Bamford and Bank

[2016] FCCA 958

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAMFORD & BANK [2016] FCCA 958

Catchwords:
FAMILY LAW − De facto property − whether family violence made defacto wife’s contributions more onerous − whether family violence reduced defacto wife’s income earning ability.

Legislation:

Family Law Act 1975 (Cth), ss.4AB, 60(1), 4AA, 90SF, 90SM

Evidence Act 1995 (Cth), ss.59(1), 66A, 79

Cases cited:
Kennon v Kennon (1975) FLC 92-757

Applicant: MR BAMFORD

Respondent: MS BANK

File Number: DGC 859 of 2014

Judgment of: Judge Phipps

Hearing date: 9 November 2015

Date of Last Submission: 9 November 2015

Delivered at: Dandenong

Delivered on: 29 April 2016

REPRESENTATION

The Applicant: Appearing on their own behalf

Counsel for the Respondent: Dr Alexander

Solicitors for the Respondent: JH Legal Pty Ltd

ORDERS

1. That by 30 June 2016 ("the date”) the respondent give the applicant notice in writing (“the notice”) that she can pay him the sum of $18,508.50.50 (“the amount”) upon his transferring to her his interest in the property known as and situated at Property F (“the Property F property”).

2. That upon the notice being given on or before the date the applicant and the respondent do all things necessary, at the expense of the respondent, to transfer to the respondent the applicant’s interest in the property, including by doing the following:

   (a)Providing documents and information and taking steps as the Director of Housing or the successor to the Director of Housing (“the Director”) requires;

   (b)Signing all documents and taking all steps the Director requires; and

   (c)Otherwise signing documents and taking steps as necessary to transfer the applicant’s interest to the respondent save that any payment required by the Director be made by the respondent.

3. That simultaneously with the transfer of the applicant’s interest in the property to the respondent the amount be paid to the applicant.

4. That in the event the notice has not been given by the date then the parties do all things necessary to sell their interest in the property including:

   (a)Providing documents and information and taking steps as the Director of Housing or the successor to the Director (“the Director”) requires;

   (b)Signing all documents and taking all steps as the Director requires; and

   (c)Otherwise signing all documents and consents and taking all steps necessary to sell the property and complete the sale.

5. That upon completion of the sale, subject to any direction by the Director to the contrary, the proceeds be applied as follows:

   (a)Firstly in payment of the cost and expenses of the sale and in payment to the Director of the amount applicable to the interest of the Director in the property; and

   (b)Secondly by paying the balance by 85% to the respondent and 15% to the applicant.

6. That pending completion of the sale of the property, subject to any direction by the Director to the contrary, the respondent have the sole right to occupy the property and during such occupation pay rent and all rates, taxes and like outgoings of the property as they fall due.

7. That unless specified in these orders, and save the purposes of enforcing any monies due under these or any subsequent orders;

   (a)Each party be solely entitled to the exclusion of the other to all property (including choses-in-action) owned by or in the possession of such party as at the date of these orders (the furniture, personal possessions and like chattels in the property being deemed to be in the possession of the respondent); and

   (b)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.

8. That each party has liberty to apply in respect of the carrying out of these orders.

9. That otherwise all extant applications are dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Bamford & Bank is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 859 of 2014

MR BAMFORD

Applicant

And

MS BANK

Respondent

REASONS FOR JUDGMENT

Introduction

1. Under a Shared Home Ownership Scheme the applicant and the respondent have a 27.42% joint share of the property at Property F (“the Property F property”) as joint tenants with the Director of Housing or the successor to the Director of Housing owning the remaining 72.58%.  This is the only asset of the relationship.  The agreed value of the Property F property is $450,000 so that the value of the parties’ joint share is $123,390.

2. There is some difference between the parties about when their relationship commenced.  They met in 1974 and commenced cohabitation towards the end of 1970.  They separated on 20 April 2012 when police removed the applicant from the house under the provisions of a Family Violence Intervention Order.  There were some periods of separation in between.

3. Currently, the respondent lives in the Property F property and the applicant lives in a special accommodation facility, (omitted) Special Accommodation.  The applicant is very critical of the standard of his accommodation.  He has a carer, provided by the Department of Health and Human Services, who visits him daily.  The applicant’s movement about is largely confined to a wheelchair.

4. The property can be sold and the parties are entitled to their 27.42% interest.  The applicant proposes that the property be shared equally between the parties.  This means selling the property.  He says that with his half share he would be able to obtain and furnish rented accommodation and significantly improve his standard of living.

5. The respondent proposes that she pay the applicant $15,000 and he transfer his interest in the property to her.  She is able to raise this amount of money through borrowing and from her own resources.

Issues and background

1. The parties are at odds about many aspects of their relationship.  The particular issues relevant to a de facto property dispute are:

   a)The financial contribution of each party;

   b)Family violence by the applicant; and

   c)The effect of family violence on the respondent’s income earning capacity.

2. The applicant was born on (omitted) 1947 and is now aged 68 years.  The respondent was born on (omitted) 1950 and is now aged 65 years.  Both are in poor health.  Their only income is Social Security payments.  Neither is capable of any paid employment.

3. For reasons given below I largely accept the respondent’s evidence of what has occurred during the relationship. 

4. Towards the end of 1975, the respondent was living at her grandparents’ residence.  The applicant moved in and the respondent says he was uninvited.  She says the applicant became abusive towards her.  Her friends, also living in the house, did not like him and moved out.

5. In (omitted) 1977 the parties moved to (omitted) in New South Wales for three months in an attempt to get them both off heroin.  The respondent says this was not successful for the applicant.  They moved back to Melbourne in (omitted) 1978.  They stayed at a friend’s flat until the respondent found a house.  The respondent commenced working during this time.

6. Between 1979 and 1984 they lived in three different places.  The respondent paid the rent and utilities.  In (omitted) 1984, they went back to (omitted) again to address drug issues.  Upon return, the respondent says the applicant stopped the van, pulled her out, tore her clothes and pushed her into a ditch.

7. In (omitted) 1985, they were back in Melbourne and stayed at the respondent’s parents’ residence.  The respondent says the applicant again commenced using drugs.  She left for a week and later moved into a flat in (omitted) with the applicant.  She says the applicant continually shouted at her and abused her.

8. In (omitted) 1986, the respondent left the applicant and they remained separated until (omitted) 1987.  She says that she returned when the applicant came to her parents’ home uninvited, collected her belongings and put them in his car.  She said she tried to stop him, they had a physical fight and he dragged her to the car saying “I love you, I need you, I have changed”.  She did not want to go but could not resist his physical and mental force.  She said she was upset but thought she had to try her best to help.

9. The respondent says that from 1989 to 1991 the applicant began to shout at her on a daily basis and pushed her until she fell to the ground.  In 1992, when they moved to the Property F property, she says conditions worsened.  She says he chased her around the house, held her by the arms and shook her.  He would put his hands around her neck push her to the floor.  He would hit her and push her against the walls and furniture around the house.  She says he slept during the day and would be awake at night.  She says he would continuously wake her up at night by making loud banging noises through the night.  Her health deteriorated and she subsequently developed Chronic Fatigue Syndrome.

10. She moved to her parent’s house for three months in 1999 and returned on (omitted) 1999 and moved into the back room.  She says that from 1999 to 2009 she made numerous attempts to leave the applicant but was unable to.  She asked the Director of Housing if there was any provision to dissolve the Shared Home Ownership Scheme.  They advised her to see a lawyer, police and domestic violence professionals.  She says she was too sick to attend appointments that were required to meet with lawyers and to attend at court.

11. The respondent says that by (omitted) 2010, the applicant’s violent behaviour escalated to the point where he would constantly knock on her door when she was trying to sleep.  He damaged the house.  He took her clothing and took her sentimental items such as family gifts.  She gives examples.  She describes the damage he did to the house.

12. She asked a neighbour if she could sleep in his bungalow, which she did.  It was a bungalow only, with no running water available.  She says she returned home every day to clean the house, feed the cat and use facilities at the Property F property.  She said every time she returned the applicant started yelling at her.  She says her health improved slightly which gave her the ability to seek help from a domestic violence service and a community legal service.

13. In September 2011, she filed an application for a Family Violence Intervention Order against the applicant seeking that he stay out of her bedroom and 5 metres away from her and not to damage her property.  The Intervention Order was granted with these conditions. The respondent annexes to her affidavit her application which contains a statement of grounds consistent with her affidavit.

14. The respondent says that after the applicant was served with the Intervention Order he hit her and said words to the effect “you’d better cancel that or your life will be shit”.  She made a statement to the police which annexes and is again consistent with her evidence.

15. In November 2011, she left the home and stayed with her mother for the next few months.  She sought a variation to the Intervention Orders to exclude the applicant from the property.  On 10 April 2012 a final Intervention Order was made against the applicant requiring him to leave the property on 17 April 2012.  She returned on 20 April 2012 and the applicant was still there. She called the police who came and removed the applicant.

16. The respondent says that she and the applicant shared a bedroom until 1985.  After that, the applicant slept in the lounge room during the day, watch TV at night and they did not have sexual intercourse.

17. She says she did not confide in anyone else regarding issues of family violence until 2011, as she did not want to burden anyone else with her problems.

Financial contribution

1. The respondent says from 1975 until (omitted) 1997 the applicant made no contributions towards any bills or rental expenses.  She says she paid for the day-to-day expenses such as food, rates utilities bills, rent and the mortgage.  She says the applicant repeatedly suffered from bouts of drug addiction and spent his money on drugs or personal items.  He purchased a BMW motor vehicle and she says over the years he spent approximately $36,000 on this vehicle.  She sets out the details in an annexure B-5 of her affidavit of 23 July 2015.

2. From 1997, the applicant paid approximately half of the mortgage loan repayments and then later contributed for the rent.  She said he would deduct payments he had made for food that he would occasionally purchase for them both.  He contributed approximately half of the mortgage loan repayments between (omitted) 1997 and (omitted) 2007.

3. The respondent says that she worked from 1972 until 1991.  Since then she has been on a disability pension and recently the old age pension.  The respondent says that the applicant worked for six weeks in 1975 part-time at the (employer omitted), eight months part-time at a (employer omitted), six weeks working part-time in 1985 (occupation omitted) and for a period of four months working at a (employer omitted) in 1989.  The applicant accepts this as correct and says that he also worked as a (omitted), (omitted) and many more occupations.  The applicant says in one of his affidavits that between 1978 and 1985 he was working most of the time.  In cross-examination, he said he had been receiving a pension from 1975 to 2012, a disability pension at first and now the age pension.  The receipt of a disability pension is inconsistent with anything but occasional work.

4. In 1987 the respondent applied for a loan under the Shared Home Ownership Scheme.  At the time she was eligible by herself for a loan under this scheme.  By the time she reached the top of the list she was sick and worked less and required another person to be replaced with her.  In (omitted) 1992, the parties were granted the loan for the purchase of the Property F property.  It was purchased in 1992 for $87,500.  The initial contribution by the parties was $250 by the applicant and $1,750 by the respondent.  The balance of the amount necessary to pay their 27.4% ownership was a mortgage to the Ministry of Housing in the amount of $21,016.18.

5. The respondent and then both parties paid regular amounts in reduction of the mortgage as already described and once that was paid in September 2008, the rent was initially $112.84 per week and in 2014, $152.60 per week.

6. The respondent has prepared a summary of mortgage repayments and rent in annexure B-6 to her affidavit of 23 July 2015.  It sets out that until July 2014 she paid a total of $70,045.69 mortgage payments and $18,170.05 in rent payments, a total of $81,703.82.  The applicant paid $11,658.13.

7. The respondent also says that she paid the majority of food bills.  She says that she has kept records.  I accept that she is a careful record keeper.  When called upon to produce documents she did so and showed that she had a recordkeeping system.  For instance she referred to the records she kept on a calendar, that showed the applicant cooked meals only seven times in a six-month period contrary to his claim that the most of the meals.  She said she had different dietary requirements to the applicant and she prepared different meals.  She gave detailed descriptions of the types of meals.

8. The respondent says that she received payments from her parents in 1990 in the amount of $1,300 via regular payments to her as she was becoming very ill and not working, in 1992 in the amount of $1000 to replace the guttering in the house, in 1992 $1,000 as a house warming present and between 1994 and 2007 deposits of $50 per month totalling $3,400.  The total of these amounts is $6,700.

9. In annexure B5 to her affidavit of 23 July 2015 respondent sets out the amounts the applicant spent on his motor vehicle from 1999 and 2010.  The total is $36,423.19.  She says he purchased a DVD player/recorder for $800 and a TV $1,000.  I infer from the respondent’s evidence that she made little use of the respondent’s motor vehicle and the household goods.  They are usual items to have, given the parties modest income these amounts are extravagant.  The BMW was an old model purchased for very little but while not stated expressly by the respondent the inference is she considers there could have been a less expensive motor vehicle and less expensive household equipment.

10. The respondent is convincing in her evidence about payments made and I accept what she says is correct.  The applicant’s assertions to the contrary are expressed in generalities and I reject them.

Family violence

1. Family violence is defined in s.4AB(1) of the Family Law Act 1975 (Cth) as follows:

   For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.

2. Subsection (2) sets out examples of family violence.

3. The respondent’s description of the applicant’s behaviour is detailed.  It may be that her recollection over time has become exaggerated but I consider it improbable that it is all made up, which it must have been if the applicant’s evidence is correct.  He denies any abusive behaviour or ill treatment.  I am satisfied on the balance of probabilities that in substance the respondent’s description of the applicant’s behaviour during the relationship is correct.

4. The respondent left the applicant on occasions but then returned.  This is consistent with the respondent’s description of not being able to resist the applicant’s pressure and not wanting to involve other people in her problems.

5. Dr R is a consultant physician who has treated the respondent for many years.  The respondent relies on an affidavit sworn by him on 23 July 2015 which annexes two reports.

6. Dr R describes the respondent’s illnesses.  He has concluded that she has been subjected to family violence by the applicant.  He says this:

   Partner abuse is linked to her current medical condition mainly by virtue of contribution and this includes her dependency on opiate medication, her psychological condition, her financial situation, her inability to successfully enjoy employment as well as contribution to chronic fatigue, fibromyalgia and the associated chronic pain and chronic pain syndrome.  Further anxiety state also can clearly be attributed to partner abuse, at least in large degree.  I cannot see a connection between her cardiac condition and partner abuse.

7. In his report he says that at the start she was not particularly forthcoming as to the nature of the applicant’s impact upon her although this has now become more apparent more recently.  He says that when he last saw her in June 2015 she was far more forthcoming and he sets out the description she gave him which is consistent with her evidence.

8. Dr R was not required for cross examination by the applicant.  His affidavit was filed in July 2007, four months before the hearing.  The applicant is self represented.  I take that into account and also that Dr R is the long standing treating consultant physician of the respondent and so might be expected to be sympathetic towards the respondent.

9. Dr R’s statements cannot be taken as evidence of the truth of the respondent’s statements to him about the specific incidents of the applicant’s conduct. This follows from the hearsay rule described in s.59(1) of the Evidence Act 1995 (Cth).

   Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.

10. The hearsay rule does not apply to evidence of the sort described in s.66A of the Evidence Act. It provides:

    The hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person's health, feelings, sensations, intention, knowledge or state of mind.

1. Section 60(1) is relevant as it makes Dr R’s evidence of what the respondent said to him admissible as part of the material upon which Dr R states his specialist opinion as the respondent’s long-standing consultant physician. That section provides:

   The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact.

2. Dr R’s opinion evidence is admissible because he has specialised knowledge as a consultant physician. This follows from s.79 of the Evidence Act 1995 (Cth).

3. Dr R assesses the respondent’s description of the applicant’s behaviour towards her as consistent with some of her illnesses.  In this sense, his opinion corroborates the applicant’s evidence of family violence.

4. The other matter I take into account is that the applicant demonstrates a marked hostility towards the respondent.  In part, this can be attributed to the fact that he regarded himself as having been wrongfully removed from his long-standing home of which he was a part owner.  My assessment is that his hostility goes beyond that and it was there prior to the separation.  His hostility is consistent with the type of demeanour the respondent describes during the relationship. This is a further indication that the respondent’s description of the parties lives together is the correct one rather than the applicants.

5. I am satisfied that the respondent’s description of the applicant’s behaviour over many years is largely accurate.  I am satisfied that his behaviour towards her has contributed towards her state of ill-health as described by Dr R and was a significant factor in her not being able to obtain any except occasional employment since 1991.

Property provisions

1. Section 4AA of the Family Law Act1975 (Cth) contains the definition of a defacto relationship. Each party accepts that their relationship is within the definition. Despite my findings about the financial contributions and family violence I am satisfied that they were in a defacto relationship. The relationship lasted from 1975 on off until April 2012

2. Alteration of property of a defacto relationship is dealt with by s.90SM of the Family Law Act1975 (Cth). The first step is to determine the property. In this case it is the parties’ interest in the Property F residence.

3. The next step is to consider whether it is just and equitable to make an order.  Both parties apply for an order.  The basis upon which they had a shared relationship has come to an end and so it is just and equitable to make the order.

4. The next step is to determine the parties contributions as described in s.90SM(4). Relevantly in this case the considerations the Court must take into account are the financial contribution made directly or indirectly by each party to the acquisition conservation or improvement of the property, the contribution other than a financial contribution made in the same way and the contribution made in the capacity of homemaker.

5. The respondent made the greater financial contribution throughout the marriage.  She worked until 1991 and I am satisfied that she made the mortgage and rent payments that she asserts.  She made all the payments from 1992 until 1996.  The applicant contributed from 1997 until 2007.  The total of the payments the respondent made is $81,703.82 and the applicant $11,658.13.  The respondent continued her payments while she was living away from the Property F house, including a time when she was paying a small amount for using the bungalow next door.

6. The initial contributions towards the purchase of the house were $250 by the applicant and $1750 by the respondent.  The respondent’s parents contributed $6700.  These are modest amounts.  The initial contributions were in 1992 and the parents payments over a period of time so they are affected by the passing of time.  They are small amounts but have to be put in the context of the small property pool of $123,300.

7. The respondent asserts that the applicant’s conduct towards her should be taken into account in assessing contributions.  In Kennon v Kennon (1997) FLC¶ 92-757 the Full Court of the Family Court considered the relevance of conduct in a property application.  The Head Note reads in part:

   per Fogarty and Lindenmayer JJ: –

   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 the party’s contribution to the marriage, this is a factor which a trial Judge is entitled to take into account in assessing the parties respective contributions under s 79.

   Per Baker J:-

   domestic violence in the marriage would generally be a relevant factor when a court comes to assess contributions 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.

8. Fogarty and Lindenmayer JJ said that cases where an allowance would be made are the exception.  This is one of those exceptional cases.

9. As well as making the respondents contribution as a homemaker more onerous is the applicant’s conduct reduced the applicant’s income and income earning ability.  The evidence did not disclose the amount of income the respondent earned more from the rate of that income.  She is a (occupation omitted) and so I infer that her income was modest but not low.  Not all her health problems are referable to the applicant’s conduct.  Dr R assesses the applicant’s conduct as contributing to the respondents illnesses but not wholly responsible for them.

10. I accept the respondent’s evidence that she did more of the cooking and the household tasks than the applicant.  I have to take into account that over many years she had accepted this role.

11. I accept that the respondent made substantially the greater contribution to the deposit, mortgage and rent payments for the property and I accept that she paid at least half the other living expenses of the parties.  She continued payments while she was living away from the respondent and has been making the rent payments since separation.  The payments since separation must be balanced against her sole use of the property.

12. The effect on the respondent’s income earning ability by the applicant’s conduct may be a matter to be taken into account under s.90SF(3) rather than s.90SM(4). Apart from this consideration none of the factors under s.90SM(4) require an adjustment between the parties. Their incomes are equal and remain equal. Both rely on social security payments for the rest of their lives and both have health problems.

13. The respondent made close to 90% of the payments towards the deposit, mortgage repayments and rent on the property. The applicant contributed to an extent to the other expenses during the relationship but less than he alleges. The substantially greater financial contribution by the respondent combined with the effect on her, including her income earning ability of the applicant’s behaviour meant her contributions exceeded that of the applicant by a substantial amount. This is an unusual case. I am satisfied that the applicant made little contribution in the role of homemaker and so there is little to balance against the respondent’s financial contribution. The respondent’s greater financial contribution, the effect on her contribution as homemaker by reason of the applicant’s behaviour, her contribution otherwise as homemaker and the effect on her income earning ability cannot be separated. The respondent’s contribution is 85% and the applicant’s 15%. The effect on the respondents income earning ability by the applicant’s behaviour can be taken into account under s.90SM(4) or under s.90SF(3)(r) or as a fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Phipps

Date: 29 April 2016