Batta & Batta

[2020] FCCA 3637

FEDERAL CIRCUIT COURT OF AUSTRALIA

Batta & Batta [2020] FCCA 3637

File number(s):

MLC 694 of 2018

Judgment of:

JUDGE STEWART

Date of judgment:

11 December 2020

Catchwords:

FAMILY LAW – property – contributions – Kennon claim – long marriage – post separation contributions

Legislation:

Evidence Act 1995 (Cth), s 140

Family Law Act 1975 (Cth), ss 75, 75(2)(o)

Cases cited:

Briginshaw v Briginshaw (1938) 60 CLR 336

Gosper and Gosper [1987] FamCA 43

Grier & Malphas [2016] FamCAFC 84

Kennon & Kennon [1997] FamCA 27

AJO & GRO [2005] FamCA 195

Number of paragraphs:

64

Date of hearing:

7-9 December 2020

Place:

Dandenong

Counsel for the Applicant:

Mr Robinson

Solicitor for the Applicant:

Pearsons Lawyers Pty Ltd

Counsel for the Respondent:

Mr Kiernan

Solicitor for the Respondent:

MMH Lawyers

ORDERS

MLC 694 of 2018

BETWEEN:

MR BATTA

Applicant

AND:

MS BATTA

Respondent

ORDER MADE BY:	JUDGE STEWART
DATE OF ORDER:	15 DECEMBER 2020

THE COURT ORDERS THAT:

1.Final orders are made in accordance with the Minute of Order dated 15 December 2020, marked with the letter “A” and annexed hereto.

2.All extant applications are dismissed and the matter removed from the list of pending cases maintained by the Court.

“A”

1.On or before 9 February 2021 (“the Date”) the Wife pay to the Husband the sum of $202,500 ("the Payment") by way of transfer to Pearsons Lawyers Trust Account.

2.Contemporaneously with the Payment:

(a)The Husband shall sign all documents to transfer to the Wife, at the expense of the Wife, all of his right, title and interest in the real property situate at, and known as, Property C in the State of Victoria being the whole of land more particularly described in Certificate of Title Volume “…” Folio “…” (“the Property”); and

(b)The Wife shall refinance the mortgage(s) encumbering the Property so that the Husband has no liability in relation thereto and he is released from any guarantees or other obligations in relation thereto.

3.In the event that either the Payment is not made by the Date, or the provisions of Order 2.b. herein are not complied with, the parties shall forthwith do all such acts and things as may be required to cause the Property to be sold by public auction (“the Sale”) at the earliest possible date.

4.For the purposes of the Sale:

(a)F Real Estate be appointed as the selling agent of the Property;

(b)The parties shall jointly appoint a conveyancer/solicitor to act in relation to the sale of the Property within 14 days of the date of these Orders, failing which a conveyancer/solicitor shall be appointed at the direction of the selling agent;

(c)The reserve price of the Property be set at $725,000 unless otherwise agreed between the parties in writing; and

(d)The parties have liberty to apply to the Court in writing in relation to the Sale.

5.That the proceeds of the Sale of the Property be disbursed as follows:

(a)First, to pay all costs, commissions and expenses of the Sale;

(b)Second, to discharge the mortgage(s) and any other encumbrances affecting the Property other than any Caveats lodged by the parties or on behalf of the parties by their respective solicitors; 

(c)Third, to pay to the Husband such amount of the Payment as remains outstanding, such payment to be made to Pearsons Lawyers Trust Account;

(d)Fourth, to pay to the Husband an amount of interest calculated in accordance with the Family Law Rules on such amount of the Payment as was not paid by the Date, as calculated from the Date until the date of payment, such payment to be made to Pearsons Lawyers Trust Account; and

(e)Fifth, the balance to the Wife.

6.That pending the sale of the Property:-

(a)The Wife have sole occupancy of the Property and shall be solely liable for all outgoings of the Property, including but not limited to, all instalments pursuant to the mortgage, rates and taxes, insurance, bills and like apportionable outgoings of whatsoever nature and kind and ensure that all payments are made as and when they fall due;

(b)The Wife shall indemnify the Husband against all claims, demands, proceedings and judgements in respect of liability pursuant to the mortgage, rates and taxes, insurance, bills and like apportionable outgoings of whatsoever nature and kind;

(c)The Wife shall do all things necessary to comply with Order 3 as soon as practicable, including cooperating with the Husband to reach agreement in relation to all aspects of the Sale;

(d)The Wife shall cooperate and take all necessary steps and execute all necessary documents as reasonably necessary to facilitate any inspections of the Property by the selling agent and potential purchasers;

(e)The Wife shall maintain the Property, including but not limited to keeping the Property in a tidy and presentable condition for Sale;

(f)Other than to facilitate compliance with these Orders, neither party shall further encumber the Property without the consent in writing of the other party;

(g)The joint tenancy of the Property is hereby expressly severed; and

(h)Each party shall hold their respective interests in the Property on trust in accordance with the provisions of these Orders.

7.Should the Wife fail to comply with paragraph 6 hereof, the Husband shall have sole occupancy of the Property for the purposes of facilitating the Sale and the Husband shall:

(a)Be solely liable for all outgoings of the Property, including but not limited to, all instalments pursuant to the mortgage, rates and taxes, insurance, bills and like apportionable outgoings of whatsoever nature and kind applicable for the period of time in which he has sole occupancy only and ensure that all payments are made as and when they fall due;

(b)Cooperate and take all necessary steps and execute all necessary documents as reasonably necessary to facilitate any inspections of the Property by the selling agent and potential purchasers; and

(c)Maintain the Property, including but not limited to keeping the Property in a tidy and presentable condition for the Sale.

8.Within 28 days of the date hereof the Wife make available to the Husband (by delivering the same to the Husband’s solicitors) the originals of all family photographs which may be copied by him at his expense and returned to the Wife within 28 days thereafter in the same condition as they were provided to the Husband.

9.That unless otherwise specified in these Orders and except for the purpose of enforcing the payment of any moneys under these or any subsequent Orders:-

(a)Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party at the date of these Orders save as provided for in these Orders;

(b)Any money standing to the credit of the parties in a bank account are to be retained by the party in whose name the account appears;

(c)Any money standing to credit any joint accounts of the parties is to be divided equally between the parties;

(d)Each party hereby forgoes any claim they may have to any superannuation benefit and /or any interest in any trust or deceased estate that is payable to or belonging to or owned by the other save as provided for in these Orders;

(e)All insurance policies are to become the sole property of the owner named therein;

(f)Each party be solely liable for and indemnify the other against any liability in their sole name including but not limited to any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and

(g)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

10.That the Husband and Wife do all acts and things and give all consents and execute all documents and writings necessary to give effect to the Orders made.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT
As revised from transcript

Judge Stewart

1. These are property proceedings between the Husband and the Wife in a marriage which endured for around 34 years. The parties were together between 1982 and either 2015 or 2016, and even after the separation date the parties did spend some time together in the former matrimonial home from time to time. The Wife seeks an order that the asset pool as constituted by her (which would exclude liabilities which the Husband seeks to include) be divided as to 65 per cent to her and 35 per cent to the Husband. The Husband seeks orders that would have the asset pool as constituted by him (which would include an add back of expended superannuation by the parties and include liabilities in his name) be divided equally.

2. The Wife’s case is underpinned by what she says are superior financial contributions by her during the marriage, contrasted against profligate or wasteful expenditure by the Husband. She also seeks a consideration of family violence issues under the principles set out in Kennon & Kennon [1997] FamCA 27 (“Kennon argument”).

3. The asset pool is modest and whatever property adjustment the 65 year old Husband and the 61 year old Wife retain will likely be insufficient to sustain them for the remainder of their lives.

4. The parties married in Country G in 1982. Their marriage produced three children who are now 38, 35 and 33 years, respectively, and each of whom are financially independent. The youngest child and the parties’ only daughter, X born 1987 (“X”), lives with the Wife in the former matrimonial home  (property C”). X’s son who is about four years old also lives with the Wife in property C.

5. When the parties lived in Country G during the early years of their marriage they lived with the Husband’s parents for around 11 years. There is a factual dispute between them as to what financial contributions they were making towards their accommodation costs, the Husband stating that they lived at very low cost. The Wife said that they lived making significant contributions and suggested that those contributions were made almost solely by her.

6. In 1993 the parties purchased their first home in Country G. Like many aspects of this case, there was a factual dispute as to how that property’s purchase was funded. The Husband asserted they used money that they had saved as a result of living with his parents together with a mortgage and the Wife stated that she (almost) solely made the contribution to the purchase of that property.

7. In 1997 the Husband inherited a home in Country G which was later sold and for which he received around $7,000. Again, there was a factual dispute between the parties as to how the proceeds of sale were applied, with the Husband asserting they were applied for day-to-day living expenses and the Wife asserting that the moneys were frittered away by the Husband meeting his own needs rather than those of the family.

8. The Wife is qualified as a healthcare professional and completed her training as a healthcare professional in 1999 in Country G. In 2002 the parties relocated the family to Australia with the Wife coming first in or around mid 2002 and the Husband arriving a few months later in late 2002. The Wife obtained employment as a healthcare professional and the Husband worked in the service industry initially casually and ultimately obtaining full-time employment in that role. In 2006, so about four years after the parties arrived in Australia, the parties purchased property C. The purchase price for that property was $393,500 and according to the Wife the $19,000 deposit was paid for solely by her and was a contribution purely on her part. The Husband asserts property C was funded completely by mortgage through Bank E. The Wife also adds that she also had to discharge a credit card debt of around $20,000 which had been incurred in the Husband’s name in order to obtain the mortgage.

9. In 2015 after an incident of alleged violence, the Wife and X left property C and stayed in refuge/ safe house accommodation, leaving the Husband in occupation of property C. The Wife and her daughter returned to property C in or around November 2015. In January 2016 the Husband vacated property C and did not return to the property until February 2017. Between February and August 2017 the Husband returned to property C. 

10. Before I turn to the witnesses I note that in these reasons and pursuant to section 140 of the Evidence Act 1995 (Cth) the standard of proof is to the balance of probabilities. I also note that there have been numerous facts and matters referred to by the parties in these proceedings. It is not possible to refer to every fact or matter in the proceedings and nor is it necessary to do so.

11. These reasons are not intended to be a total account of the issues sought to be ventilated by the parties at hearing. I have had regard to the totality of the evidence in these proceedings. If I have not referred to a particular matter, it does not follow that I have not had regard to it. In these reasons unless otherwise stated or unless it is obvious I am referring to contextual matters, a statement of fact is a finding of fact.

12. Each of the Husband and the Wife gave evidence and were cross-examined. Neither of the parties were reliable witnesses and cannot be assessed as so.

13. On the Husband’s part, he told deliberate untruths with respect to punching his daughter in the nose in 2014 and breaking her nose. I find that he told those untruths deliberately and knowingly misleading the Court at the time he swore affidavit material. I cannot assess him as a result of that as a reliable witness and I have real concerns that when it suits him, or when he can avoid telling the truth, that he is at risk of being untruthful.

14. I also, however, assess the wife as an unreliable witness and I cannot accept that she has objectively assessed all the facts surrounding her subjective belief and conclusions. From time to time I regard her evidence as quite bizarre and paranoid. She had propensity to exaggerate and draw conclusions when the same were not warranted. This must in turn impact on every aspect of her evidence, including her contention that it was she alone who made financial contributions to the marriage and was the victim of the Husband’s surreptitious and at times controlling behaviour with respect to finances. The Wife views numerous facts and matters through the prism of her discontent and her sense of herself as a victim. 

15. Furthermore, when the parties’ daughter, X, gave evidence, at times her evidence corroborated the evidence of the Wife, but at times it was quite contradictory to the evidence of the Wife. For instance, with respect to the evidence surrounding the visit to a tourist attraction.

16. X also gave evidence and was cross-examined. She was clearly partial to the Wife, describing the Wife rather unusually as her best friend. It was abundantly clear that X would do anything to support her mother and that they had had numerous discussions over the years around issues of family violence and the like. 

17. Nevertheless, overall I regarded X as a relatively truthful witness. However, the tenor of her evidence has clearly been coloured by the Wife’s views and beliefs. Particularly, with respect to the incident with the wooden table. Notwithstanding that she incorrectly described number of legs on the table, I have formed the view that her evidence surrounding that incident had a ring of truth about it, particularly when she described her having blood on her own hands as a result of her mother's injuries.

18. Turning to the discussion, at first instance I must consider whether it is just and equitable to make an alteration of property interests between the parties. After the length of this marriage, the joint efforts of the parties and their acquisition of their modest wealth, I am satisfied that it is just and equitable to alter the parties' property interests and neither party suggested that I should not do so.

19. In considering what seem to be the significant issues in these proceedings I turn firstly to the Husband’s contention that superannuation should be added back. The parties’ respective superannuation entitlements have been depleted by each of them to almost zero. The Wife's superannuation had been at around $83,000 and the Husband’s at about $35,000 at the time of separation. The Wife withdrew her superannuation entitlements and it is her evidence that she applied $40,000 towards the mortgage of the property C for the conservation of the property. She said that mortgage arrears had accrued to that extent by the Husband in 2015 when he was in occupation of the property when she and X were absent.

20. As it turns out, and I accept, the home loan arrears were around $12,000 and the Wife's statement that she put $40,000 was an exaggeration because the arrears were discharged. She applied about $28,000 later towards living expenses which would have included the mortgage, but there were also various gifts to the parties’ children and grandchildren. The Husband for his part had around $35,000 which he also withdrew from his superannuation entitlements and has expended largely on living expenses. Quite clearly, if the Husband was successful in his position that the superannuation amounts should be notionally added back, that would result in an advantage to him as the Wife’s superannuation was more than double the Husband’s. The Husband conceded during his evidence that it was not appropriate to add back the superannuation, although I do not take that concession as being determinative of the issue as he could hardly be expected to understand the legal and the potential practical outcomes of such a concession.

21. Starting with AJO & GRO [2005] FamCA 195, a case of the Full Court, their Honours referred to three clear categories where it might be appropriate in the exercise of discretion to add back property which is no longer in existence. Those circumstances are:-

    (a)where there has been a previous distribution of matrimonial assets;

    (b)where the parties have depleted the asset pool on legal fees; or,

    (c)where a party has embarked on a course of conduct that has negligently or recklessly diminished or wasted assets.

22. The only arguable one of those considerations is whether or not I should regard the withdrawal and use of the superannuation as a pre-distribution of matrimonial assets. In the circumstances of these proceedings, it is not appropriate to add the superannuation back under that category on the basis that there was certainly a dynamic and fluid relationship between the parties in terms of comings and goings, the funding of weddings of the children and the like post-separation. It is impossible and not warranted to try and artificially dissect something which seems to be in the nature of the way the parties conducted their lives post-separation. 

23. Furthermore, in trying to do so there is a real danger that one or both of the parties would have an injustice visited upon them. It is probably for that matter that Justices Murphy and Kent in Grier & Malphas [2016] FamCAFC 84 pointed out that:-

    128.     Each of the parties used funds available to them in the approximately four years between separation and trial.  Included in purposes for which the sums were used were the reasonable living expenses of each. So-called “addbacks” are the “exception and not the rule”. Further, although always of course a matter of discretion it can be said that, in the usual course of events, amounts spent on reasonable living expenses would not often be added back.

    129.     As the Chief Justice points out, with those principles in mind, the trial judge adopted a broad-brush approach to the parties’ respective expenditure. No error is established by reason alone of that approach; authority eschews “overly pernickety analysis” and s 79 demands neither an audit nor an exercise in accounting. However, when significant sums of money are said by one party or the other to have been “wasted” or to amount to a unilateral “premature distribution of property” and the evidence is suggestive of either or both, an analysis of the relevant sums and their use is needed.

1. I am not satisfied that the superannuation sums should not be added back. They have been expended by the parties who are of a certain age. To do justice and equity between the parties now it is best to consider what is available to them now rather than notional constructions of an asset pool which bears no resemblance to the reality of the parties’ present financial situation.

2. Accordingly and having regard to the fact that the parties' present superannuation entitlements are now negligible, I propose to disregard superannuation either in existence earlier or at the present time. I also adopt that same approach with respect to the $8,000 received by the Husband with respect to vehicle D and I do not propose to add that sum back into the asset pool on the same basis.

3. I turn now to the debts of the Husband. 

4. There are two credit card debts and a loan totalling an amount $35,900 in the Husband’s name. It is the Wife’s contention that the Husband borrowed that money without her knowledge. However, it became abundantly clear that the debts were incurred during the relationship. The Husband's explanation is that whilst he concedes that it was the Wife who was the person was physically paying the mortgage, he was paying other expenses within the household. The parties were clearly not significant earners and from 2014 it seems they were both on Centrelink benefits. 

5. What is also clear is that the parties have what I regard as a quite natural commitment, which would seem to me to have a cultural overlay, to ensure that their children were married appropriately and in the Indian cultural tradition. For both X and one of their sons the parties were concerned to ensure and make contributions towards their respective weddings. In terms of one of the loans at least, it was clear that $15,000 of that went towards the son’s wedding in India.

6. There is insufficient evidence in these proceedings to suggest that any money is spent within the ambit of that debt and liability was spent on anything but general living expenses or expenses for the children, save for one aspect which I will come to shortly. Accordingly, I am satisfied that the debts should be included in the calculation of the asset pool. That one matter I did want to come to was that it was the Husband's evidence that one of his sons took one of the credit cards and spent money on himself, saying that he was going to pay those moneys back and he did not do so. So that is the exception. 

7. I also thought that the Husband’s evidence surrounding buying televisions and the like was truthful. Although I do not regard him as a particularly reliable or satisfactory witness, I will accept his evidence in that regard. Accordingly, with the compromises with the redaction of nominal bank accounts from the asset pool, the asset pool appears to be very simple:-

   (d)Property C, less the two mortgages with an agreed value of $386,600; and

   (e)the credit cards and loans in the Husband’s name of $35,900;

   rendering a net asset pool of $350,700. 

8. In considering the parties’ financial contributions during the marriage and incorporating previous comments, I note that the parties were in their 20s when they commenced living together and commenced their married life. Neither of them appeared to have assets of significance at that time. In any event, in a marriage of this duration initial financial contributions would make little, if any, difference to the outcome.

9. The Wife worked as a healthcare professional throughout most of the marriage. The parties’ purchased their first property in 1994, a number of years after marriage and after they had been living in the Husband’s parents’ property. The Wife tried to establish that it was her money alone that was used for the purchase of the property in Country G in 1994. However, it is just impossible and difficult to accept that after 11 years of marriage I should be trying to differentiate between what are put as sole contributions by the Wife without considering all of the other contributions that were going on at that time. I am satisfied that the Wife applied her income throughout the marriage towards the acquisition, confirmation and improvement of matrimonial assets and resources and for the care and the welfare of the family generally. However, I do feel that she has a tendency to inflate her view of her own contributions by suggesting that simply because it was she who was earning the money that she can disregard contributions that were made by the Husband. The Wife has subjectively sought to elevate her financial contributions within the marriage in a way that is not warranted.

10. There were allegations by the Wife that the Husband surreptitiously sold at least two motor vehicles and kept the money for himself, with the husband saying that he applied the money for family expenses. Again, I am not satisfied that the evidence was sufficient to make a finding that the Husband wasted those funds, his evidence being that there were family expenses that needed to be covered.

11. I am satisfied that the Husband received approximately $7,000 after selling his parents’ house that he inherited in 1997. He gave evidence that some of those funds were used to pay off encumbrances attached to the house and bills associated with it, and the remaining funds were applied to the parties’ day-to-day expenses. The amount received was modest, but I am satisfied that his answers in that regard were more likely to be truthful and I accept his evidence in that regard. Notwithstanding that small inheritance, which it seems had been dissipated by the time the parties moved to Australia, it is the Husband’s position that the contributions during the marriage should be assessed overall as equal.

12. Between the parties’ arrival in Australia in 2002, the Husband worked various casual jobs and worked  full-time in the service industry. The Husband lost his job as a in 2014 when he lost his professional licence due to the incidents of family violence between he and X. The Wife’s evidence is that she believes that during the marriage the Husband did not make contributions and he engaged in spending on his own behalf. The evidence does not reach a wastage concern even if I put the evidence at its highest. 

13. Counsel on behalf of the Wife mounted an ingenious argument about post-separation contributions. Firstly, after the Husband lost his job (on the basis that he lost that job because he was violent) and, if I found that the Wife’s Kennon argument was not successful, that I should still take that into account as a negative contribution. I am going to decline to comment in great detail on that argument because there is merit in the submissions by Counsel for the Husband that because both parties were on Centrelink benefits it is difficult to see how the contribution should be assessed throughout that time as anything but equal.

14. A further issue that arises in terms of the asset pool is whether the house and contents of the wife should be included on her side. There is no real evidence of valuation. I offered the parties the ability to do an in specie division and, as it turns out, the only order that the Husband seeks is an order to copy photographs and I will make that order in due course.

15. I find in an indirect sense that the Wife has made some post-separation contributions via X. X has assisted the Wife in paying the mortgage in property C and to that extent there has been a small contribution to the conservation of that asset. Ultimately, the Wife will have a joint mortgage with X in order to facilitate a payment to the Husband of his property entitlements. The Wife said that between 2006 and 2017 X assisted her by contributing $170 per week to the home loan. I regard X’s payments as no more than a board and lodging payment to be paid by an adult child and I do not regard that as a contribution by the Wife.

16. Post-2017 X has been paying around $500 per week towards the mortgage, although she has been living in the home and I regard a proportion of that sum as assisting the Wife by paying board and lodging payments. I do not ignore the fact that X is living in a home to which the Husband has an entitlement. Nevertheless, I do regard part of X’s contribution as being a partial contribution post-separation made on behalf of the Wife along the lines of the principles in Gosper and Gosper [1987] FamCA 43. There could be no suggestion that X was making that contribution on behalf of the Husband because the relationship between she and the Husband has completely broken down. The Wife will receive a slight uplift in the contributions post separation on that basis.

17. The Wife asserts that it was she who made the majority of the non-financial contributions during the marriage. Whilst it is clear that she was the primary carer for the children for most of the time, it is also clear that from time to time the Husband also had care of the children.

18. Other than the issue of X’s post 2017 contribution to the mortgage, there is scant evidence upon which to make a finding that the financial contributions of the parties in this long marriage and period of cohabitation should be assessed as anything by equal.

19. Turning to section 75(2) of the Family Law Act 1975 (Cth) (“the Act”), I note that each of the parties are of a similar age and each of them have significant health concerns. Neither have worked since 2014 and neither of them have a significant earning capacity moving forward. They are each reliant on Centrelink benefits for their support. I accept that each of the parties will be reliant on money received by them for their financial support as they move into this next stage of their lives and it is unlikely that any money will be voluntarily transferred between either of the for the other.

20. As is obvious, neither party is caring for a minor child. Each of the parties have the usual commitments to support themselves moving forward. Each of the parties filed Financial Statements which set out their income and expenditure as at the date of final hearing. As you would expect with people in these modest circumstances, their income and expenditure does not strike as unusual in the circumstances of these proceedings. Neither of the parties have a responsibility to support any other person nor have they sought periodical lump sum maintenance in the proceedings.

21. Accordingly, neither party contended for an adjustment pursuant to section 75(2) of the Act except and unless I found that there was a section 75(2)(o) factor which was relevant. The section 75(2) factors do not favour one party over the other in these proceedings.

22. I turn now to the assessment of whether or not the Wife’s contributions were made significantly more difficult or arduous as a result of family violence. A good proportion of the proceedings was devoted to analysis of family violence alleged by the Wife during the marriage in order to underpin her assertion that her contribution-based entitlement should be superior.

23. Having regard to the principles set out in Kennon & Kennon [1997], I am satisfied on the evidence that there has been some family violence during the marriage perpetrated on the Wife by the Husband. However, I am not satisfied that there was a course of violent conduct by the Husband towards the Wife which has had a significantly adverse impact on the Wife’s contributions or made the Wife’s contributions significantly more arduous than they ought to have been. I note that the given the Kennon assessment can only apply to a narrow band of cases and to be relevant, it is necessary to show that the conduct occurred during the course of the marriage and had a discernible impact on the contributions of the Wife.

24. I refer in these reasons to the often quoted case of Kennon & Kennon [1997] where Justices Fogarty and Lindenmayer said as follows:-

    Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s.79.  We prefer this approach to the concept of “negative contributions” which is sometimes referred to in this discussion.

    In the above formulation, we have referred only to domestic violence, for the reasons which we indicated earlier, but its application is not limited to that.

25. Later their Honours went on to make this comment:-

    It is essential to bear in mind the relatively narrow band of cases to which these considerations apply. To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party.  It is not directed to conduct which does not have that effect and of necessity it does not encompass (as in Ferguson) conduct related to the breakdown of the marriage (basically because it would not have had a sufficient duration for this impact to be relevant to contributions).

26. The Wife’s evidence was that there was violence early in the relationship and in that regard she was supported by her daughter, although I do have regard to the fact that the daughter was only four years at the time and she is recollecting those events at time when she is now 33 years old.  Nevertheless, X confirmed that she observed the Wife being punched by the Husband and later observed there to be blood everywhere. The Wife’s evidence was that at the commencement of the relationship there was so much family violence that she cannot particularise it. However, she did say that from around the mid-nineties when the parties were busy raising their family there was a period of around 11 years when they were relatively happy. This is at odds with the evidence of X who said that there was further family violence when the parties were still in Country G. I note that there is an inconsistency in that regard.

27. For the first part of the parties’ marriage, being the period when they were still Country G, I do not regard that the evidence of the Wife with respect to violence as reliable nor is it particularised. Although I am satisfied that there was likely to have been some family violence, I cannot find that it was so significant that it would establish a Kennon uplift. There was the incident in 2014 where the Husband punched X in the nose, causing her have a broken nose. I note that this is a very violent incident and it is family violence which could have affected the Wife as well as X.

28. The Husband’s evidence in regard to this matter was, quite frankly, appalling. Astoundingly in his evidence-in-chief, the Husband simply recanted what he had said in his affidavit material and then sought to retreat behind that position of recantment in order to justify his position. When being cross-examined about the incidents he continually retreated into a position that he had now told the truth and, therefore, by implication he should be exonerated from the lies that he had told. I regard his position as wholly unsatisfactory. It is absolutely clear that at the time the Husband swore his affidavits he was lying and was prepared to mislead the Court in an intentional way.

29. The extent of his mistruths has caused me to reflect as to whether or not I should refer the Husband to the Attorney-General for perjury. The Husband’s evidence on this issue impacts on my assessment of him as a credible witness. I do not regard him as a credible witness and I do regard him as a witness who is prepared to lie in order to get what he wants. Accordingly, I assess the further allegations of family violence in the context of the Husband being an untruthful witness, not only in this depiction of 2014 incident but also in relation to the other aspects of family violence.

30. I have reflected carefully on an assessment of the amount of rage and anger that it would take to punch one’s daughter in the face until her nose was broken and it is suggestive of a highly volatile, disinhibited and angry personality. If he was prepared to take his anger out on X, that it is not a significant leap to think that he would be prepared to take his anger and rage out on the Wife if pushed. I assess the particularised areas of physical violence between the parties in that regard.

31. The next issue was the table incident where it was alleged by the Wife, and corroborated by X, that in a fit of rage the Husband picked up a table and struck the Wife over the head and the back a number of times to the point where she was bleeding. The Husband simply point blank denies that this incident ever occurred. I heard evidence from both the Wife and X about the incident. Counsel for the Husband pointed to a number of discrepancies in the Wife and the daughter’s evidence which I acknowledge there were. Nevertheless, I am satisfied that, having regard to the nature of family violence and the circumstances in which it arises, that on the balance of probabilities and to the requisite standard that this incident occurred and X’s description of having blood on her hands and trying to stem the flow of the Wife’s wounds had a ring of truth about it.

32. Although I have concerns about the way the Wife gave her evidence in some instances, in this instance she was being truthful at the very least to the extent that there was a violent incident perpetrated by the Husband against her. Counsel for the Husband sought to convince the Court that because the Wife had not made a police report that the incident needed to be looked at in the context of the previous year when police reports were made with respect to X's injuries and that I should take that into account when assessing the Wife’s truthfulness. However, although I well understand why these issues were put by Counsel for the Husband, and it was appropriate that he did so, that issues with respect to reporting family violence to the police belie the true nature of family violence. In these proceedings there are cultural overlays as well.

33. There mere non-reporting of a violence incident is not determinative of whether it occurred. Violence within a family unit is notoriously underreported and I do note that in this instance the violence was directed to the Wife and not X, which may have made a difference in the Wife’s mind. I also note that relatively contemporaneous to this incident, the Wife and X vacated the property C to the safehouse for a period of around six months, which is also corroborative and supports the contention that violence occurred on that occasion.

34. The next issue in the Wife’s underpinning of her Kennon argument was that there were numerous attempts on her life. She says that there have been numerous attempts to poison her.  She refers to the tourist attraction evening which I still find difficult to comprehend and understand. She refers to the fact that there were life insurance policies taken out on her life during the marriage and that somehow I am meant to assume that that means there were to be attempts on her life. She refers to when her son was allegedly talking to someone on the phone about a life insurance policy, her name was mentioned, and she said that she had a “sixth sense” that either the Husband or her sons were to make an attempt on her life.

35. She refers to an incident where she was provided with tea at a grandchild’s birthday party and was violently ill afterwards. A day or so later she came to the knowledge and conclusion that someone had tried to poison her. The Wife’s evidence in regard to this was paranoid, quite bizarre and could not even approximate a finding that there were numerous attempts on her life without even having regard to the matters that I would be required to take into account pursuant to section 140 of the Evidence Act 1995 or in a Briginshaw v Briginshaw (1938) 60 CLR 336 test. I cannot make a positive finding about such a serious matter.

1. Had this been a parenting case, which it is not, the Wife’s presentation around these issues were so concerning that there would have been merit in the contention that a psychiatric assessment of the parties was warranted. Nevertheless, it is not a parenting case. However, to the lay person’s eye it seems that the Wife has significant difficulties and is a histrionic and hyperbolic interpreter of objective facts. In saying that, I have factored that into my assessment when considering the issue that if there has been the continual family violence, that fact in and of itself may impact on her presentation. 

2. However, the fundamental reality is that on any objective assessment of the Wife’s contention surrounding that she at risk or was at risk of being murdered, even with the supporting evidence of X in terms of the hammer or the suffocating with a pillow, that her claim with respect to this aspect of the alleged family violence cannot be sustained. Nevertheless, there is little doubt in my mind that this was a very unhappy union (perhaps except to that 11 years as described by the Wife) and from time to time there has been family violence directed towards the Wife by the Husband.

3. However, in terms of the family violence that I can find occurred over the span of a 32 year marriage, it does not reach that narrow band of cases to which a Kennon argument applies. Furthermore, even though I accept that with violence findings the Court is entitled to implicitly make assessments on the effect of a person’s contributions, I have to observe in these proceedings that there is little or no evidence in the Wife’s material as to how her contributions within the marriage might have been affected even if her allegations of family violence were accepted.

4. The objective evidence in support of an effect on her contributions was limited to the point of being non-existent. The reality is that she worked until 2014. I cannot draw any inferences on facts which are largely non-existent and, accordingly, the Wife has failed to establish her claim on the secondary aspect.

5. Accordingly, having regard to the length of the marriage and the relationship including the periods post-separation where the parties have continued to reside together, and having rejected a finding that I cannot dissect this case in terms of spending and contribution over the course of this long relationship in the way that the Wife seeks, I find that in a general sense with the myriad of contributions made by the parties over a long marriage that their contribution-based entitlement is relatively equal. However, having regard to the post-separation contributions via X and also the fact that during the period X and the Wife had expenses outside of the home for about six months that they spent in safe housing, I propose to give a marginal uplift to the Wife on contributions. I do not regard the section 75(2) factors as favouring either party as I have discussed.

6. Ultimately, in taking into account all factors, the adjustment should reflect a division of 52.5 per cent in favour of the Wife and 47.5 per cent in favour of the Husband. Referring to the asset pool as I have set out, the result is that the Husband shall be entitled to $166,583 plus monies to take into account the debt he will bear, being an additional payment of $35,980. The total payment to the Husband will be $202,482, which shall be rounded to $202,500. The Wife will retain slightly more equity in the home but will service a large mortgage with the assistance of her daughter. She wants the opportunity to retain the home and she should have that.

I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Stewart.

Associate:

Dated:       23 March 2021