Belmore and Belmore

[2017] FamCA 276

FAMILY COURT OF AUSTRALIA

BELMORE & BELMORE [2017] FamCA 276

FAMILY LAW – PROPERTY – Settlement in relation to marriage – Where the parties were married for 31 years and have six children – Where the husband was convicted of a serious assault on the wife and incarcerated for 2.5 years – Where the parties agree that contributions up to the time of separation were equal – Where the post-separation contributions made by the wife exceed those of the husband by eight per cent resulting in an overall assessment of 58 per cent by the wife and 42 per cent by the husband – Where a seven per cent adjustment in favour of the wife pursuant to s 75(2) of the Family Law Act 1975 (Cth) is appropriate – Where an order is made to effect an overall division of property and superannuation assets in the proportions 65 per cent to the wife and 35 per cent to the husband.

Family Law Act 1975 (Cth) ss 75(2); s 79; s 79(1); s 79(2); s 79(4)

Bevan & Bevan (2013) FLC 93-545
Clauson & Clauson (1995) FLC 92-595; 18 Fam LR 693
Kennon v Kennon (1997) FLC 92-757
Stanford v Stanford (2012) 247 CLR 108

APPLICANT: Mr Belmore

RESPONDENT: Ms Belmore

FILE NUMBER: PAC 4930 of 2012

DATE DELIVERED: 4 May 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 27 February 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Murphy

SOLICITOR FOR THE APPLICANT: Able Defence Lawyers

COUNSEL FOR THE RESPONDENT: Ms Spain

SOLICITOR FOR THE RESPONDENT: Dignan and Hanrahan Solicitors and Attorneys

Orders

1. That within 42 days the wife shall pay to the husband the sum of $125,720 and arrange for the discharge of the mortgage to B Town Credit Union and the mortgage in relation to the shortfall from the sale of the husband’s investment property at Suburb C, as well as payment of the unpaid school fees owed to D School.

2. That upon such payment the husband shall sign all documents and do all things necessary to transfer to the wife his interest in the former matrimonial home situate at and known as E Street, Suburb F, NSW being the whole of the land contained in Folio Identifier … at the husband’s cost.

3. In the event that the wife fails to comply with Order 1 above, the husband and wife shall do all things and sign all documents necessary to forthwith list for sale and sell the Suburb F property with an agent agreed upon by the parties or in the absence of agreement as nominated by the President for the time being of the Real Estate Institute of New South Wales and at a price as agreed between the parties or in the absence of agreement as nominated by the agent and the sale proceeds shall be disbursed as follows:

   (i)In payment of the costs of sale including agent’s commission and legal costs;

   (ii)In full discharge of both mortgages referred to above;

   (iii)In payment of all outstanding school fees owing to D School; and

   (iv)In payment of 77.531 per cent from the balance to the wife and 22.469 per cent therefrom to the husband.

4. That the wife shall pay all mortgage repayments in relation to both mortgages and all rates with respect to the said home pending her compliance with Order 1 above or completion of the sale of the property whichever shall apply.

5. That otherwise the husband and the wife are declared the sole owner of all other property and superannuation in their possession and/or control respectively noting that the husband is permitted to take possession of the cedar table, his coins, his tools and the trailer located at the said home by agreement with the wife’s solicitors.

6. That the husband and the wife shall be solely liable for any other debt in their sole name and shall indemnify the other from any claims or actions arising from the same.

7. That all exhibits be released.

8. That both parties have leave to relist these proceedings by arrangement with the Honourable Justice Johnston’s Associate in relation to implementation of these orders.

9. That in the event that either party refuses or neglects to execute any document necessary to give effect to these orders, the Registrar of this Court be appointed pursuant to Section 106A of the Family Law Act 1975 (Cth) to execute such document in the name of the said party and do all acts and things necessary to give validity and operation to the document upon the Registrar being provided with verification of such refusal or failure by way of affidavit.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Belmore & Belmore has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 4930 of 2012

Mr Belmore

Applicant

And

Ms Belmore

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are property proceedings.  The parties in these proceedings are Mr Belmore and Ms Belmore.  For convenience I shall refer to them as “the husband” and “the wife”.

2. They have been unable to agree about division of their property and have asked the Court to determine this.

Applications

1. The husband seeks the following orders:

   1.That within fourteen days of the date of making these orders the Husband and Wife shall list for sale and sell the [Suburb F] property with an agent agreed upon by the parties or in the absence of agreement as nominated by the President for the time being of the Real Estate Institute of New South Wales and at a price as agreed between the parties or in the absence of agreement as nominated by the Agent and the sale proceeds shall be disbursed as follows:

   i.In payment of the costs of sale including agent’s commission and legal costs.

   ii.In full discharge of any encumbrances including the mortgage encumbering the [Suburb F] property.

   iii.In payment of school fees owing to [G School] and [D School] in the sum of $10,000.

   iv.40 per cent of the balance remaining to the Husband or as he directs; and

   v.The balance to the wife.

   2.That pending settlement in accordance with these orders the Wife shall pay all outgoings for the [Suburb F] property.

   3.That forthwith the Husband shall be declared the sole owner in law and equity of the following:

   a.All superannuation entitlements in the Husband’s name except as otherwise provided in these orders;

   b.All accounts with any financial institutions in the Husband’s name;

   c.All items of property and tools in the possession of the Wife upon delivery by the Wife to the Husband of those items of property and tools.

   4.That forthwith the Wife shall be declared the sole owner in law and equity of the following:

   a.The (…) [Japanese motor vehicle 1] in the Wife’s name and the Wife shall forthwith and forever hereafter indemnify the Husband for any liability encumbering the said [Japanese] motor vehicle.

   b.items of furniture, household contents and personal items in the Wife’s possession.

   c.All superannuation entitlements in the Wife’s name; and

   d.All accounts with any financial institutions in the Wife’s name.

   5.That forthwith each party shall be declared the sole owner in law and equity of any property real and personal not otherwise referred to in these orders and both the Husband and Wife shall indemnify each other for any liability encumbering any item of property belonging to the Husband and Wife respectively.

   6.That the Court allocates, as required by Section 90MT(4) of the Family Law Act 1975 (‘the Act’), a base amount of $100,000 to the wife out of the Husband’s interest in the Australian Super Superannuation Fund.

   7.That, in accordance with Section 90MT(1)(a) of the Family Law Act 1975:

   (a)The Wife’s administrators, executors and beneficiaries, heirs or assigns) (are) entitled to be paid, using the base amount allocated in the immediately preceding order, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and

   (b)the entitlement of the Husband in the Australian Super Superannuation Fund (or the entitlement of such other person who becomes entitled to receive a payment out of the Husband’s superannuation interest) is correspondingly reduced by the force of this Order.

   8.That the trustee of the Australian Super Superannuation Fund (“the trustee”) shall do all acts and things and sign all such documents as may be necessary to

   (a)calculate, in accordance with the requirements of the Family Law Act 1975 the entitlement awarded to the Wife in the immediately preceding clause of this Order; and

   (b)pay the entitlement whenever the trustee makes a splittable payment from the Husband’s interest in the Australian Super Superannuation Fund.     

   9.That this order has effect from the operative time and the operative time is four business days after service of the Orders on the Trustee.

2. On the other hand, the wife seeks the following orders:

   1.These Orders are made by way of alteration of property interests pursuant to Section 79 of the Family Law Act 1975.

   2.That within 42 days of the date of these Orders the Applicant Husband sign all documents and do all things necessary to transfer to the Respondent Wife all his right title and interest in the former matrimonial home situate at and known as [E Street, Suburb F], NSW being the whole of the land contained in … at the Applicant Father’s cost.

   3.That simultaneous with the transfer referred to at Order 2 above, the Respondent Wife pay to the Applicant Husband by way of alteration of property interest the sum of $29,025.00.

   4.Deleted.

   5.That the Respondent Mother be declared to have the sole right, title and interest in:

   5.1the [Japanese motor vehicle 1].

   5.2all furnishing and effects in the [Suburb F] property.

   5.3all other real and personal property now in her possession, custody or control.

   6.That the Applicant Father be declared to have the sole right, title and interest in:

   6.1all interests in the CSR shares.

   6.2all interests in the NRMA (GIO) shares.

   6.3the [Japanese motor vehicle 2].

   6.4all other real and personal property now in his possession, custody or control.

   7.That as between the Husband and Wife, and subject to the above Orders, the Husband and Wife shall each respectively retain all interest in and entitlement to:

   7.1All personal property now in (his)/her respective possession or control.

   7.2All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his/her sole name respectively.

   7.3All interests in life insurance policies and superannuation funds standing in his/her sole name respectively.

   8.That the husband and wife shall be solely liable for any other debt in their sole name and shall indemnify the other from any claims or actions arising from the same.   

   9.That both parties agree to waive any entitlement, benefit or interest that they otherwise would have been entitled to make a claim for, in the other (party’s) superannuation.

   10.Both the Husband and the Wife hereby release the other from all actions, proceedings, claims, demands, costs and expenses whatsoever and howsoever arising which either of them had or may have against the other for or by reason of or in respect of any act, cause, matter or thing.

   11.That the parties shall do all acts and things necessary and give all consents and execute all documents and writings to give effect to these Orders in the time periods prescribed.

   12.That in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court be appointed pursuant to Section 106A of the Family Law Act 1975 to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.

Background

1. The husband was born in 1961 and is now 55 years of age. The wife was born in 1962 and is now 54 years of age.  The parties met in approximately 1977 and were married in 1981. They separated in February 2010 and were divorced on 27 February 2013.

2. There are six children of the marriage, namely:

   ·Ms H Belmore born in 1982 (34)

   ·Ms J Belmore born in 1986 (31)

   ·Mr K Belmore born in 1988 (28)

   ·Ms L Belmore born in 1998 (18)

   ·M Belmore born in 2001 (16)

   ·N Belmore born in 2003 (13)

3. In approximately 1977 the parties met and commenced a relationship.  The husband was working at I Pty Ltd.  The wife was working in administrative work.  Neither had any property of significant value.

4. In 1981 the parties were married.

5. In 1982 Ms H was born. She is now 34 years of age.

6. In September 1985 the parties purchased the property at O Street, Suburb P (“the Suburb P property”) for approximately $55,000.  They paid a $14,500 deposit from their savings and borrowed the balance on mortgage.

7. In 1986 Ms J was born. She is now 31 years of age.

8. In 1988 Mr K was born. He is now 28 years of age.

9. In 1989-1990 the wife worked for Company Q for 12 months.

10. The husband commenced working at Company R in 1991, which later became Company S.

11. In 1995 the parties sold the Suburb P property for $120 000. They then purchased the property at E Street, Suburb F (“the Suburb F property”) for approximately $100,000.  The property was purchased for land value only. The parties lived in an older cottage on the property while they caused a new home to be built which took approximately three years. The property was built to lock up stage by T Builders and the husband then did a lot of work to the property himself.

12. in 1998 Ms L was born. She is now 18 years of age.

13. In 2001 the husband was diagnosed with Alopecia. He said that he was also treated for depression and anxiety.

14. In 2001 M was born. She is now 16 years of age.

15. In October 2002 the parties purchased an investment property at U Street, Suburb C (“U Street”) for $304,950.

16. In 2003 N was born. She is now 13 years of age.

17. In 2007 the wife returned to the paid workforce obtaining employment with V Org.

18. In February 2010 the parties separated.

19. In 2010 the husband assaulted the wife. She sustained numerous injuries from the assault. She was hospitalised and required surgery. The husband was charged with Aggravated Sexual Assault and an Apprehended Violence Order (“AVO”) was issued for the protection of the wife.

20. The husband was refused bail and was incarcerated from May 2010 to August 2012. The wife applied to have the AVO varied to enable her to visit the husband in jail with Ms L, M and N. The wife, M and N visited the husband but Ms L refused to attend.

21. On 2 August 2010 the husband was terminated from his employment at Company S as a result of his incarceration.

22. In 2010 the U Street property was sold for $332,000 as the wife could not afford to make the mortgage repayments.

23. The husband was released from prison in August 2012.

24. On 27 February 2013 the parties were divorced.

25. On 15 November 2013 the wife filed a Response to Initiating Application seeking orders for parenting and property issues.

26. On 18 March 2014 interim parenting orders were made which provided for the children to live with their mother and which restrained their father by injunction from attending the children’s school or home, approaching them or communicating with them.

27. In 2014 the husband received an inheritance of $15,000.  This has been paid to his lawyers in legal fees.

28. On 25 July 2014 an Independent Child Lawyer (“ICL”) was appointed to represent Ms L, M and N.

29. On 20 May 2015 interim parenting orders were made by consent which provided for Ms L no longer to be a child subject of these proceedings and for the ICL to be discharged in respect of her. Further orders were made by consent permitting the father to send gifts and cards to M and N on their birthdays.

30. On 17 February 2017 the husband filed a Notice of Discontinuance in relation to the parenting dispute. On 27 February 2017 orders were made by consent in relation to the parenting of M and N. This will be referred to below.

The applicable law

1. Sub-section 79(1) of the Family Law Act 1975 (Cth) (“the Act”) provides to the effect that in property settlement proceedings the Court may make such order as it considers appropriate altering the interests of the parties to the marriage in the property.

2. Sub-section 79(2) provides that the Court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.

3. Sub-section 79(4) sets out various matters which must be taken into account in considering what order (if any) should be made under the section. These matters include direct and indirect contributions, financial and otherwise by or on behalf of a party or a child to the acquisition, conservation or improvement of any property of the parties, contributions by a party to the welfare of their family including as a homemaker or parent, relevant matters referred to in s 75(2) and the other matters referred to in s 79(4).

4. The operation of s 79 was the subject of consideration by the High Court in the case of Stanford v Stanford (2012) 247 CLR 108. In that case the majority said (at page 120) in referring to ss 79(2) and 79(4) as follows:

   35.… the requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.

   36.The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. … while the power given by s 79 is not “to be exercised in accordance with fixed rules”, nevertheless, three fundamental propositions must not be obscured.

5. The High Court said that the first of these propositions is for the Court to identify, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.

6. The second is that although s 79 confers a broad power on the Court, it is not a power that is to be exercised according to an unguided judicial discretion. It must be exercised in accordance with legal principles, including the principles which the Act itself lays down.

7. The High Court said that the third fundamental proposition is that the question of whether the order is “just and equitable” is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters set out in s 79(4). To conclude that making an order is “just and equitable” only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2) would be to “conflate” the statutory requirements and ignore the principles laid down by the Act.

8. And the High Court majority went on to say (at page 122) as follows:

   41.…  The fundamental propositions that have been identified require that a court have a principled reason for interfering with the existing legal and equitable interests of the parties to the marriage and whatever may have been their stated or unstated assumptions and agreements about property interests during the continuance of the marriage.

The parties’ existing legal and equitable interests in property

1. The parties’ interests in property and superannuation are as follows:

$
1.         Former matrimonial home at E Street, Suburb F	645,000
2.         Husband’s Japanese motor vehicle 1	Nil
3.         Husband’s superannuation	212,748
4.         Wife’s home contents	1,500
5.         Wife’s savings	135,000
6.         Wife’s Japanese motor vehicle 2	5,000
7.         Wife’s superannuation	53,277
_____________
$1,052,525

1. The liabilities are as follows:

$
1.         Credit Union mortgage	66,329
2.         Suburb C mortgage	8,894
3.         Unpaid school fees – D School	10,252
_____________
$85,475
Surplus	$967,050

Sub-section 79(2)

1. Sub-section 79(2) of the Act provides:

   The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.

2. In their decision in the case of Bevan & Bevan (2013) FLC 93-545 the Full Court (Bryant CJ and Thackray J) said as follows at page 87,234:

   In our view, it will be less likely that the separate issues arising under s 79(2) and s 79(4) will be conflated if judges refrain from evaluating contributions and other relevant factors in percentage or monetary terms until they have first determined that it would be just and equitable to make an order.

3. In the present case, the parties were married for more than 31 years and have raised six children, four of whom are now adults.  Their most valuable asset is their former matrimonial home at Suburb F.  They purchased the site in joint names and had the house built as a home for themselves and their children.  But the husband and the wife have not resided there together for seven years. 

4. If the Court did not make orders, the parties’ financial interests would continue to be enmeshed and various unresolved issues between them would not be resolved and reflected in court orders.  In my view, the result would be unfair to both the husband and the wife. 

5. In these circumstances, in my view it would be just and equitable to make an order under s 79 of the Act.

Contributions

1. The husband has worked throughout the marriage up to the time that he was incarcerated in August 2010.  Upon his release approximately two and a half years later he received a pension and has been in receipt of such since that time.

2. The wife has worked in income producing employment as the demands of being the primary parent of the parties’ six children have permitted.  The wife worked for a year in 1989-1990 and later resumed employment in approximately 2007.  She has been in fulltime employment since that time.

3. Up to the time of separation, shortly before the husband was incarcerated, the husband has made the overwhelming financial contributions.

4. Up to the time of separation, both parties made substantial contributions to the welfare of their family consisting of them and the children.  But the overwhelming contribution in this regard has been made by the wife.  This is because the way the parties arranged their family and parenting responsibilities involved the husband becoming the major breadwinner and the wife staying at home for many years devoting herself to being the primary homemaker and parent.  But in saying this, there is no question that the husband also contributed significantly to the parenting and to the work around the home, up to the time of separation.

5. It is also the case that the husband undertook a very considerable amount of the work involved in constructing the parties’ new home on the Suburb F land from lockup stage to completion.  But he was able to have the time to do this because the wife was assuming the major responsibility in caring for the children during these times.  Accordingly, while the husband is to be commended for his outstanding efforts in this regard, bearing in mind the wife’s contributions, the acquisition of the home at Suburb F has to be regarded as the product of the joint efforts of the parties.

6. To the parties’ credit, quite properly in my view, they have reached agreement that their contributions overall, up to the time of separation, have been equal.

7. In relation to the contributions after separation, the husband concedes that these favour the wife and that the appropriate assessment is that they exceed his contributions by five per cent.

8. It is the case that upon his incarceration the husband’s longstanding employment with Company R came to an end.  From this time the wife had to assume the totality of the care of the children and the funding thereof without contribution from the husband who was in prison.  As I have said, when the husband was released from prison, he then became in receipt of the pension.  He said this was the disability pension but enquiries appear to indicate that in fact it was the Newstart Allowance.  In any event, the evidence is unclear about the exact nature of his pension.  The significant matter is that the sole responsibility for caring for the children and funding their care continued to fall upon the wife.  The husband has not had any contact with the children since the time of his imprisonment apart from what I understand were a couple of visits by the younger children to him in prison.  The wife continued in her employment and she has managed to pay the mortgage repayments in respect of the former matrimonial home. 

9. As also indicated above, there was an investment property at Suburb C which was purchased in the husband’s name and negatively geared.  The wife did not pay the difference between the income earned from rent for this property and the cost of all the outgoings.  The consequence was that the bank stepped in and ultimately the husband had no choice but to sell the property.  There is an amount of $8,894 outstanding to the bank in respect of the loan for this property. 

10. The wife continued to work and meet the costs of the children over the period from 2010 when the husband was imprisoned to the present time which is approximately seven years.  The only contribution which the husband has made over this period is that he paid a total of $130 towards the mortgage in 2016 and a total of $150 towards mortgage repayments in 2015.  He did not make any contribution to outgoings in respect of the home.

11. Accordingly, the after separation contributions by the wife have been significant indeed. 

12. As I have said, it was submitted on behalf of the husband that the appropriate assessment for this period would be five per cent in favour of the wife.  On the other hand, there was a very strong submission by counsel for the wife that the appropriate assessment would be 10 per cent.

13. I note also that the wife has managed to save $135,000.  Some of this money was the result of her saving funds prior to separation.  But it is also clear that much of the money was from the wife’s employment following separation, from lump sum Centrelink Family Payments and $20,000 was an award to the wife from the Victim Compensation Fund attributable to the husband’s violent attack on her which caused him to be imprisoned.  In my view, the husband could not be seen to have made much contribution, if any, to that part of these funds which came to the wife after separation.  Clearly this is also significant in terms of after separation contributions.

14. Bearing in mind the dollar amounts involved, in my view, the appropriate assessment for the wife’s contributions following separation is eight per cent.  This would be a differential between the parties of $154,728.  Accordingly, the assessment of contributions by the parties overall is that they have been 58 per cent by the wife and 42 per cent by the husband.

Sub-section 75(2) matters

1. The husband is 55 years of age and he is on a pension.  Previously he has been diagnosed as suffering from depression and anxiety with such condition having been managed by him taking Zoloft medication daily.  It was submitted on behalf of the wife that there is no current medical evidence before the Court about his state of health.

2. It is an inescapable fact that the husband lost control to the point where he committed the very serious assault on the wife with the consequence that he was imprisoned for approximately two and a half years.  He has not had employment since and, as indicated above, has had to rely on the pension.  Given these matters and his age, together with the fact that he has had some level of mental health difficulty in the past, in my view, his prospects for repositioning himself in the workforce, attracting a significant income could only be judged as being poor.

3. His income from his pension is $487 per week.  The husband was cross-examined in considerable detail about his financial circumstances and particularly his cost of living.  It was very clear that he struggles to make ends meet.  His explanation for funding what is a shortfall between his living costs and his income from his pension was that his friends loan him money.  There was no evidence to support this but, in my view, clearly he must be receiving funds from somewhere or he would not have a roof over his head.

4. On the other hand, the wife is 54 years of age and in reasonable health.  Her income is $1,455 per week comprising her salary of $1,305 per week, as well as $150 per week from the Family Tax Benefit.  On present indications, in my view, the wife has the capacity to continue working in her current form of employment for the foreseeable future.

5. It is clear that she is able to make ends meet because her evidence is that she has managed to save a substantial sum.  But it would appear that she is extremely careful with money.

6. At the outset of the property hearing I made orders by consent in relation to the parenting arrangements for the parties’ two youngest children, M and N.  Those children are 16 years and 13 years respectively.  Under the orders the children will live with their mother and she is to have sole parental responsibility for them.  No provision was made under the orders for them to spend any time with their father.  Consequently, the wife has the entire responsibility for the care of the children and to provide financially for them.  This is a big responsibility which on all current indications will continue until the children attain adulthood.

7. The husband has a valuable interest in his superannuation that interest having a present value, as indicated above, of $212,748.  As I have also said, the wife has superannuation with a value of $53,277.  It is the case that at a very late stage of the proceedings, very recently I understand, the husband’s solicitors informed those acting for the wife that he was now seeking a superannuation splitting order.  It was said that he did not want to be left in the position where he would have to bear the total responsibility for such a significant amount of superannuation, particularly bearing in mind that he is 55 years of age. 

8. The difficulty in a practical sense for the husband is that although he sent a letter to the trustees of the superannuation fund seeking their view about the Court making a superannuation splitting order, he has not yet received a reply from the trustees.  The consequence therefore, in my view, is that the Court is in no position to make a superannuation splitting order.  Accordingly, as part of the husband’s property settlement he will have to accept that a major part of his assets will be reflected in his superannuation.  Whether he might be able to approach the trustees and make application for release of the whole or part of the money on the basis of hardship is far from clear to this Court.  But this is a matter which, in my view, account must be taken of because as things stand a significant part of his assets will be tied up in the superannuation to which he might not be able to have access for some years yet.

9. There was also a strong submission on behalf of the wife that this is a case to which the principle in the case of Kennon v Kennon (1997) FLC 92-757 would apply. It was submitted that this is a marriage during the course of which the husband perpetrated acts of domestic violence upon the wife. The wife alleged that apart from the very serious assault on her in 2010 in respect of which the husband was incarcerated, there were previous incidents of violence by the husband on her. The wife said that when she was pregnant with H, which would have been in approximately 1982 the husband kicked her in the stomach. The husband denied this. The wife alleged that sometime in the 1980s the husband borrowed a firearm from a friend and threatened the wife’s grandmother, the child H being present and witnessing the threat. The wife alleged that in 2009 the husband pushed her to the ground and sat on her chest so she could hardly breathe. She said that she was screaming for him to get off and that the children, Ms L, M and N were present. The husband denied this also. The wife also said that on a different occasion in 2009 the husband punched her in the face and smashed her mobile phone with an axe, this being in the presence of H, Ms L and a childhood friend of Ms L. The husband denied this.

10. In Kennon at page 84,294 the Full Court 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…

    and at 84,295 the Full Court said as follows:

    …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…

11. It was submitted on behalf of the wife that the husband’s violence has had a significant adverse impact upon the wife’s contributions in the sense that it has made her contributions more arduous than they should have been.  This was said to have arisen from the fact that the children were disturbed by the husband’s violent behaviour to the point where Ms L has suffered from some mental health issues and that the children’s behaviour has been more difficult for the wife to deal with than otherwise it should have been.

12. On the other hand, counsel for the husband submitted that the Kennon principle does not apply in this case because the violent behaviour, that is, the proven behaviour occurred in 2010 at a time of the breakdown of the marriage which period is excluded by the statement in Kennon that “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 sufficient duration for this impact to be relevant to contributions)”.  Although I have some reservations that the application of this principle is as confined as the passage states, in my view, the Kennon principle is not applicable to the present case for the following reasons.

13. Firstly, I am not satisfied that the evidence in relation to the pre-separation allegations of violence is such to enable the necessary findings to be made in favour of the wife.  In relation to the violence at separation, as I have said, the 8 per cent difference between the parties’ contributions relates only to the period after separation and particularly following the husband’s imprisonment.  So the husband’s assault on the wife clearly made it more difficult for the wife to make her contributions because she has had to provide all the care and support of the children because the husband was in prison.  In other words, in my view, there is no room in this case for Kennon because the effect of the assault has brought about the 8 per cent assessment in the wife’s favour. It would therefore be inappropriate to provide some top-up pursuant to s 75(2) of the Act on account of the Kennon principle.

14. Bearing in mind the view that I have that the wife has a significantly greater income earning capacity than the husband, taking account of the fact that the wife will have the sole care of the children, as well as what would appear to be the entire financial burden of providing for them over still quite some years until adulthood, also taking account of the disparity between the parties in terms of their contributions which significantly favour the wife, as well as the other matters referred to above, in my view, to arrive at a just and equitable order requires a set of available assets in favour of the wife in the amount of seven per cent thereof.

15. I accept that in the case of Clauson and Clauson (1995) FLC 92-595; 18 Fam LR 693 the Full Court of this Court indicated trial judges need to consider the value of the adjustment in real terms. The Full Court said at FLC page 81,911 as follows:

    There is, we think, at times a tendency to assess s 75(2) factors in percentage terms without considering its real impact, and we think there is legitimacy in the views expressed in more recent times that the Court has tended to operate in this area within artificially delineated boundaries. That is, it appears almost to be inevitable that the s 75(2) factors will be assessed in a range between 10 per cent and 20 per cent. A number of cases will justify an assessment outside those parameters and in any event it is the real impact in money terms which is ultimately the critical issue.

16. In the present case a seven per cent disparity would be a differential of $135 387.

Conclusion and fourth step

1. The wife is to have 65 per cent of the property and superannuation.  This is property and superannuation with a value of $628,582 (65 per cent of $967,050 = $628,582).

2. The wife has the following:

$
1.         Home Contents	1,500
2.         Savings	135,000
3.         Japanese motor vehicle 1	5,000
4.         Superannuation	53,277
$194,777

1. To achieve property and superannuation with a value of $628,582 the wife would require additional property and superannuation with a value of $433,805 ($628,582 - $194,777 = $433,805).

2. This would come from equity in the former matrimonial home.  The parties have equity of $569,777 in the home ($645,000 - $66,329 - $8,894 = $569,777).  But there are outstanding school fees of $10,252 which have to be paid.  Subtracting these from the equity in the home would leave a surplus in the home of $559,525 ($569,777 - $10,252 = $559,525).

3. If the wife was to retain the home she would need to pay the husband $125,720 ($559,525 - $433,805 = $125,720) and pay out the mortgages and the school fees.

4. The wife has made an application for approval for a loan of $100,000.  If she was successful in her application this would be sufficient for her to pay out the two mortgages and the school fees and have a small amount available.  Her savings of $135,000 would appear to be sufficient to enable her to pay the husband the amount of $125,720.

5. On the other hand, the husband is to have 35 per cent of the available property and superannuation.  This would be property and superannuation with a value of $338,468.  The only asset the husband has is his superannuation worth $212,748.  To achieve property and superannuation with a value of $338,468 the husband would require a payment of $125,720 ($338,468 - $212,748 = $125,720).

6. It was submitted on behalf of the wife that she would like the opportunity to pay the husband for his interest so that she could achieve the transfer to her of his interest in the Suburb F property.

7. On the other hand, it was submitted on behalf of the husband that he wanted the Suburb F property to be sold.  It was submitted that despite him having agreed to a joint valuer and that joint valuer having the opinion that the property has a current value of $645,000, the husband is dissatisfied with this valuation.  He appears to have it in mind that on a sale, the property would achieve more.  But the husband did not seek to call any other expert opinion nor did he seek to cross-examine the joint expert.  His counsel endeavoured to tender some market appraisals by real estate agents in respect of properties in the general area which I declined to accept on the basis that the authors were not registered valuers and therefore not qualified to provide an opinion.

1. In all the circumstances, I accept the valuation dated 15 February 2017 by Messrs Mr W and Mr X, valuers of $645,000.

2. If the wife is able to pay the husband for his interest in the former matrimonial home this would obviously have the advantage of providing a home not only for her but also for the children, particularly the two minor children.  On the basis of her present financial circumstances, the wife should be able to continue working in her paid employment and be able to manage the mortgage repayments, and the costs of maintaining herself and the children.  If the wife does not pay the husband in accordance with the opportunity I propose to provide to her under the orders, then the property will have to be sold and the net proceeds paid in the appropriate proportions consistent with my findings.

3. On the other hand, the husband will have his superannuation and a payment to him by the wife of $125,720.  I accept that this is a modest amount particularly if he was unable to persuade the trustees of his superannuation fund to release at least part of his superannuation monies to him in the near future.  On the facts of this case, particularly bearing in mind the tragedy to this family of the husband having perpetrated such a serious assault on the wife and keeping in mind, of course, the very real needs of the children, this is the result which ultimately this Court regards as being just and equitable in all the circumstances.

4. As I have said, the amount available from a sale of the home, leaving aside selling costs, after discharging mortgages and paying the school fees, would be $559,525.  The wife would have $433,805 which is 77.531 per cent thereof.  The husband would have $125,720 which is 22.469 per cent.

I certify that the preceding ninety two (92) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 4 May 2017.

Associate:     

Date:   4 May 2017