Barbour & Barbour
[2024] FedCFamC2F 989
•19 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Barbour & Barbour [2024] FedCFamC2F 989
File number(s): NCC 1290 of 2023 Judgment of: JUDGE BETTS Date of judgment: 19 July 2024 Catchwords: FAMILY LAW – Property – thirty-one year relationship – where there are two major assets, being the two jointly owned properties from the relationship – where the wife seeks to retain the property she resides in – where the Court must consider the value of the two real properties – where the wife seeks an adjustment under Kennon – where the Court must assess the husband’s conduct and non-disclosure throughout the proceedings – whether there should be any s75(2) adjustments – just and equitable outcome. Legislation: Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth), Pt VIII
Cases cited: Black & Kellner (1992) FLC 92-287
Britt & Britt (2017) FLC 93-764
Hickey v Hickey & Attorney General for Commonwealth of Australia (Intervener) (2003) FLC 93-143
Keating & Keating [2019] FamCAFC 46
Kennon& Kennon (1997) FLC 92-757
Mezzacappa & Mezzacappa (1987) FLC 91-853
S & S [2003] FamCA 905
Stanford & Stanford (2012) FLC 93-518
Division: Division 2 Family Law Number of paragraphs: 146 Date of last submission/s: 5 July 2024 Date of hearing: 2, 4 and 5 July 2024 Place: Newcastle Counsel for the Applicant: Mr Graham Solicitors for the Applicant: Bale Boshev Lawyers Solicitors for the Respondent: N/a – Self-represented ORDERS
NCC 1290 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BARBOUR
Applicant
AND: MR BARBOUR
Respondent
ORDER MADE BY:
JUDGE BETTS
DATE OF ORDER:
19 JULY 2024
THE COURT ORDERS THAT:
1.That within 30 days of the date of these Orders, the parties do all acts and things to transfer to the Applicant all of the Respondent’s right, title and interest in the property known as and situated at C Street, Suburb D in the State of New South Wales (“C Street”)
2.That simultaneously with Order 1, the parties do all acts and things to transfer to the Respondent all of the Applicant’s right, title and interest in the property known as and situated at E Street, Suburb D in the State of New South Wales (“E Street”)
3.That pending the transfer of C Street, the Applicant shall be entitled to exclusive use and possession of the property provided that she shall pay all rates, taxes and other outgoings including any associated loan repayments as and when they fall due.
4.That pending the transfer of E Street, the Respondent shall be entitled to exclusive use and possession of the property provided that he shall pay all rates, taxes and other outgoings including any associated loan repayments as and when they fall due.
5.That within 7 business days of the date of these Orders, the parties do all acts and things to cause the F Shares held in the joint names of Ms Barbour and Mr Barbour to be transferred to the sole name of Ms Barbour for her sole use and possession.
6.That simultaneously with the transfers of E Street and C Street, the wife is to pay the husband the sum of $4,111.00 with such payment to be stayed pending further order NOTING that the wife may be pursuing a costs application.
7.Except as otherwise provided, each party will retain all other property in their respective name, possession and/or control to the exclusion of the other party and each party will indemnify the other party in respect of any liabilities relating to any item of property retained by him or her. To avoid doubt:
(a)The husband is to be liable for any outstanding rates, charges, water charges or other outgoings in respect of E Street, Suburb D.
(b)The husband is to solely retain all of his right, title and interest in and to the Town G property to the exclusion of the wife.
8.That if either party refuses or neglects to execute and/or return any document necessary to give effect to these Orders within 7 days of being called upon to do so in writing, then:
(a)A Judicial Registrar of the Newcastle Registry of the Federal Circuit and Family Court of Australia (Division 2) is hereby appointed pursuant to section 106A of the Family Law Act 1975 to execute any such document on behalf of the defaulting party upon application by the non-defaulting party, and;
(b)The defaulting party shall pay the non-defaulting party’s costs of and incidental to the application pursuant to this Order as agreed or assessed.
9.The reasons for judgment be taken out in writing and provided to the parties.
10.The proceedings are adjourned for directions to 29 August 2024 at 9.30am to consider any costs application brought by the wife. Both parties have leave to appear by telephone and the link is:
(a)Dial: …
(b)Enter Conference ID: …#
11.If the wife intends to bring a costs application she is to serve the husband with written submissions setting out the basis for her application by no later than 15 August 2024.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BETTS
These reasons for judgment were delivered orally. They have been corrected from the transcript in order to make them easier to read.
INTRODUCTION
This is an application for property settlement orders pursuant to the provisions of Part VIII of the Family Law Act 1975 (Cth) (“the Act”).
The applicant in these proceedings is Ms Barbour, whom I will refer to as “the wife”. She is fifty-four years old and works full-time as a support worker at H Company in City J. The respondent to the proceedings is Mr Barbour, whom I will refer to as “the husband”. He is a sixty-nine year old retiree in receipt of an aged pension, although also receives some rental income from one of the party’s real properties at Suburb D in City J, as well as some modest adjustment income. He may also earn some income as a transport worker from time to time, although the evidence about this is somewhat unclear.
The parties commenced a relationship in 1989, married in 1992, separated in October 2020 and divorced in mid-2021. In total, their relationship spanned some thirty-one years or so. There are two adult children of the marriage: Mr K born in 1995 and Mr L born in 1997, both of whom are self-supporting and live independently of the parties.
While there is some dispute about the value of the parties’ assets, it is common ground that their value exceeds $2 million. The two major assets are a jointly owned home at C Street Suburb D, occupied by the wife, and a jointly owned home at E Street Suburb D, which the husband has had sole use of since about six months after separation. The husband has since moved away from that home to a rural property at Town G, which he and his two siblings inherited from his late parents, and of which he owns a one third share. The property is located at M Street, Town N, but I will refer to it as “Town G” because that is the way the property was referred to at the hearing. The husband lives in an outbuilding at Town G, but he said to me that E Street Suburb D remains his principal place of residence for legal purposes.
In these proceedings, the wife seeks to retain the property at C Street, which is the more valuable of the two Suburb D properties. She also seeks to have a modest jointly owned parcel of shares transferred to her, with each party to otherwise retain the assets in their respective possession. On her figures, this equates to about a 55% - 45% division of the assets in the wife’s favour if Town G is quarantined, and about a 47% - 53% division in the husband’s favour if Town G is not quarantined.
It is unclear exactly what orders the husband seeks in the proceedings, as he represented himself, and, despite multiple requests by me at the hearing, he did not ultimately tender any proposed Minute of Order. His main issue is that he considers that the Suburb D properties are both undervalued, but particularly C Street which the wife wants to retain. The husband was at pains throughout the hearing to make clear that he wants the Court to take into account that the property at C Street has an increased value. He said in closing submissions that if the Court even “upped the value of [C Street] by $1” this would simply give him the recognition that he seeks, namely, that the valuer has undervalued that property.
The husband did not want to seek the sale of the Suburb D properties. Of course, any sale would immediately result in the parties incurring sale costs, thereby depleting the matrimonial assets. The husband did not seem philosophically opposed to the wife keeping the property at C Street, and him keeping E Street, provided that what he saw as a discrepancy in the valuation evidence was properly acknowledged.
In this case the key issues in dispute relate to:
·the value of the two properties at Suburb D;
·the assessment of contributions, which also involves consideration of issues of non-disclosure by the husband, and alleged coercive and controlling family violence said to have been perpetrated by him against the wife during their relationship;
·whether there should be any section 75(2) adjustment; and
·what overall outcome would be ‘just and equitable’ in the circumstances of this case.
HEARING & MATERIAL RELIED UPON
The wife initially commenced these proceedings on 2 May 2023.
On 5 March 2024, the proceedings came before me for a Compliance and Readiness Hearing. On that date the wife was represented, but the husband represented himself. I set the matter down for a final hearing on 2 July 2024, at that stage in the expectation that the matter would, in fact, run for four (4) days. Given that the wife was making allegations of family violence against the husband, which she said warranted an adjustment in her favour, an order was made pursuant to section 102NA(1)(c)(iv) of the Act, prohibiting the parties from personally cross-examining each other.
In accordance with that listing, the matter came before me for final hearing on 2 July 2024. On that date the wife was represented by Mr Graham of counsel. The husband also had counsel, namely Mr UU, who had travelled to Newcastle from Brisbane, apparently that morning. The husband also had the benefit of a solicitor, Ms VV.
Regrettably, as soon as the hearing commenced both Mr UU and Ms VV sought immediate leave to withdraw, citing “ethical issues”. I asked Mr UU whether those issues could potentially be remedied, without of course wanting to, in any way, pierce legal professional privilege. He assured me that they could not be remedied and, in the circumstances, I granted them leave to withdraw. As a result of my doing so, the husband thereafter represented himself in the hearing.
I decided to adjourn the hearing for two days, namely to 4 July 2024, because the evidence before me seemed to indicate that the matter would not take nearly the original four days that had been envisaged. The adjournment also gave the husband the opportunity to seek legal advice and, if possible, legal representation, which I urged him to do.
The matter came back before me on 4 July 2024, at which time the hearing commenced. The husband was still unrepresented. In a practical sense, the earlier orders of the Court, pursuant to section 102NA of the Family Law Act, meant that the husband could not cross-examine the wife in person. Obviously this created a somewhat ‘lopsided’ situation, which was less than ideal. In the circumstances, I conducted the hearing in as fair a manner as I could, and to put it in the colloquial, I ‘cut the husband a significant amount of slack’ that would not otherwise have been the case. He told me, in the course of the hearing, that he appreciated me doing so.
For the purpose of the hearing, the parties ultimately relied upon the following documents.
Wife
·Case Outline Document filed 28 June 2024; her trial affidavit filed 13 June 2024; and her Financial Statement filed 12 June 2024.
Husband
·Case Outline Document filed 28 June 2024; his trial affidavit filed 26 June 2024; and his Financial Statement filed 26 June 2024.
Each party’s trial affidavit and Financial Statement had been filed late. No objections were taken to the late material, and leave was granted to each party to rely upon such material.
The wife’s trial affidavit contained some clearly objectionable material. Given that the husband was unrepresented and given the section 102NA order, I specifically raised this objectionable material with Mr Graham and invited him to agree that it be struck out. Consistent with his duty to the Court, Mr Graham was able to get those instructions, and the offending evidence was removed. In that respect I record my gratitude here to Mr Graham.
The husband’s trial affidavit was extremely scant in terms of the financial history of the relationship. It told me very little. Practically all of the evidence, including background context, had to be drawn from the wife’s trial affidavit, which by nature was unable to be challenged by the husband in cross-examination. [1]
In the course of the hearing, the parties tendered eleven exhibits, which will be referred to as relevant. I note that the wife’s final proposed Minute of Order was amended slightly, and it ultimately became exhibit 11.
THE LAW
As indicated earlier, these proceedings are governed by the provisions of Part VIII of the Act. In these Reasons, I intend to adopt the following approach:
(a)Firstly, I will identify and value the property, liabilities and financial resources of the parties;
(b)Secondly, I will consider whether it is ‘just and equitable’ to make a property settlement order;
(c)Thirdly, I will identify and assess the respective contributions made by each of the parties towards the net assets pursuant to section 79(4)(a), (b) and (c) of the Act;
(d)Fourthly, I will identify and assess the relevant “future factors”, as set out in section 79(4)(d), (e), (f) and (g) of the Act, noting that section 79(4)(e) specifically takes up the spousal maintenance considerations prescribed in section 75(2) of the Act. Having done so, I will then determine what, if any, adjustment ought to be made to each party's respective contributions-based entitlement on account of such “future factors”;
(e)Lastly, I will consider the effect of my findings and proposed orders so as to satisfy myself that any proposed property settlement order that I am contemplating is just and equitable.
I add here that the pathway I adopt is primarily based upon that endorsed in the Full Court decision of Hickey v Hickey & Attorney General for Commonwealth of Australia (Intervener) (2003) FLC 93-143, adapted to take into account the High Court’s subsequent decision in Stanford & Stanford (2012) FLC 93-518.
Before proceeding further, it is important to note some matters.
Firstly, it is quite clear from the evidence that the husband fell short in terms of providing full and frank financial disclosure to the wife or to her legal representatives. The husband’s attitude to his disclosure obligations, and more broadly as well towards the wife, is demonstrated by the correspondence that has been exchanged. I quote the following evidence from the wife’s trial affidavit, which I accept and I am quoting here from specific paragraph numbers:
177On 9 September 2022, I offered to attend mediation with [Mr Barbour] after he provided his financial disclosure or if he rejected my offer.
178On 18 January 2023, my solicitors wrote to [Mr Barbour] and also requested his financial disclosure and made a genuine attempt to resolve the dispute by attending mediation thereafter, in accordance with pre-action procedures. [Mr Barbour] failed to respond.
179On 7 June 2023, my solicitor wrote to [Mr Barbour] and provided a summary of the Orders made and attached a schedule of financial disclosure required as she had done previously.
180Within that correspondence, my solicitor asked that [Mr Barbour] cease contacting me directly and that all correspondence should be sent through my solicitor. This was because [Mr Barbour] has continuously sent me emails directly, sometimes copying in our adult sons to emails that are harassing.
181On 11 June 2023, [Mr Barbour] sent me an email describing my solicitor as a “prying busy bodies”. [Mr Barbour] then told me he had started a new relationship and that he planned to transfer his title of the [Town N] property to our two sons within the coming months.
[NB - This is the [Town G] property]
182My solicitor performed a title search on the property which confirms the [Town N] property is still held in [Mr Barbour]’s name. I believe [Mr Barbour] may intend on transferring the property to our sons so that it is not included in the asset pool.
183On 14 June 2023, my solicitor sent [Mr Barbour] a letter again requesting that he cease contacting me directly.
184On 18 June 2023, [Mr Barbour] sent five emails to my solicitor and me. [Mr Barbour] referred to my solicitor as “…” and her firm as a “mob”. [Mr Barbour] also repeatedly said he was willing to attend Conciliation and/or arbitration. [Mr Barbour] also titled the emails “shitfight”.
185[Mr Barbour] then referred to my solicitors as “cronies, puppeteers and influencers”, “rascals”, and said, “you mob are a disgrace to the good of humanity” and “Will Bale Boshev return your money and what an enormous loss to their pride it will be and that of the low life associated with this”.
186In [Mr Barbour]’s emails, [Mr Barbour] referred to me as “a bad human” and a “lowlife”. He then requested mediation occur that night with our two sons included. [Mr Barbour] then said, “you [Ms Barbour] or the “crazies” instigated blasphemy and lies to convince you, or […] to be so inept as to try and steal my and our boy’s monies”.
187 On 19 June 2023, my solicitor sent a letter to [Mr Barbour] again requesting that he immediately cease and desist contacting me and refrain from using illicit, derogatory and highly inappropriate language and to remain courteous. My solicitor asked again for his financial disclosure documents.
188On 19 June 2023, my solicitor received 5 further emails from [Mr Barbour]. [Mr Barbour] copied in our two sons into the emails. [Mr Barbour] told my solicitor to “get in the real world” and “as I have alluded to before you are still young and it’s a big world out there and playing a few games of [sport] does not qualify you as an experienced human being”.
189My solicitor responded by email that [Mr Barbour] should immediately cease communicating in such a way which was highly inappropriate.
190[Mr Barbour] replied with 4 further emails and stated: “I welcome any proceedings you v me to test this mess, but ask [Ms Barbour] first and make it clear that you will be paying costs from your pocket. I fear no human when I am in the RIGHT. Bet you won’t refund or wipe [Ms Barbour]’s account once you know the truth. Bet no remorse or apologies. You only doing what you trained for and been acting on instructions from your client” [sic] and “Bet you’re furiously going through all your law books to find something to “cover you” and “I may be defending myself in a way that may appear not up to scratch if I had of employed a coin guzzler but my maker be my judge that’s if an on-earth judge gets it wrong” and “Don’t charge [Ms Barbour] or my boys out of their inheritance for your feelings thank you very much”.
191[Mr Barbour] then emailed and copying our two sons into the email, proposed mediation to occur the next day with the [O Authority].
192[Mr Barbour] then sent an email again copying our two sons into the email and stated: “I remember [Ms P] saying bout Mediation…and how important it should be and before Second Sitting…what about the Australian taxpayers' moneys that are being used unnecessarily into all these family law dilemmas”.
193[Mr Barbour] then said that his third share in the [Town N] property had been relinquished to our two sons. [Mr Barbour] appears to provide some comments about financial disclosure or makes requests of financial disclosure. [Mr Barbour]’s emails do not make a lot of sense. [Mr Barbour] referred to me having “wicked behaviours” and that I had “opened a can of maggots”.
194On 20 June 2023, my solicitors provided [Mr Barbour] with my financial disclosure which had previously been provided to him.
195On same date, [Mr Barbour] again sent my solicitor a barrage of emails proposing mediation without having provided his financial disclosure. [Mr Barbour] also made comment that [the] Registrar was unprofessional “[Ms P] bit unprofessional there, eh?”
196At the date of executing this affidavit, [Mr Barbour] has not sent his complete updated financial disclosure to my solicitor. My solicitor requested same on 22 May 2024 and 5 June 2024 and 11 June 2024.
I set the above evidence out in some detail because it is illustrative of the husband’s attitude towards his disclosure obligations, and to his dealings with the wife’s solicitors in particular.
It would be fair to say that the wife’s concerns about the husband's non-disclosure do have some merit. For example, it is quite apparent that post-separation the husband received some board income from various people in respect of the property at E Street, Suburb D. In the witness box the husband admitted he had previously received board of $600 from one Ms Q whom he described in the witness box as “a druggie I was trying to help”. The husband’s X Bank statement (exhibit 8) reveals she made a $600 payment to him in early 2022. There are also some other credits to that account from unknown persons around the same date, including $420 referred to as ‘rent’ and some smaller payments from one ‘[Ms R]’ and one ‘[Mr S]’ collectively totalling $230, although $100 of that is noted as being for ‘property damage’.
More recently, in early 2024 the wife spoke to a young woman called ‘[Ms T]’ who told her that she was renting E Street from the husband for $600 per week. Ms T later confirmed this via text to the wife, which was tendered as exhibit 4, in which Ms T says that she is happy to pay half the rent to the wife, observing that she was really glad the wife had come over and see them there today and:
“I’m relieved there’s no grey area anymore.”
The husband did not object to the tender of this text message, and in the witness box he promptly conceded that Ms T and others had been paying him rent of $600 per week, which he characterised as ‘board’. Those others included persons known as ‘[Ms U]’, at least as at early 2024 (exhibit 9). They also included one ‘[Ms V]’.
In relation to all of this ‘board’ or rental-type income, none of it had been disclosed by the husband to the wife. It was not set out in his Financial Statement. The wife only found out about the ‘board’ payments as a result of making her own investigations. The total amount the husband may have received by way of post-separation ‘board’ income in respect of E Street is unknown - but at $600 per week it could well be a figure running into several thousand dollars if not more.
The husband refused requests from the wife’s solicitor to make financial disclosure as required, suggesting in an email that her solicitor was “perhaps stirring up the pot” because the wife had not complained to their sons about him having taken on some “boarders”. Put shortly, the husband was unrepentant about not making disclosure, although to his credit he did say in the witness box that he was “happy to share the board income” with the wife.
The husband had also received some income post-separation as a transport worker. Exhibit 8 reveals income of just over $5,100 in the seven week period from early to mid-2022. The husband also receives agistment income in respect of the Town G property – albeit quite a modest amount of around $73 per fortnight: see exhibit 10. Although modest it is, again, not mentioned in the husband’s Financial Statement.
The wife makes numerous other complaints about significant bank withdrawals by the husband in the leadup to separation and post-separation, and I will turn to these matters later. It suffices to say that there are a great many unexplained matters, in terms of the financial history in this case, and, as will be seen, the husband very much ‘sat in the driver’s seat’ in terms of running the parties’ finances. This is one of the wife’s complaints about him, in terms of what she says was coercive and controlling behaviour. In that sense, the onus was very much on the husband to explain such matters and to make full and frank disclosure, which he has failed to do.
As the Full Court has made clear in a line of authorities, once it has been established that there has been a deliberate non-disclosure by a party to these types of proceedings, the Court should not be unduly cautious about making findings in favour of the other “innocent” party, as to do otherwise might be thought to provide a charter for fraud in proceedings of this nature. [2]
I should add here that in this case the husband did in fact perpetrate a fraud on the wife. While being cross-examined, he all but admitted perpetrating a fraud with the benefit of a certificate issued pursuant to section 128 of the Evidence Act 1995 (Cth). Specifically, it seems that in 2018 or early 2019, having signed a contract in his name to purchase a home at W Street, City J, he then forged the wife’s signature on a joint ANZ loan application to ensure that there would be enough money available to complete the purchase, and so as to avoid losing the deposit which he had put down: see exhibit 5. The deposit he had paid was some $92,000. He said in the witness box that the deposit would have “gone down the gurgler” if he hadn’t signed the document - although he was somewhat condescending about the topic, saying that the wife, “will understand one day” why he did what he had to do.
The problem for the husband, however, is that his behaviour in this respect was simply fraudulent. There is no other way to put it. Whatever may have motivated him does not change that fact. It was also “family violence” as defined in section 4AB of the Act, in that it was coercive and controlling behaviour which deprived the wife of her financial autonomy. It strongly tended to corroborate the wife’s affidavit evidence that, during the relationship, the husband had in fact behaved in a coercive and controlling manner towards her, whether or not he is aware of it in his own mind. I should also add that the husband’s correspondence to which I have referred also conveys a similar flavour.
ASSETS, LIABILITIES & FINANCIAL RESOURCES (THE BALANCE SHEET)
I turn then to the question of what is in the Balance Sheet in this case.
Mr Graham tendered a proposed Balance Sheet as exhibit 6. It was not particularly easy to reconcile the Balance Sheet with the Financial Statements of the parties, particularly vis-à-vis bank accounts. I explored these matters in the course of closing submissions, as well as reviewing the evidence. Mr Graham made some helpful and appropriate concessions along the way.
Ultimately, having thought about the submissions made by both Mr Graham and by the husband, and having reviewed the evidence further, I have determined that the Balance Sheet is as follows.
ASSETS
Item
Description
Value
1
C Street, Suburb D (joint)
$1,000,000
2
E Street, Suburb D (joint)
$ 915,000
3
F Shares (joint)
$ 3,492
4
Town G property (husband has 1/3 share)
$ 383,333 [3]
5
Motor Vehicle 1 (husband)
$ 13,000 [4]
6
Motor Vehicle 2 (husband)
$ 4,000 [5]
7
Motor Vehicle 3 (husband)
$ 8,000 [6]
8
General personal and household items (husband)
$ Exclude (see below)
9
X Bank account (husband)
$ Exclude (see below)
10
Motor Vehicle 4 (wife)
$ 4,850 [7]
11
Y Bank account (wife)
$ Exclude (see below)
12
Z Bank accounts (wife)
$ Exclude (see below)
LIABILITIES
Item
Description
Value
13
Z Bank personal loan (wife)
$ Exclude (see below)
SUPERANNUATION
Item
Description
Value
14
Super Fund 1 (wife)
$ 107,231
On the basis of the above figures, I arrive at non-superannuation assets totalling $2,331,675. If I include the superannuation in that figure, I arrive at $2,438,906. If I remove Town G from the balance sheet - in other words, if I quarantine it - the assets come in at $2,055,573.
I now turn to a few of the figures set out in the Balance Sheet by way of further explanation.
In relation to the husband’s “General personal and household items” (Balance Sheet Item 8), I am going to ignore these. The husband included them at $15,000 but the wife includes no such counterpart in her Financial Statement and I do not think it would be ‘just and equitable’ to treat the husband as owning furniture and personal items and treat the wife as not owning any. Hence I am simply going to ignore the husband’s figure.
In relation to the husband’s “[X Bank] account” (Balance Sheet Item 9), again I am going to ignore it. The husband conceded a figure of $3,737, but given the period that has elapsed since separation, I do not think I should take the parties’ current bank balances into account.
I exclude the wife’s Y Bank account (Balance Sheet Item 11). I note that the wife had an account balance of $388, but I exclude that for the same reason I exclude the husband’s X Bank account. For the same reason I also exclude the wife’s Z Bank accounts, noting that their balances total $7,340.
In terms of the liabilities, the wife has a Z Bank personal loan, but I am going to exclude that. The balance is $34,700, but it relates to legal fees, and in my view it should not be included in the Balance Sheet in the sense that it should not be ‘shared’ by the husband - at least for the purpose of calculating contributions, considering section 75(2) adjustments and the like.
I turn now to the two properties at Suburb D (Balance Sheet Items 1 & 2), both of which were valued by a single expert, Mr AA, whose affidavit of 12 June 2024 and annexed valuation reports of mid-2024 were marked as exhibit 1.
Mr AA adopted the usual valuation methodology for real property. He inspected each property, he photographed each property, and he provided the court with technical information in respect of each property, including amongst other things relevant town planning and environmental information, as well as some basic descriptions as to the condition or apparent condition of each of the properties. Ultimately, by reference to comparative sales, he valued C Street at $1 million and E Street at $915,000.
The wife accepts these figures. The husband vigorously disputes them. As I indicated earlier, the husband contends that both are too conservative, but his major concern relates to C Street.
The husband asserts that C Street is worth $1.2 million and that E Street is worth about $1 million. Though the husband’s estimates of value are strictly admissible, they would not ordinarily carry any significant weight in the face of contradictory evidence from a single expert. That said, the husband valiantly cross-examined Mr AA in the witness box in an endeavour to get him to increase his valuation figures.
The husband put various recent sales to Mr AA, which the husband said were, or should be, regarded as comparative sales. For instance, he took Mr AA to the sale of the home at BB Street, Suburb D, which sold for $1,080,000 in mid-2024. Interestingly, the husband did not put the BB Street, Suburb D sale to Mr AA for the purpose of challenging the valuation of E Street, so much as for the purpose of showing that C Street was significantly undervalued. He put to Mr AA that C Street was at least equal to or better than BB Street, Suburb D, thus lending support to the husband’s contended $1.2 million valuation figure for C Street.
Mr AA said that BB Street, Suburb D was a comparable sale for the purpose of valuing E Street and, indeed, his valuation report included it as a comparative sale. He did not, however, accept that it was permissible or appropriate to compare BB Street, Suburb D with C Street. His view is that, while the homes are on the same street, they are in different localities, in the sense that the blocks were flatter at BB Street than at C Street. He also said that BB Street had a better shaped block and better topography in general than C Street.
I also note from looking at the valuation reports that BB Street, Suburb D is described as being in a generally superior overall condition than C Street.
The husband put to Mr AA what he said was a comparative sale at CC Street, Suburb D, but again Mr AA rejected that as a comparative, saying that the location was different.
Ultimately, Mr AA's expert evidence was unshaken in respect of these comparative sales, and in the face of Mr AA’s expert evidence, the Court also takes the view that they are not appropriate comparatives.
The husband challenged Mr AA about the basis for the valuation of C Street. This was a more fundamental challenge, in the sense that Mr AA had valued it as a three bedroom house with a study, rather than as a four bedroom house. The husband suggested to Mr AA that, if C Street had been valued as a four bedroom house, then surely it would be worth more than the $1 million that Mr AA had valued it at.
Mr AA agreed in principle that a four bedroom home would carry a higher value than a home which was three bedrooms plus a study. However, he said that the fourth bedroom at C Street was quite small and would be more appropriately referred to, or used, as a study than as a bedroom.
The husband asked Mr AA about the Suburb D property market in general, suggesting to him that it was a “hot market” and Mr AA agreed with that.
Ultimately, I will formally adopt the values put forward by Mr AA with respect to the two real properties, namely $1,000,000 and $915,000 respectively, but I do make a few observations:
·I agree or tend to agree with the husband that, if the property was to be sold, then it would be logical for any real estate agent to list it as a four bedroom property, rather than as a three bedroom property plus a study, albeit that to any prospective buyer, it would be obvious enough that the fourth bedroom is very small;
·There is no suggestion that the wife is going to be selling C Street, or selling it any time soon. She lives in the property and opposes its sale, but it may be that if the wife decides to sell it down the track, that it could be advertised as a four bedroom property and potentially fetch a somewhat higher price. Whether that higher price would outweigh the costs of selling the property is unknown, and I am not able to make any positive finding beyond adopting the figure set out by Mr AA, but it may be that there is a little bit of extra hidden value in the property at C Street. Any such hidden value is somewhat speculative, however, and best addressed, if at all, as a section 75(2) consideration.
·I would also add here that if the market at Suburb D is “hot” as Mr AA agrees, and if both of the Suburb D properties are in that “hot” market, then it is reasonable to expect that, perhaps both are valued somewhat conservatively.
I cannot take the matter any further than that. There is nothing else that I wish to add about the Balance Sheet per se.
IS IT ‘JUST & EQUITABLE’ TO MAKE A PROPERTY SETTLEMENT ORDER?
The answer to that question must be in the affirmative. The case was conducted on that basis. Both parties sought a property division of some description, although the husband’s orders were not particularised.
The fact of the matter is that these parties cannot continue to mutually enjoy the assets they have, particularly their two jointly owned homes at Suburb D. It is necessary to sever their financial relationship consistent with the Court’s duty, pursuant to section 81 of Act, and having regard to the decision of the High Court in Stanford (supra).
ASSESSMENT OF CONTRIBUTIONS
I turn then to assess contributions.
I begin by observing that the Town G property, in my view, is an entirely separate species of property, and I will deal with it separately. In what follows, my observations relate to the rest of the property as set out in the Balance Sheet, save for Town G.
Initial contributions
When the parties commenced their relationship there was a significant age disparity between them. The husband was a thirty-four year old public servant. He already had had something of a career in the public service. He owned a motor vehicle. He had two other vehicles, I suspect the same vehicles he has now. He had some savings. And he also owned some livestock.
The wife was a carer. She was eighteen years old. She had about $5,000 in savings.
Contributions during the relationship
Both parties made substantial contributions during the relationship. The husband made substantial contributions as a breadwinner, but also contributions as a homemaker and parent. The wife made substantial homemaker and parent contributions, as well as substantial breadwinner contributions. She worked in various different roles throughout the relationship.
The parties initially lived together in some rented accommodation in Sydney, sharing expenses equally with the wife’s sister. In 1990, the husband pressured the wife to give him her savings, which she did. He then used those savings to buy himself a motor vehicle.
Sometime around then the parties moved to Town DD, where they again rented a home. The husband went on some long service leave from the public service, and was doing work as a tradesperson in the Town DD area.
The parties married in Town EE before moving to City FF in 1992 when the husband, again, returned to work with the public service. While in City FF the parties bought a home together at GG Street, Suburb HH, for $120,000. The husband’s parents loaned the parties the deposit monies of $20,000.
In 1994, the husband left the public service and took some form of voluntary redundancy. The parties still owed some money to the husband’s parents for the Suburb HH deposit, and at the time the husband received his redundancy payout that loan was fully discharged.
To be clear though, the wife is not entirely sure as to exactly how much the husband received and how the money was spent. This is because the husband was in control of their financial affairs, and she never herself saw evidence as to the exact amount of the redundancy although he told her it was $170,000 in total. The husband used some of those moneys to buy a motor vehicle, apparently for $20,000, without having discussed it with the wife, although obviously the vehicle benefited the family. The wife herself had no vehicle at that time, as will be referred to later.
In 1995, the parties bought a business known as “JJ Business” for $48,000. They both worked in the business, although the wife did not draw a salary as such.
Mr K was born in 1995. Mr L was born in 1997. The wife was their primary carer while also doing work for the business. The wife was entitled to receive some Family Tax Benefit or other Centrelink benefits during this time. The husband directed her to pay them into the JJ Business account, which she did.
In 1997, the parties purchased another property at Suburb HH, this time at KK Street, for $138,000. It is clear from the wife’s affidavit that, financially, things were quite tough and that JJ Business was not making much of an income. The wife was working around her childcare requirements doing various odd jobs to help the family stay financially afloat and to meet their day-to-day living expenses.
In 1998, at the husband’s instigation, the family promptly moved to City J. The two Suburb HH properties were rented out and the parties lived in rental accommodation in the City J region. The husband later sold the JJ Business for $72,000, and again he took control of the sale proceeds.
In place of JJ Business, the husband set up another business known as ‘LL Business’. The husband was working that business from home but it was not doing particularly well, and the husband was resistant to having discussions with the wife about the financial difficulties they were facing.
In 1998, the parties bought the property at E Street, Suburb D for $110,000. Whatever income the business LL Business was making, the wife was still entitled to some Family Tax Benefits from Centrelink, and it seems that the family were ‘doing it somewhat tough’ financially.
In 1999, the parties sold the property at GG Street, Suburb HH for $130,000, and the net sale proceeds seem to have been negligible.
In 2000, the parties moved to the City MM region in South Australia, where they rented a property. They sold the KK Street property at Suburb HH, but again, the wife is unsure of what the sale proceeds were as she did not have any control over them.
When back in South Australia, the wife returned to hospitality to work full-time while also being significantly involved in caring for the children. The husband was running the business and effectively working from home.
In 2001, the parties purchased NN Street, City MM for $155,000. Later that year and over the wife’s objection, the husband purchased a vacant block of land at OO Street, City MM for $85,000. The wife was opposed to the purchase but the husband went ahead with it anyway. She is unsure whether it was purchased jointly or not, and, as with most of the financial history, the husband’s affidavit is silent.
In 2005, the husband started regularly gambling at home. The wife does not know how much money he gambled, but I accept her description that she would go to work and that when she came home, she would find him gambling, and that, at least to her mind, he seemed to be ‘obsessed’ about gambling. She was unable to get him to stop. I should add here that in closing submissions, the husband did admit that he gambled during the relationship but he denied making any serious losses. There was no evidence about this topic in his affidavit nor was he cross-examined about it.
In 2005, again over the wife’s objection, the husband purchased an online business. Apparently, it cost $5,000. According to the affidavit of the wife:
52[Mr Barbour] told me it was a scheme that he was told what to bet on. He had to bet on them and [they] would win and he would make money.
Frankly, such a business sounds ‘too good to be true’ but it is not possible for the Court to know exactly how much money the husband spent on such activities.
In 2006, the parties moved back to the City J area. For a few months, they ‘couch surfed’. The husband was still running the LL Business, but also making some casual money at local businesses. The wife had saved up about $10,000 from her employment, and the parties depleted those savings while she found herself some work.
In 2007, the parties jointly purchased the property at C Street for $420,000.
In 2008 the husband sold the OO Street block for $175,000. The wife does not know how the sale proceeds were spent. She asked the husband to apply them to the home mortgage at C Street but, almost incredibly, I do not know whether that money was applied to the C Street mortgage or not. The wife does not know. Her counsel did not ask him about it in the witness box, and the husband’s affidavit - as with most things - is silent on the point. It is impossible for me to make any finding beyond observing that there does seem to have been a tidy profit on the sale and that the money was presumably available to have been used by the husband for something for the benefit of the family, but it really is not possible for me to be any more precise than that.
The wife’s evidence is that in 2010 the husband first allowed her to buy a car - Motor Vehicle 5.
I accept the description in the wife’s affidavit that:
57I worked as a [support worker], and later in a [store] for 10 years. I worked for about 35 hours per week, from 8.30 to 3 pm, Monday to Friday. This allowed me to collect/drop the children from school. [Mr Barbour] looked after the children during the school holidays. [Mr Barbour] continued to work from home, [LL Business]. [Mr Barbour] made little to no income. We often had disagreements about [LL Business], and [Mr Barbour]’s work. [Mr Barbour] did not appear to be working at all, while I was working full-time and caring for the boys and the children and being the primary income earner. We relied heavily on my income.
In 2016, around December, the husband started working as a transport worker, working fifty hours a week - often until 3 am in the morning. In 2017, the husband sold the wife his Motor Vehicle 4 for $8,000. This is the same as the Motor Vehicle 4 in the Balance Sheet.
In 2017 - or perhaps more likely in 2018 - the husband drew down $94,000 from the mortgage on C Street, increasing its balance from $435,000 to $528,000. He did so in order to raise the deposit money for the purchase of the ‘off-the-plan’ home in W Street, City J, the subject of his fraudulent behaviour referred to earlier. This purchase was made by him unilaterally and over the wife’s objection. He purchased it in his sole name for $935,000 in total. As I indicated, he forged the wife’s signature on loan documents.
I note the wife’s evidence that the husband arranged an investment loan of $601,500 as well as putting the City MM property up as security.
The wife wanted nothing to do with this property. Her affidavit complains that the husband failed to rent it out for twenty months due to various building defects, which she says he unsuccessfully sued the builder for. But I have no real details in this respect, and given the wife’s own deliberate disinterest in the apartment I do not regard it as a particularly significant matter that the property was not rented for that period. I simply do not have enough information to enable me to make any real findings.
I do note that around the same period, the husband deposited $40,000 into the business account of LL Business, being monies he inherited from his late father.
In 2019, the husband inherited his one third share of the Town G property. In that same year, the wife started full-time work at H Company as a support worker, where she remains.
In early 2020, the parties sold the City MM property for around $320,000, netting some $288,000. Most of the net proceeds were applied to the apartment loan and the rest went into the joint LL Business account. The property at City MM had not been rented in the fifteen months before its sale, and the wife had been chasing up the husband to get it rented out. She says the home was damaged during the period that it was not being occupied, but I have no real evidence in this respect save for the fact that the wife makes that assertion.
Post-separation contributions
In terms of the post-separation contributions, the wife moved out of the property at C Street in late 2020. The husband stayed living in that property with their adult sons for the first six months. He later moved into E Street, in around early 2021. Their adult sons stayed living in C Street and were renting out rooms at the home to tenants. The parties were equally sharing the rental income or board income from those tenants.
I should note here that the wife was separately living in an outbuilding which she was renting out as and from early 2021.
Having moved into E Street, the husband then began receiving rent or board income from persons as mentioned earlier. This was income he did not disclose.
The wife moved back into the property at C Street in early 2024, by which time the husband had already vacated E Street himself and gone to live at Town G. The property at E Street has accrued some rates and water arrears of $3,677 according to the wife’s trial affidavit. Although a joint debt, this figure is not included in the Balance Sheet. The husband having had occupation of the E Street property and having received the board income from it, I see this liability as entirely his notwithstanding that it may be joint. I am certainly aware of this liability.
In relation to bank accounts, I indicated earlier that there were various withdrawals or transfers made by the husband about which the wife knew nothing. I would summarise that evidence in this way, and in so doing, I note that some of the withdrawals that are unexplained predate the separation but are in the lead-up to separation, and I consider them to be relevant matters, particularly given the other conduct of the husband in relation to coercive and controlling behaviours of a financial nature.
From late 2019 to early 2021, the husband transferred $50,000 from an offset account to an undisclosed ANZ account; $4,500 from an offset account to his X Bank account and $32,000 from his business account to his X Bank account. From late 2020 to early 2021, the husband transferred $13,000 from the LL Business account into accounts that were in his sole name. These are significant withdrawals.
In mid-2021, the wife went to the ANZ Bank to tell them about the separation, albeit some seven months after the event. She asked the bank to amend the signing authorities so that two signatories would be required in respect of the joint accounts. For reasons that are unclear, the ANZ Bank did not action that request, and indeed, from mid-2021 until late 2021, the husband was able to withdraw $20,650 from the joint LL Business account, which he transferred to his own X Bank account. I note that the wife made a complaint to the ANZ about this and that the ANZ refunded the wife a sum equal to one half of what the husband had taken, namely, $10,325 together with a goodwill payment of $1,000. Of course, the husband had the benefit of $20,650 of the parties’ money and the wife had the benefit of $11,325 of money that effectively belonged to the ANZ.
In terms of the apartment at W Street, once the husband did start renting it out, he was receiving $850 per week into the joint account. On legal advice, the wife lodged a caveat on the unit. The husband wanted it removed as he wanted to be able to sell the property. The wife would only agree to sell it if that the sale proceeds were used to discharge the mortgage over C Street. The husband agreed, and ultimately the property was sold and that mortgage discharged and each party ultimately received a cash payment of about $38,000.
Family violence
I turn now to the topic of family violence, which was set out in some detail in the wife’s affidavit at paragraphs 106 to 134. In this respect, her unchallenged evidence is as follows.
106From the time we were married in 1989, [Mr Barbour] became increasingly controlling, coercive and abusive towards me.
107The family violence dominated how I lived my day-to-day life. I felt like I was constantly walking on eggshells.
108If I did not agree with [Mr Barbour] or opposed his demands, he would speak to me in an aggressive matter [sic – I think she means to say ‘manner’] and say call me [sic] derogatory names like “stupid” or “that’s stupid, I’m smarter than you.” [Mr Barbour] also called me a “spoiled bitch” or “dragon”. This hurt me and belittled me. [Mr Barbour] would badger me until I gave into his demands.
I pause here to observe that such comments are corroborated by the content of the husband’s own correspondence to which I have already referred. I should also add that on numerous occasions in the course of the hearing itself, the husband turned in the direction of the wife, or at times her legal representatives, and proceeded to deliver what seemed to be lectures or admonitions about various topics. To be fair to him, the husband was entirely courteous with me and entirely respectful to the Court, but it was clear to me that he had a capacity to ‘give lectures’ if he was unhappy about things, and I have little reason to doubt that he did so to the wife on many occasions as she alleged.
Returning to the wife’s affidavit:
109[Mr Barbour] would often tell me that I was unattractive and on several occasions, he would say to me: “You’ll be fat just like your mother.” When I made the extra effort to join exercise classes or dress attractively, [Mr Barbour] would accuse me of deliberately seeking sexual attention from other men or that I was spending too much money on clothing or personal grooming.
110[Mr Barbour] would not allow me to have my own car. If I ever mentioned that I wanted to have my own car, [Mr Barbour] would become very agitated and say that I didn’t need my own car. [Mr Barbour] finally allowed me to have my own car at 40 years of age. I was allowed to a buy a second-hand [Motor Vehicle 5] for $2,800.
111I can recall when we first lived together in Sydney and I was working in [Suburb PP], I could have easily travelled to work by bus, but [Mr Barbour] was so controlling that he said to me: “You have to be dropped off in my car to work.”
I pause here to say that this is the evidence which I foreshadowed a little earlier when I was referring to the purchase of Motor Vehicle 5.
112[Mr Barbour] repeatedly criticised my family and friends and eventually isolated me from them. If I wanted to invite someone to the house, I would feel very anxious if [Mr Barbour] was going to be home or not. [Mr Barbour] would often call my female friends “lesbians” and would say to me: “Don’t bring your friends around as it’s also my house as well you know.” [Mr Barbour] would call my family “lowlifes” and would say to me: “I don’t see why you have to see your family all the time.” Often [Mr Barbour] would behave offensively towards my family and friends and would bait them into arguments. [Mr Barbour]’s presence made my family and friends uncomfortable so much so that they stopped visiting at the house.
113I quite often felt stressed, anxious and powerless in my relationship. I was scared of [Mr Barbour], he was able to emotionally destroy me by what he said to me.
114I often had [thoughts of self-harm] as I thought this was the only way I could escape [Mr Barbour]’s abuse and the overwhelmingly [sic] feelings of despair and anxiety I felt. I felt that I had to agree with [Mr Barbour] about everything or he would verbally abuse me.
115In 1992, [Mr Barbour] and I went to visit my sister [Ms QQ] and her husband with [Mr Barbour] who had recently had a baby. They were living in Sydney. I can recall [Mr Barbour] getting angry at me because I said to [Mr Barbour] that I didn’t really enjoy playing [sports]. [Mr Barbour] tackled me to the ground on the concrete driveway and held me down. I could not move or get up. [Mr Barbour] let me go when he heard [Ms QQ] coming out of the house. I had grazes and marks on my arms from [Mr Barbour] tackling me.
116In 1994, I attempted [self-harm] to escape [Mr Barbour]. I was going to [harm] myself. My neighbour came to the house and interrupted me. I told my sister, [Ms QQ] and I recall her telling me to leave [Mr Barbour].
117In 1994, I also thought about separating from [Mr Barbour]. I visited a priest, who told me to stay with [Mr Barbour], he told me that our relationship would get better if we had children. I believed the priest.
118In 2010, I flew to South Australia with the two boys to visit my family and to have a break from [Mr Barbour]. [Mr Barbour] turned up in [South Australia]. He had taken trains to [South Australia] via Melbourne. [Mr Barbour] stayed at his aunty’s home, who also lived in [South Australia].
119My Dad had an argument with [Mr Barbour] during this visit…
I will not quote the rest of that paragraph because it is clearly hearsay, but it can safely be inferred that their argument related to the husband’s behaviour towards the wife.
120In [late] 2020, following our separation and me moving out of the property, I had planned a trip to South Australia with [Mr L] and [Mr K] to spend time with my family. [Mr Barbour] and I had an argument before we left on the trip and I told [Mr Barbour] not to follow us like he had done before. We drove from [City J] to South Australia. While we were driving, the boys noticed that [Mr Barbour] was parked on the side of the road in [Town RR] and said to me: “Oh my god Mum, there’s Dad – he’s following us.” [Mr K] called the police. The Police attended and told [Mr Barbour] to stop following us.
121[Mr Barbour] controlled the finances. I was responsible for funding the needs of the family. The rental income from the properties and Centrelink payments serviced our loans as [Mr Barbour] earned a minimal income during the relationship.
I pause here though to make the observation that the exact amount of the income that the husband received is unknown. Given that he was in charge of the financial circumstances of the parties, this evidence would best have been given by him. Certainly, I accept that the wife earned a significant income during the relationship and that her financial contributions were significant in this respect. Returning to the wife’s affidavit:
122[Mr Barbour] had primary access to our joint finances. I had limited savings because my earnings went to the family and the children almost completely. [Mr Barbour] controlled our joint finances, and I was never shown how to pay bills, [Mr Barbour] would say to me “You don't need to learn how to pay the bills”. Without my own savings I was unable to separate from [Mr Barbour].
123If I did say to [Mr Barbour] that I wanted to leave or separate he would threaten me and say: “The family will suffer, you will be responsible for breaking up our little family”. [Mr Barbour] would also say to me: “You will hurt the children and I will make sure you will never see your sons again”. Because of the control [Mr Barbour] had over me, I believed him. I felt trapped and powerless.
124[Mr Barbour] has sent verbally abusive emails and text messages to me; he has copied our two sons to the emails that are both threatening and demoralising…
125In one email, [Mr Barbour] refers to me as a “gold digger” and “a piggy at a feed trough”.
126 In another, [Mr Barbour] again copies our two sons into email correspondence.
127Throughout our relationship, [Mr Barbour] has been controlling over me and coerced me into big life events so that he could get his own way including purchasing the [City MM] land, purchasing the [small] business, buying the [house] in [City J], his purchase of cars, letting me purchase my own vehicle and visiting my family in South Australia.
128In 2020, I was diagnosed with various medical conditions as outlined above and it became clear to me how much my health was suffering as a result of my relationship with [Mr Barbour]. It was only at this time that I felt I was able to separate from [Mr Barbour].
129 I’ve been treated by [Ms SS], psychologist since [early] 2021.
….
132 I’m still attending with [Ms SS] about once a month.
133[In late] 2023, I reported to the [City J] Police regarding [Mr Barbour]’s harassing emails. The Police recommended I block him.
134[In late] 2023, I decided to block [Mr Barbour]’s emails and text messages as it continued to affect my mental health.
In Kennon& Kennon (1997) FLC 92-757 the Full Court, comprising Fogarty and Lindenmayer JJ for present purposes, held 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 another way, to have made his or her contribution 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 section 79…
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…conduct related to the breakdown of the marriage (basically, because it would not have had a significant duration for this impact to be relevant to contributions). [8]
I am aware of the subsequent decision in S & S [2003] FamCA 905, where the Full Court (comprising Kay, May & Carter JJ) re-visited Kennon (supra), emphasising that the principles espoused in that case only apply to a relatively narrow band of cases. The Full Court in S & S ultimately held at [47] that:
An insufficiency of evidence in the present case leaves the court with a limited ability to deal with allegations in the context of section 79 proceedings. As Kennonhas established, it is necessary to provide evidence to establish:
•The incidence of family violence;
•The effect of family violence; and
•Evidence to enable the court to quantify the effect of that violence upon the parties capacity to “contribute” as defined by section 79(4).
The wife’s Kennon claim failed in that case because there was a complete absence of evidence as to how the husband’s violent conduct had affected the wife’s capacity to contribute.
More recently, in Keating & Keating [2019] FamCAFC 46, the Full Court re-visited S & S (supra). Relevantly, Ainslie-Wallace and Ryan JJ said as follows:
38At first blush the reference in S & S to “quantification” seems to elevate the need for an evidentiary nexus or “discernible impact” between the conduct complained of and its effect on the party’s ability to make relevant contributions, requiring expert or actuarial evidence of the effect of the violence. That impression is reinforced by their Honours’ reference to and comparison with the husband’s failure to adduce evidence to demonstrate the impact on the value of the house by his renovations and improvements …
39This uncomfortable analogy does not illuminate what “quantification” of the effect of violence on contributions might look like. It suggests something more than the evidence by the victim's spouse. We struggle to understand what that “quantification” evidence might be beyond that given by the victim spouse as to the incidence and effect of the violence as identified in S & S in the first two dot points at [47]. Furthermore, we fail to see how this third step accords with the decision in Kennon which the Full Court in S & S said governed the situation. Perhaps the use of the word “quantification” is infelicitous and has unintentionally added a gloss to the ratio in Kennon when, in truth, the Court in S & S was merely reinforcing the need for there to be an evidentiary nexus between the conduct complained of and the capacity (and/or effort expended) to make relevant contributions. And, depending upon the nature of the violence established, in the absence of express evidence about the effect that violence had on the victim spouse’s contributions, how difficult it might be for the Court to draw inferences which would establish the evidentiary nexus (see S & S at [42]). But we did not have the benefit of argument on the point (nor it seems did the primary judge) and prefer to express no final view about it.
I note that Austin J dissented.
In Britt & Britt (2017) FLC 93-764 the Full Court allowed an appeal against a decision by a trial judge to exclude evidence of family violence on the basis that, even if admitted, the evidence would not rise to the relevant Kennon standard. The Full Court emphasised the need for Courts to act cautiously before rejecting such evidence as, in an appropriate case, inferences can be drawn which enliven a Kennon argument.
It seems to me that an applicant who seeks a Kennon adjustment would be wise to call medical or other expert evidence as to the impact of the violence upon him or her where this can reasonably be done. But medical or expert evidence is not necessarily required. Each case must turn on its own facts. If an applicant does call medical evidence, then, logically, this will need to demonstrate some causal link to the proven violence. An applicant is not expressly required to spell out what the impact was upon them of the violence, but it seems to me that the less sustained and/or egregious the violence, the wiser it would be for an applicant to do so rather than relying on this Court to draw the necessary inference.
In my view, it is ultimately a question of fact and degree in each case as to whether or not an applicant has made out a Kennon claim to the requisite standard.
Town G property
I said that I would deal with the Town G property separately, and I will do so now.
I note that Town G was inherited by the husband from his late parents. I accept that the wife was close to the husband’s parents and that as a family the husband, the wife and in later years the children, would travel to the Town G property each year. The wife in this case tried to suggest that she had some form of contributions-based entitlement to the property at Town G. In this respect, she relied upon some assistance that she gave the husband’s parents during their lifetime - for example, taking them to a doctor if necessary. In the witness box, the husband agreed that “of course” the wife helped if needed and that “everyone had to pull their weight”.
The wife also relied on an emotional email the husband had sent to the wife’s solicitors on 10 August 2023 which stated that his parents had loved her; and “obviously considered the gift was going to be hers also”; the husband’s email also said that he considered that the wife had been his parents’ favourite child-in-law.
In the witness box, the husband did not retract any of those things. He was very honest and forthright in adhering to what he had said in his email.
But in the end, in my view, the wife’s contributions towards the inheritance are nil or negligible such that they ought not to be taken into account. I accept the husband’s evidence that the wife did “pull her weight” when they visited the Town G property, but she did not do anything special or extraordinary, and I do not say that to be disrespectful of the wife, but simply to make the point that there is nothing of significance that she did that can be directly traced to the inheritance. The fact of the matter is that although I do not have a copy of the Will of the husband’s late parents, the Town G property was transferred to the husband, not to the wife - so it is quite clear, as would ordinarily be expected in any event, that the property was devised to him, not to her.
I do not consider that the wife has any contributions-based entitlement to the property at Town G whatsoever. It is the husband’s, and having heard his evidence and heard his submissions, I am confident that his intention is to pass it on to their two children.
In a nutshell, I therefore exclude the Town G property from the Balance Sheet for the purposes of contributions.
Overall assessment of contributions
Exclusion of the Town G property means that the Balance Sheet is relevantly $2,055,573.
In terms of assessing contributions generally to that Balance Sheet, the Town G property being excluded, I am of the view that in assessing the overall contributions, that a number of considerations arise.
Firstly, it was a long relationship. Both parties made significant contributions as homemaker and as parent, as well as financial contributions. The husband admitted in closing submissions that he had been in something “of a hole” for a period of time, which lends weight to the wife’s complaints that she had had to earn income to keep the family afloat. But even so, both parties made significant contributions during the relationship.
The husband withdrew significant moneys and has had the benefit of various income that he has not disclosed, and there are many unexplained aspects of the matter which warrant an adjustment in the wife’s favour, consistent with the authorities.
Overall, I would consider that the wife’s contributions to the Balance Sheet, excluding Town G, should be assessed at 53.5% to the husband’s 46.5% on account of these matters.
However, taking into account the family violence which the wife has given evidence about and which evidence I accept, I consider that this is also a case which falls within the narrow band of cases in which a further adjustment to the wife is appropriate. The picture that she paints, consistent with the evidence before me, is that the husband was an overbearing character throughout their relationship, some of which evidence has been apparent to me from his own behaviour in Court.
However, there is a subtle point to make here, but not an insignificant one. That is, some of the husband’s financially coercive behaviour actually made money for the parties which the wife has also had the benefit of. The obvious example is the property at W Street which was sold for a profit. But for the husband effectively coercing the wife, that money would not exist, so the family violence issue is somewhat nuanced.
Doing the best I can on the evidence before me, I would increase the wife’s contributions-based assessment by 2.5%. Lest it be thought that this is tokenistic on my part, I do not consider it to be tokenistic given the value of the assets in this case.
Accordingly, I would assess overall contributions to the Balance Sheet, excluding Town G, at 56% - 44% in the wife’s favour.
FUTURE FACTORS
I turn then to future factors.
The wife was born in 1970 and is fifty-four years old. She works as a support worker for TT Company. She can support herself adequately. Her income exceeds her expenses by around $220 a week. Her health is somewhat compromised. She was diagnosed with a medical condition in 2017, and a medical condition in late 2020. She also suffers anxiety and, perhaps, post-traumatic stress disorder. In this respect, she did attempt to rely upon an expert report from her psychologist, Ms SS, but I excluded that evidence at trial. Indeed, ultimately, its exclusion was conceded by Mr Graham, as the author of the report was not available for cross-examination which would have visited a manifest unfairness on the husband.
In any event, I accept that the wife does have a number of medical conditions for which she is medicated. She recently sustained an injury and was on sick leave for some six weeks or so, and there is some question mark about how she will be able to physically work going forward, and she may possibly need to be retrained. However, I am satisfied from the evidence before me that the wife has an excellent work ethic, that she has been motivated to work throughout the relationship, and that she will continue to work for as long as she feels the financial imperative to do so.
The husband was born in 1955 and is a retiree, presently aged sixty-nine. He receives an aged pension of $530 a week. He also suffers anxiety which he manages with medication through his GP. He has a rental income which he describes as ‘board’ from E Street. He is likely to continue to do some transport work if it is available, and he has a modest agistment income. In summary, he has an earning capacity above and beyond his pension. He, too, can meet his expenses.
Both parties enjoy a reasonable standard of living. I am satisfied from what the husband has said to me that he enjoys living at the Town G property and derives significant satisfaction from it.
Neither party is obliged legally to support any other person. Neither party seeks spousal maintenance.
The wife has some superannuation which is in the accumulation phase and will keep growing for as long as the fund is open, and she will keep contributing to the fund through her employer for as long as she works.
The husband has his one third interest in M Street, otherwise known as Town G, although it seems to me that he has no intention of selling that property and that he is very keen for his boys to retain it. He describes it as a beautiful rural retreat, a special place for him and for his family, and I accept that to be the case. The husband also said in submissions, which I take as a concession on his part, that one of his sons had told him that if the husband needed money, he would lend it to him. The husband said that he felt physically fit, though mentally a bit scattered and said he was “not the same bloke I used to be”.
In the end, the wife sought a minor adjustment in her favour if necessary to bring her entitlement up to what she was seeking in her orders. The husband’s Case Outline advocated that he should receive a 5% adjustment for future factors in his favour, although in closing submissions it was clear enough to me that the husband thought that a 50/50 outcome overall was a fair one.
In the end, I am mindful of the age disparity which would ordinarily work in the husband’s favour, but also I am mindful of his non-disclosure, and ultimately, I should also say that I am aware of the other assets and liabilities that are not specifically included in the Balance Sheet as referred to earlier, including bank accounts and the husband’s liability for rates, or the joint liability, rather, in respect of E Street.
Ultimately, I consider that the section 75(2) factors are, in fact, neutral in this case despite the age discrepancy and taking into account all relevant matters. In this respect, I also particularly emphasise the wife’s fairly serious health conditions.
CONCLUSION – JUST & EQUITABLE OUTCOME
Ultimately, by way of conclusion, the wife’s proposed orders would see her receive $1,155,573 worth of assets on the Balance Sheet I have arrived at. This is made up of C Street, the jointly owned shares, the wife’s Motor Vehicle 4 and her superannuation. This in fact totals 56.2% of the assets, excluding Town G. That is to say, the wife is receiving 0.2% more than I consider would be ‘just and equitable’ in terms of my calculations, the difference being $4,111.
If the inheritance at Town G was included in the Balance Sheet, the wife would be receiving approximately 47% overall to the husband’s 53%.
Ultimately, I am of the view, for these reasons, that a ‘just and equitable’ outcome would involve the wife receiving the property that she seeks at C Street, and my making the orders sought by her in exhibit 11 with a couple of amendments.
I certify that the preceding one hundred and forty-six (146) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Betts. Associate:
Dated: 26 July 2024
[1] Given the section 102NA order
[2] See for instance Mezzacappa & Mezzacappa (1987) FLC 91-853; Black & Kellner (1992) FLC 92-287
[3] Based on the unchallenged valuation report of […]: exhibit 2
[4] This figure is drawn from paragraph 6 of the husband’s trial affidavit
[5] Ibid
[6] These are the […] and their values are taken from Item 40 of the husband’s Financial Statement
[7] This figure is conceded
[8] At pp. 84,294 – 84,295
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