannuation benefits belonging to or earned by him;
(iii)All goods and chattels in his possession as at the date of the making of these Orders; and
(iv) All real property standing in his sole name.
e)A declaration that the applicant retain and the respondent shall have no right, entitlement nor interest to the following:
(i)All bank and investment accounts and stocks and shares standing in her sole name;
(ii) All superannuation benefits belonging to or earned by her;
(iii) All goods and chattels in her possession; and
(iv) All real property standing in her sole name.
The applicant argues that there should be a 80% division of property in her favour on contributions, with a further 20% adjustment for s.90SF(3) factors, totalling a 100% adjustment of the pool to her.
Procedural History
The Initiating Application was filed in the Family Court of Australia on 1 May 2019. An order was made on 5 September 2019 by a Registrar transferring the matter to the Federal Circuit Court of Australia.
The application was listed before a Registrar in this Court in the Discrete Property List for first return on 10 February 2020. Substituted service orders have been made and complied with.
On 21 September 2020 the matter was set down for final undefended hearing on 30 October 2020. The respondent has failed to engage in the proceedings by either appearing before the Court, providing financial disclosure to the applicant or by filing a Response to the Initiating Application as required by the Federal Circuit Court Rules 2001 and orders made.
Application to commence proceedings out of time
Section 44(5) of the Act relevantly provides that subject to subsection (6), a party to a de facto relationship may apply for:
a)an order under ss.90SE, 90SG or 90SM; or
b)declaration under s.90SL;
only if the application is made within the period of two years after the end of the de facto relationship (“the standard application period”).
Section 44(6) of the Act states that the Court may grant the party leave to apply after the end of the standard application period if the Court is satisfied that:
a)hardship would be caused to the party or a child if leave were not granted; or
b)in the case of an application for an order for the maintenance of the party—the party’s circumstances were, at the end of the standard application period, such that he or she would have been unable to support himself or herself without an income tested pension, allowance or benefit.
The discretion to grant leave to commence proceedings outside of the two year limitation period, is a discretion to grant, not a discretion to refuse.[1] The applicant bears the onus of showing that the justice of the case requires the exercise of the discretion in her favour.[2]
[1] Brisbane South Regional Health Authority v Taylor [1996] HCA 25 at [13] per Toohey & Gummow JJ.
[2] Brisbane South Regional Health Authority v Taylor [1996] HCA 25 at [3] per McHugh J, with Dawson J agreeing.
Whilst the Full Court in Whitford & Whitford[3] considered that the power to extend time ought be exercised “liberally in order to avoid hardship” the Court also stated that it should be done
… in a manner, which would not render nugatory the requirement that proceedings should be instituted within … [the limitation period].
[3] [1979] FamCA 3 at [41] (“Whitford”); in the context of proceedings between parties to a marriage
The Court must consider whether the applicant has established: [4]
1)A reasonable prima facie case for relief had proceedings been instituted in time;
2)That denial of the claim would cause the applicant hardship; and
3)An adequate explanation as to the delay.
[4] Jacenko & Jacenko [1986] FamCA 25 at [17] per Nygh J; referred to in Slocomb & Hedgewood [2015] FamCAFC 219 at [43].
In appropriate cases the degree of hardship to be suffered by the applicant may well outweigh an inadequate explanation of delay.[5]
[5] Slocomb at [43] in Jacenko.
Once the three elements are satisfied, in determining whether to exercise its discretion to grant relief, the question of prejudice which the respondent would suffer by reason of the delay in bringing the application ought to be considered.[6]
[6] Slocomb at [43] in Jacenko.
Once the legislature has selected a limitation period, to allow the commencement of an action outside that period is prima facie prejudicial to the respondent who would otherwise have the benefit of the limitation.[7]
[7] Brisbane South Regional Health Authority v Taylor [1996] HCA 25 at [1] per Dawson J.
Even if the Court came to the view that there was no significant prejudice to the respondent, the Court may consider whether in all of the circumstances, it is just and reasonable to grant the extension sought.[8] It might be said that the fundamental issue to be considered in any application for extension of time is whether this will enable the Court to do justice between the parties by reference to the relevant discretionary considerations.[9]
[8] Sharp & Sharp [2011] FamCAFC 150 at [97] (“Sharp”).
[9] Gallo v Dawson [1990] HCA 30 at [2] per McHugh J.
Finally, the appropriate approach to a determination for leave to commence proceedings out of time necessitates a clear distinction to be made between the proof of hardship and a consideration of the consequential exercise of discretion.[10]
[10] Sharp at [27].
Hardship
Hardship for these purposes is more than the loss of a right to commence proceedings. It is the consequences attending the loss of the right to commence proceedings that constitutes hardship.[11]
[11] Sharp at [17].
In Sharp & Sharp the Full Court said[12]:
[18] In assessing hardship in this context the well established test is that the Applicant must have a prima facie claim worth pursuing or a “real” probability of success. Further, leave will not be granted if to do so would not, in the substantive result, alleviate that hardship. However, whether or not hardship exists is not to be assessed only by reason of the monetary value of the probable order to be made if leave were granted.
[12] In the context of ss 44(3) and (4) of the Act.
In considering the meaning of hardship, in Whitford [13] the Court said:
... The requirement, that the Court must be satisfied that hardship would be caused if leave were not granted, implies that it must be made to appear to the Court that the Applicant would probably succeed, if the substantive application were heard on the merits. If there is no real probability of success, then the Court cannot be satisfied that hardship would be caused if leave were not granted … If the probable result of the hearing on the merits is that the hardship is not likely to be alleviated, then the Court cannot be satisfied that the Applicant or a child would suffer hardship if leave were not granted.
… As a general proposition it might be said that, the inability of an Applicant to pursue a claim which in the circumstances of the Applicant or a child of the marriage is trifling, generally will not cause hardship. Similarly, where the costs which the Applicant will have to bear himself or herself are about as much or more than what the Applicant is likely to be awarded on a property claim, ordinarily hardship would not result if leave to institute proceedings were not granted. But otherwise we find no warrant… for saying that the right or entitlement lost must be a substantial one. (emphasis in original)
In an appropriate case, and depending on the circumstances of the Applicant or the children, hardship may be caused by the loss or deprivation of something which is of comparatively small money value …
[13] Whitford [1979] FamCA 3 at [31] quoted by the Full Court in Sharp at [19] – [21], in the context of ss 44(3) and (4).
It will only be if the applicant is successful in demonstrating hardship of the type discussed that she must then persuade the Court that in the exercise of its discretion, leave should be granted.
Discretion
In Whitford the Full Court continued[14]:
Section 44(4) [[15]] inhibits the granting of leave unless the requisite case is made out, but it does not provide that leave must be granted if the Court is satisfied that hardship would be caused … Due weight must be given to the expressed legislation intendment that ordinarily, proceedings should be commenced within … [the limitation period]… Hence, such matters as the length of the delay, the reasons for the delay and prejudice occasioned to the Respondent by reason of the delay, and the strength on the merits of the Applicant’s case, and the degree of the hardship which would be suffered unless leave were granted, are matters affecting the exercise of the discretion. These matters are not necessarily the only ones…
On the other hand, [the relevant sections]… point to the conclusion that the legislature intended to confer power on the court to grant leave to institute proceedings in order to avoid hardship. Having regard to the nature of the jurisdiction which this court exercises, this power should be exercised liberally in order to avoid hardship, but nevertheless in a manner, which would not render nugatory the requirement that proceedings should be instituted within… [the limitation period].
[14] At [39] – [40].
[15] Note in de facto proceedings it is s44(6) which is relevant.
The applicant seeks leave pursuant to s.44(6)(a) of the Act to commence proceedings out of time.
The applicant concedes that the parties separated in 2010 and that application has been filed out of time. The applicant explains that due to the abhorrent family violence inflicted upon her by the respondent, she was too frightened to initiate proceedings as it would create further conflict between them. She also states that she was under great stress raising three children on her own and that she did not have the emotional or financial resources to initiate proceedings until now.
In light of the significant financial contributions made towards the subject property, the applicant asserts that she would suffer hardship and injustice if the Court does not grant her leave to commence property adjustment proceedings out of time. In consideration of the respondent’s minimal contributions made towards the property, the applicant asserts that there would be an unjust enrichment of the de facto husband if property adjustment orders are not made.
The applicant contends that the respondent will suffer no prejudice by the delay.
Property adjustment - relevant legal principles
The overall approach to the determination of an application for property adjustment orders was set out by the High Court in Stanford v Stanford.[16]
[16] [2012] HCA 52 see in particular [37] to [42].
Such approach was subsequently considered by the Full Court of the Family Court in Bevan & Bevan[17], Chapman & Chapman[18] and Scott & Danton.[19] Such an approach is also applicable to proceedings pursuant to the de facto relationships provisions of the Act, namely Part VIIIAB.[20]
[17] [2014] FamCAFC 19 (“Bevan”).
[18] [2014] FamCAFC 91.
[19] [2014] FamCAFC 203.
[20] See for example: Peters & Walker [2015] FamCA 732.
Once the issue of whether it is just and equitable to make any order is resolved, the Court is to then consider the contributions made by the parties as defined in s.90SM(4)(a) to (c), the matters set out in s.90SM(4)(d) to (g) and in particular the subjective considerations as to the parties by having regard to the provisions of s.90SF(3) in so far as they are relevant.
The Court is then to consider the justice and equity of the actual orders to be made, in the context of the Court’s obligations to make appropriate orders as provided for in s.90SM(1) of the Act.[21]
[21] See generally Russell & Russell [1999] FamCA 1875; Teal & Teal [2010] FamCAFC 120, but in the context of s79.
The just and equitable requirement is “one permeating the entire process”.[22]
[22] Bevan at [86].
Both parties are obliged to make full and substantive disclosure of their financial affairs. [23] Where there is clear evidence of non-disclosure, as is the case in this matter, the Court should not be unduly cautious about making findings in favour of the innocent party.[24]
Court’s determination
[23] Black & Kellner [1992] FamCA 2.
[24] In the Marriage of Weir [1992] FamCA 69 at [33].
Relevant factual findings
The parties began living together in 2000. At the time cohabitation commenced the applicant was 16 years old and the respondent was 23 years old.
In 2000 the applicant was employed casually by Employer D and worked 40 hours per week.
The applicant had the following assets:
a)A motor vehicle (value not disclosed)
b)Approximately $2000
c)Personal items (value not disclosed)
In 2000 the respondent had recently been released from jail, was not employed and was in receipt of Centrelink benefits. The respondent did not have any assets.
In late 2000 the respondent was convicted of contravening an Apprehended Personal Violence Order in relation to a neighbour. The respondent was sentenced to 12 months imprisonment, suspended on entering into a bond to be of good behaviour for 12 months.
In 2001 the applicant obtained permanent employment at Employer D and commenced studying at TAFE to obtain her Higher School Certificate.
In late 2001 the respondent had his driver’s license disqualified for a period of two years. Consequently, the respondent relied on the applicant for transportation.
From mid 2003 to early 2004 the respondent spent seven months in jail for breach of probation. He did not earn any income during this period.
In 2005 the respondent found employment as a factory worker earning $30,000 per annum.
In 2005 the parties’ first child, X was born.
In 2005 the applicant commenced employment as a customer service officer with Employer E earning $35,000 per annum.
In 2006 the parties purchased the B Street, Suburb C property in joint names for $281,000. The initial deposit of $27,397.50 was provided by the applicant. The respondent did not make any direct financial contributions towards the deposit. The parties secured a $252,900 mortgage from Westpac Banking Corporation, with the applicant listed as the primary borrower.
Following settlement the parties spent $7,000 carrying out renovations to the property including installing a new kitchen, bathroom, blinds and floorboards as well as painting the interior. The home improvements were completed by the parties themselves.
The applicant made majority of the repayments on the home loan. When the respondent was employed he would also make repayments, however the respondent would also make regular redraws from the mortgage.
In 2008 the parties’ second child, Y was born.
Between August 2006 and June 2010 the parties separated on a number of occasions, for a total period estimated to be about two years. During separation periods the respondent did not contribute to the mortgage repayments or the cost of maintaining the property, while the applicant remained living in the home with the children. The respondent also rarely paid any child support.
Following an incident (detailed below) in 2008 the respondent was convicted of fail/refuse to undergo breath analysis, was fined $450 and had his driver’s licence disqualified for three years. The applicant was then required to drive the respondent to and from work each day.
In 2009 the parties’ third child, Z was born.
The parties separated on a final basis in June 2010. The applicant remained living in the former matrimonial home with the children, and remained the children’s primary carer.
At the time of separation $214,844 was outstanding on the mortgage. Following separation the applicant has continued to pay the mortgage repayments and property maintenance costs. The respondent has not made any contributions, financial or otherwise.
On 29 June 2010 the applicant’s mother gifted the applicant $10,000 which was used to towards the mortgage.
The applicant continued to provide transportation services for the respondent after separation.
The applicant also pays for the children’s school fees and extra-curricular activities. The respondent has not contributed to any of these expenses.
The mother has had two children with a different partner following her separation from the respondent. F was born in 2018. G was born in 2019. The mother is no longer in a relationship with that children’s father.
On 8 May 2020 the respondent began paying child support of $25 per week. On the applicant’s evidence it appears that as at the date of the hearing the respondent was approximately $17,263 in arrears of child support payments.
The respondent has had a limited relationship with his children post-separation. The respondent does not initiate time with the children and the applicant facilitates time between the children and their father when the children ask her to.
X is currently seeing his father approximately once a month. Prior to 2020 this occurred approximately once a year.
Y spends little time with her father. They see one another approximately once or twice a year and that there have been yearlong gaps between visits post separation.
Z sees his father approximately once a month. In 2020 this time has progressed into overnight time.
Family Violence
The applicant has made allegations of family violence against the respondent. She asserts that she was routinely hit, punched, kicked and dragged by the hair. The applicant recalls in her evidence specific incidents of violence, but notes that they are only some of the many occurrences of family violence which took place over the course of their relationship.
The Court is not required to make findings of fact in respect of every assertion raised by the parties.[25] A Court need only determine those facts that are necessary for the determination of the issues between the parties.[26]
[25] Baghti & Baghtiand Ors [2015] FamCAFC 71 at [63] (“Baghti”)
[26] Baghti [2015] FamCAFC 71 at [63].
The respondent has not put on any evidence. The applicant’s evidence is therefore uncontested.
In the circumstances of this case, the Court finds that the allegations of family violence are proven and finds as follows:
a)In 2002 the respondent dragged the applicant by the hair and covered her mouth and nose so she couldn’t breathe.
b)On another occasion in 2002 the applicant was driving in a car with the respondent who had been drinking. The respondent slammed the applicant’s head into the driver’s side window and then poured a bottle of water over her head.
c)In or about 2002 the respondent followed the applicant to the shops which were located near their home at the time. The respondent punched the applicant in the upper body repeatedly and then dragged her home by her hair.
d)In 2004 the respondent slapped the applicant repeatedly across the face. She was pregnant with Z at the time of the incident.
e)In 2006 the parties attended a wedding together. In a hotel room after the reception the respondent kicked and punched the applicant while she layed on the ground. The applicant bled profusely from her face and her dress was torn as a result of the respondent’s violence.
f)On 29 November 2008 the respondent pulled the applicant’s hair, shouted abuse at her and then drove away. The respondent was intoxicated at the time. The applicant called the police who attended to the property and took notes of the event. Shortly thereafter the respondent returned to the matrimonial home and punched the applicant repeatedly. As a result, the applicant’s tooth was chipped and she was unable to see out of both of her eyes. An ambulance was called and the applicant was taken to M Hospital. Y was only six weeks old at the time and accompanied her mother in the ambulance. The respondent was located by the police and it was then that he was charged for failing to undergo breath testing which resulted in a driver’s license disqualification of three years.
g)The respondent was also charged with assault occasioning actual bodily harm, however the applicant was too afraid to give evidence against him, resulting in no conviction. An Apprehended Domestic Violence Order was made against the respondent, with the applicant as the protected person, for a period of two years.
h)After the parties had separated the respondent continued to make demands that the applicant drive him to and from work. On 12 November 2010 while the applicant drove the respondent to work, the applicant stated that she was unwilling to pick the respondent up from work that afternoon. A dispute between the parties broke out which ended with the respondent calling the applicant a “fucking slut” and punching her on the left side of her face, causing a black eye. The incident was again reported to the police by the applicant and the respondent was charged with assault occasioning actual bodily harm. The applicant was again too afraid to give evidence against the respondent in Court, resulting in no conviction.
i)In 2011 the respondent spent the night at the applicant’s home after celebrating Z’s birthday. The next day the applicant asked the respondent to assist in cleaning the house after the party. The respondent shoved, punched and choked the applicant. The applicant called the police shortly after. The respondent was charged with assault occasioning actual bodily harm. The applicant was again too afraid to give evidence against the respondent in Court, resulting in no conviction.
Should leave to proceed out of time be granted?
Having regard to all of the matters set out in these reasons, the Court is satisfied that the applicant would suffer hardship if leave to commence proceedings out of time was not granted.[27]
[27] A finding that the applicant has an arguable case is superfluous in circumstances where the substantive proceedings were heard at the same time as the application for leave to proceed out of time. But lest there be any confusion, the Court finds for the purposes of the application to commence proceedings out of time, that the applicant has an arguable case.
The hardship which would be suffered by the applicant, if leave was not granted, would be significant. She has the sole care of the children of the relationship and is required to provide solely for their housing, financial support, health and education needs. In circumstances where the applicant has made the sole financial contributions towards the property post separation, and the respondent has acquiesced in the applicant remaining in the parties’ former home, it would be manifestly unjust and inequitable to refuse her leave to commence proceedings out of time.
In coming to this conclusion, the Court finds that the applicant has provided an adequate explanation for the delay and that there is no prejudice asserted by the respondent, and the prejudice which might be inferred does not outweigh the hardship which would otherwise be suffered by the applicant.
Kennon Claim
The allegations of family violence are raised by the applicant in the context of a Kennon & Kennon[28] claim. The applicant urges the Court to make a finding that her contributions were made more onerous by the family violence which was visited upon her at the hands of the respondent.
[28] [1997] FamCA 27.
In order to establish that an adjustment ought to be made for these reasons, the applicant has the onus to not only establish facts to the requisite standard of the course of conduct which is alleged and required to make such a case, but also to demonstrate that such conduct has had a significant adverse impact upon her contributions or made her contributions more arduous than they ought to have been.[29]
[29] See Kennon & Kennon [1997] FamCA 27.
In S & S[30] the Full Court referred to Kennon and emphasised that:
The question is whether a trial judge may infer from the evidence that the result must be that a party’s contributions have been affected.
[30] [2003] FamCA 905 at [42] (“S & S”).
Furthermore, the Full Court in Britt & Britt[31] considered whether the evidence was capable of establishing a claim that the appellant’s contributions were made more onerous by the conduct of the respondent and said:
The respondent submitted that the appellant’s evidence was not relevant to an issue because even if it was evidence of family violence, the appellant had called no evidence to suggest that the violence had made her contributions more onerous. This submission overlooks the obvious point that the court can infer from appropriate evidence that there was a nexus between the conduct and the relevant contributions.
[31] [2017] FamCAFC 27 at [74] cited in Horrigan & Horrigan (No.2) [2018] FamCA 937at [231].
The applicant has detailed systemic family violence and findings of family violence have been made herein. She submits that as a result of the family she carried out her domestic homemaker and child rearing duties in a climate where she feared physical injury constantly. The applicant submits that her unwillingness to give evidence against the respondent’s violence demonstrates her on-going fear of harm.
The applicant also claims that as a result of the family violence she has been affected psychologically and physically. The applicant has not however provided medical evidence to this effect.
There is no direct evidence in the applicant’s case going to the nexus between such violence and the applicant’s contributions being more arduous or that there has been a significant adverse impact upon her contributions. Indeed her evidence is silent as to the impact of the violence she alleges and which has been found.
As the Full Court held, it is necessary to provide evidence to establish the incidence of domestic violence and the effect of domestic violence. It is also necessary for the applicant to establish evidence sufficient to enable the court to quantify the effect of that violence upon the parties’ capacity to "contribute" as defined by s.90SM(4).[32]
[32] S & S at [47]-[48].
In the present case, given the findings of abhorrent family violence, the Court finds, as a matter of inference if nothing else, that the applicant’s non-financial contributions were more arduous as a result of the family violence perpetrated by the respondent on her.
Pool of Assets and Determination as to Adjustment
At final hearing the parties had the following assets:
Assets:
Asset
Owner
Value
B Street, Suburb C
Joint
$640,000.00
Westpac Account
Applicant
$37,728.00
H Shares
Joint
$1,869.00
J Shares
Joint
$1,189.00
Motor Vehicle 1
Applicant
$30,000.00
Total
$710,786.00
Liabilities:
Liability
Owner
Value
Mortgage on B Street, Suburb C property
Joint
$72,508.00
Car Loan
Applicant
$31,343.00
Total
$103,851.00
Superannuation:
Fund
Member
Value
Super Fund K
Applicant
$22,278.00
Super Fund L
Applicant
$47,138.00
Total
$69,416.00
The parties have been separated for as long as they were together.
At the commencement of the parties’ relationship, neither party had assets or savings of significance. They were both very young, the applicant particularly so.
The contributions by the applicant during the parties’ relationship are significantly in her favour, not only by way of contributions but also by those contributions being made more arduous due to the respondent’s violence towards her.
During the parties’ relationship, the respondent was incarcerated for periods of time, and there were periods of time where he was not employed. The parties had periods of separation during which the applicant remained in the occupation of the parties’ home and made almost exclusive financial and non-financial contributions towards not only the parties’ assets, but to the welfare of the family. Consequently, throughout the parties’ relationship the applicant had made contributions greater than those of the respondent.
By reason of the applicant’s employment with Employer E the parties were able to obtain a favourable home loan to purchase the home at B Street, Suburb C.
The contributions by the applicant post separation are overwhelmingly in her favour. Firstly, not only was she the sole financial and non-financial contributor, but she also made a lump sum payment of $10,000 in 2010 towards the mortgage. Since separation, the mortgage to Westpac has been reduced from $214,844 to $72,508 solely as a result of the applicant’s financial contributions.
The applicant was effectively the sole provider both financially and as homemaker and parent post separation. During this time the children have progressed without any homemaker and parenting support from the respondent. The respondent has failed to meet his legal financial obligations towards the maintenance of the children and is in significant arrears of child support.
The applicant currently has a Motor Vehicle 1 in her name. It is a vehicle which is encumbered and is a post-separation acquisition by the applicant. The respondent has not made any contribution, of whatever kind, to this asset. It is therefore appropriate that it be excluded from the balance sheet.
The applicant’s Super Fund K was likewise acquired post-separation in its entirety, and for similar reasons will not be included on the balance sheet. The moneys currently held in a bank account operated by the applicant in the amount of $37,728 were all acquired and/or saved post-separation, and the respondent has had no hand in it. These moneys will not be included on the balance sheet.
At separation, the respondent retained a Motor Vehicle 2. It is unknown what the value of this vehicle was at the time or if the vehicle is still in existence.
As such, the assets divisible for the purposes of a property adjustment order are as follows:
a)B Street, Suburb C, net value: $567,492
b)H Shares: $1,869
c)J Shares: $1,189
d)Super Fund L: $47,138
TOTAL: $617,688
As the respondent has not participated in these proceedings there has been no disclosure of his financial circumstances, assets or liabilities. The only evidence before the Court as to the parties’ assets and contributions is that of the applicant. In those circumstances, the Court will not be unduly cautious about making findings in favour of the applicant.
The Court finds that the overall contributions are in the applicant’s favour as to 85/15.
Having regard to the relevant s.90SF(3) factors as follows:
a)The applicant is in good health and earning to her full-capacity. Her income is modest and she is in receipt of government benefits.
b)The applicant has property and financial resources as found herein.
c)The applicant has the sole care of the parties’ three children who are now 15, 11 and 10 years of age. She will continue to be their sole financial and emotional provider. The children will continue to live with her in the former matrimonial home. As noted earlier, the respondent is in significant arrears as to child support.
d)The applicant also has the responsibility of two other young children, aged 2 years and 1 year respectively.
e)The respondent’s position as to any of these matters is not known.
there should be a further adjustment of 15% in the applicant’s favour.
The result therefore is that the applicant would retain the entirety of the assets identified at paragraph 92 above. This is an outcome which is just and equitable in all of the circumstances. Orders are made accordingly.
I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Associate:
Date: 24 December 2020
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