BENNETT & BENNETT

FAMILY COURT OF AUSTRALIA

BENNETT & BENNETT

[2021] FamCA 182

FAMILY LAW – CHILDREN – child related proceedings – parenting proceedings resolved by consent save as to change of children’s surnames, issue of passports, overseas travel and the father being unable to access the children’s school information – where father has been found guilty of assault and aggravated indecent assault in relation to the children – where father has not spent time with the children since separation in 2016 – where all children expressed a strong wish to not see the father – where mother seeks to change the surname of the three youngest children to her maiden name in circumstances where the two adult children have so done – order for mother to have sole parental responsibility extended to change of surname of the children – order removing the children from the Airport Watch List – order for mother to obtain passports for the children without the consent of the father and travel overseas with the children on any occasion she deems appropriate and the father restrained from accessing the children’s school information

FAMILY LAW – PROPERTY – where evidence of expenditure of significant capital in wife’s hands not readily explained – where wife’s evidence was convoluted and contradictory at times – where husband agreed parties’ expenditure exceeded their income and that capital was used to fund this deficit during the relationship – where the wife was seized of significant wealth pre-cohabitation – where the wife was the primary parent and homemaker prior to separation and solely since separation in 2016 and into the future – consideration of the impact upon the wife’s contributions and parenting of the husband’s past behaviour, subsequent criminal convictions and incarceration – where the wife seeks to retain the former matrimonial home – order for wife to receive 80 per cent of the net matrimonial asset pool and husband the remainder

Family Law Act 1975 (Cth) ss 61DA(2), 75(2), 79

Bevan & Bevan (2014) FLC 93-572
Coghlan & Coghlan (2005) FLC 93-220
Dickons & Dickons (2012) Fam LR 244
Ferraro & Ferraro (1993) FLC 92-335
Kennon v Kennon (1997) FLC 92-757
Pierce & Pierce (1999) FLC 92-844
Stanford v Stanford (2012) 247 CLR 108

APPLICANT:

Ms Bennett

RESPONDENT:

Mr Bennett

FILE NUMBER:

SYC

1880

2016

DATE DELIVERED:

21 April 2021

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Henderson J

HEARING DATE:

17, 18, 19, 20 February 2020, 29 June 2020, and 3 September 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Breeze

SOLICITOR FOR THE APPLICANT:

Self-Represented Litigant on 17, 18, 19, 20 February 2020, 29 June 2020

El Baba Lawyers Pty Ltd on 3 September 2020

COUNSEL FOR THE RESPONDENT:

Mr Cairns

SOLICITOR FOR THE RESPONDENT:

Phillip A Wilkins & Associates

Orders

That the mother have sole parental responsibility for the children J born … 2003, K born … 2005, and L born … 2008 (collectively “the children”) including sole responsibility for decisions about changing the given names or surname of J, K and L and that this Order shall act as authority for her to do so without the consent of the father and this Order authorises the Registrar of Births, Deaths and Marriages to change the name of the child in accordance with any application brought by the mother.
The mother shall be permitted to apply to the Commonwealth Department of Foreign Affairs and Trade for a Passport for J, K and L and the Secretary of the Commonwealth Department of Foreign Affairs and Trade is authorised by this Order to issue a passport for J, K and L.
The children J, K and L be removed from the Airport Watch List and that they shall be permitted to travel outside the Commonwealth of Australia notwithstanding the consent of the father has not been obtained on any occasion the mother deems appropriate.
That the mother do all acts and things necessary to have the father withdrawn from the children’s enrolment at D School and the father is thereafter restrained from receiving information about the children as it relates to their education.
The children live with their mother.
The wife transfer any interest or shareholdings she has in the business known as E Pty Ltd to the husband forthwith.
The husband and wife are to pay any tax payable on the sale of the E Pty Ltd customer list equally.
The wife is to pay to the husband the sum of $389,821 within 90 days of the date of these Orders.
The husband is to sign all documents necessary to enable the wife to comply with Orders 6 and 8 herein.
Upon payment of the sum as per Order 8 herein the wife will own the property at B Street, Suburb C absolutely.
In the event the wife cannot or chooses not to comply with Order 8 herein the wife is to place the property at B Street, Suburb C on the market for sale within 28 days thereafter to be sold by way of auction at a reserve nominated by the wife.
The wife is to have conduct of the sale including appointing an agent and conveyancer or solicitor to act on the sale.
From the proceeds of sale of the property the following is to be paid in the following manner and priority:
(a)The current mortgage to Commonwealth Bank of Australia fixed at no more than $1,378,433 with any amount over and above this sum to be paid from the wife’s share of the proceeds of sale;
(b)       Agent’s commission;
(c)       Solicitor or conveyancer’s cost and usual conveyancing adjustments;
(d)       20 per cent of the then balance to husband;
(e)The remainder to the wife.
Thereafter all property in each party’s name, including superannuation, is to be theirs absolutely and all debts in either party’s name to be their debts absolutely.

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 Bennett & Bennett 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: SYC 1880 of 2016

Ms Bennett

Applicant

And

Mr Bennett

Respondent

REASONS FOR JUDGMENT

The matter of Bennett was parenting and property heard on 17, 18, 19 and 20 February 2020, part-heard to 29 June 2020 and then finalised on 3 September 2020. Mr Breeze of counsel acted for the Applicant wife and Mr Cairns of counsel for the Respondent husband.
The parenting aspect of the matter was finalised at the commencement of the final hearing in that the husband withdrew his Response for time with the children and thus there was no resistance to the wife’s application that they live with her.
I made final orders on 21 February 2020 that the children J, born in 2003, K, born in 2005, and L, born in 2008, live with their mother and that their mother have sole parental responsibility. There are five children of the marriage however the older two children have attained the age of 18 years.
I allowed a re-opening on limited issues on 29 June 2020 concerning the status of E Pty Ltd, the mother’s application to change the children’s surnames, the issue of passports and international travel for the children together with her proposed order seeking that the father not be permitted to contact the children’s school to find out their progress.
Mr Bennett resisted the orders sought on the limited re-opening.
The wife sought to retain the home, receive 85 per cent of the matrimonial property and have included debts to her brother and others as matrimonial debts.
The husband sought to sell the former matrimonial home at Suburb C and equally divide the proceeds of sale. In addition, he disputed inclusion in the pool of some of the debts the wife maintained were matrimonial debts.

Documents read

The documents read are as follows:
a)For the wife:
i)Amended Initiating Application of the wife filed 31 January 2017;
ii)Financial Statement of the wife, not filed but received 17 February 2020;
iii)Updated Financial Statement of the wife filed 31 July 2020;
iv)Affidavit of the wife filed 13 February 2020 with annexures;
v)Affidavit of the wife filed 31 July 2020 with annexures;
vi)Affidavit of Ms JJ filed 13 February 2020;
vii)Affidavit of Ms LL filed 13 February 2020;
viii)Notice of Child Abuse, Family Violence or Risk of Family Violence of the wife filed 23 December 2016.
b)For the husband:
i)Further Amended Response of the husband filed 17 June 2019;
ii)Financial Statement of the husband filed 13 February 2020;
iii)Updated Financial Statement of the husband filed 1 September 2020;
iv)Affidavit of the husband filed 13 February 2020 with annexures;
v)Affidavit of the husband filed 1 September 2020 with annexures;
vi)Affidavits of Ms Z filed 31 January 2017 and 7 June 2019;
vii)Affidavit of Ms UU filed 28 November 2017.
The exhibits were as follows:
a)For the Court:
i)Court exhibit 1: Joint balance sheet;
ii)Court exhibit 2: An updated joint balance sheet, received when the matter resumed part-heard on 3 September 2020;
iii)Court exhibit 3: Child Responsive Memorandum dated 9 February 2017.
b)For the wife:
i)Wife’s exhibit 1: Wife’s Case Outline;
ii)Wife’s exhibit 2: A proof of evidence document seeking to explain a payment to her brother of $224,176 on the sale of 6 U Street and his repayment of those funds to the wife;
iii)Wife’s exhibit 3: Four documents containing the signatures of the parties confirming a loan of $350,000 from Mr M to Ms Bennett at an interest rate of 12.9% dated 15 October 2008, 15 October 2010, 15 October 2012, and 15 October 2014;
iv)Wife’s exhibit 4: A document from Company FF to the mother detailing an invoice for the B Street, Suburb C property showing a contract price of $568,885 and, with variations, a total build price of $645,804;
v)Wife’s exhibit 5: A bundle of documents containing invoices for various works carried out to B Street, Suburb C in addition to the build totalling $285,127;
vi)Wife’s exhibit 6: Variation from Company SS dated 9 March 2015;
vii)Wife’s exhibit 7: Statement 35 of Commonwealth Bank account ending …18 from 1 December 2014 to 6 January 2015;
viii)Wife’s exhibit 8: Statement 34 of Commonwealth Bank account ending …18 detailing the sale of the property at 6 U Street, Suburb T;
ix)Wife’s exhibit 9: A document outlining a list of cheques relating to the costs to be paid on the sale of 6 U Street, Suburb T and for the purchase of B Street, Suburb C totalling $3,990.161;
x)Wife’s exhibit 10: Wife’s Financial Statement sworn 17 February 2020, but not filed;
xi)Wife’s exhibit 11: A schedule of interim property settlement funds received;
xii)Wife’s exhibit 12: A trust ledger statement from Dettman Longworth Lawyers to the mother.
c)For the husband:
i)Husband’s exhibit 1: Statement 32 of Commonwealth Bank account ending …18 detailing the sale of the property at 4 U Street, Suburb T.

Parties’ assets at co-habitation

The parties were both retailers at the commencement of cohabitation. The wife was seized of valuable property namely:
a)A unit at DD Street, Suburb EE unencumbered;
b)A X Group franchise and customer list sold in total for $491,438 in 2008;
c)Commercial property at S Street, Suburb O which had a mortgage of about $250,000;
d)A European motor vehicle;
e)Approximately $150,000 in savings;
f)Chattels of $25,000; and
g)Superannuation of $20,000.
The husband was seized of the following:
a)An interest in a WW Group business;
b)An interest in an apartment in Suburb XX where the husband asserted he netted $450,000 one year after cohabitation;
c)A European motor vehicle; and
d)Minor savings.

Chronology

The husband, Mr Bennett, was born … 1963. The husband is currently aged 57 years old and is now incarcerated.
The wife, Ms Bennett, was born … 1968 and is 53.
The wife asserts the parties commenced cohabitation in about April 1999, and the husband asserts they commenced cohabitation in early 1997. Nothing turns on this difference.
The parties were married on … 1999.
There are five children of the marriage:
a)G born in 2000 and currently 21 years old;
b)H born in 2001 and currently 19 years old;
c)J born in 2003 and currently 17 years old;
d)K born in 2005 and currently 15 years old; and
e)L born in 2008 and currently 13 years old.
In November 2000 the parties purchased a property at AA Street, Suburb BB for $525,000. This property was sold in July 2006 for $1,002,000.
In April 2001 the parties purchased a property at 4 U Street, Suburb T for $1,100,000. The property was sold in June 2013 for $2,800,000 and at this time the wife re-paid a loan she had taken out earlier to assist in the running of E Pty Ltd of $250,000 to either her brother or a bank.
In 2002 the parties purchased a property at 6 U Street, Suburb T for $2,500,000. This was the matrimonial home.
The wife says she applied the sum of $850,000 from the sale of her property at DD Street, Suburb EE purchased in her sole name in 1995 to the purchase of 6 U Street, Suburb T.
The husband established E Pty Ltd trading as E Pty Ltd (“E Pty Ltd”) in October 2008.
In 2008, the wife sold the X Group franchise she had been operating since 1993, prior to the relationship, for $391,438.
The wife asserts she and the husband borrowed $350,000 from her brother in 2008. The wife entered into a loan agreement to pay interest at 12.9% and for the loan to be paid upon the sale of the S Street, Suburb O property if not before. The wife tendered exhibit 3 to support this loan. The husband disputes the validity of the loan.
The property at 6 U Street, Suburb T was sold in late 2014 for $4,200,000 at the same time as the parties purchased a property at B Street, Suburb C and ultimately constructed a new home on that land.
In November 2014 the property at B Street, Suburb C (“the Suburb C property”) was purchased in the wife’s sole name for $1,685,000.
The existing property was demolished and Company FF was subsequently engaged to build a new home on the then vacant land.
The wife sold her commercial premises at S Street, Suburb O in September 2015 for approximately $920,000. The wife had purchased these premises prior to the relationship.
In or about October 2015, the wife was diagnosed with cancer.
In January 2016, the wife and husband agree that they jointly borrowed $250,000 from the wife’s brother Mr M. The husband disputes it was necessary.
The parties separated on a final basis on 29 January 2016.
The husband was charged with multiple assault and intimidation charges following an extremely violent incident involving the father, his children and the wife that occurred on that day.
In September 2016 the husband was found guilty of five of the 12 assault and intimidation charges arising from the events on 29 January 2016.
The husband lodged an appeal and three of the intimidation charges were dismissed however the remaining charges were not varied.
Following separation, the mother and the children remained residing in the Suburb C property.
The father subsequently moved into his mother’s apartment in Suburb N.
Between April and October 2016, the mother asserts she borrowed $181,323 from her brother Mr M for living expenses and exhibited a loan agreement between herself and her brother dated 2016 to her affidavit of 13 February 2021 and marked “F” to support these borrowings. This is not claimed as a matrimonial debt.
On 31 March 2016 the wife commenced proceedings in the Family Court of Australia in Sydney.
The husband responded on 19 April 2016.
On 17 May 2016 the wife’s interim application for spousal maintenance was heard before her Honour Justice Stevenson. On 15 June 2016 her Honour dismissed the application for spousal maintenance, and ordered the parties to increase the mortgage on the Suburb C property by $300,000 with part of those monies to be disbursed to each the wife and the husband by way of partial property settlement, and the remainder placed into a controlled monies account.
The wife was unable to borrow these funds from the bank.
The matter returned to Court in February 2017 and new orders were made. The wife asserts that on or about 31 March 2017, and with the husband’s consent, she obtained a loan from Mr V in the sum of $300,000, at an extortionate interest rate secured by the Suburb C property, in order to comply with Justice Stevenson’s orders of February 2017.
The wife said she was compelled to adopt this course in order to comply with the Court’s orders as the bank would not let her increase the mortgage facility on the home. The wife had been without work for some time, the husband was not paying child support and she had no regular income source.
In or about August 2017 the husband was charged with aggravated indecent assault in relation to G and L and subsequently in relation to J in November 2017. The father was subsequently found guilty of all ten counts and was sentenced to 4.6 years in jail with 2.8 years non-parole. The father’s appeal of this decision was dismissed in April 2020 and he is currently in jail and was so at the time of the resumed hearing in September 2020.
From January 2018 to June 2018, the wife asserts she borrowed $29,000 from Ms JJ, her generous aunt. This is not claimed as a matrimonial debt.
The wife deposes that from April 2018 to August 2018 she borrowed $29,300 from Ms LL, and borrowed a further amount of $10,000 in January 2020. This is not claimed as a matrimonial debt.
On 1 November 2019 the wife borrowed $250,000 from Ms JJ and paid this amount to Mr V in order to, as the wife asserts, reduce the amount of the loan owed to Mr V and cease the extortionate interest rate she had agreed to. This debt forms part of the “Mr V debt” fixed at $257,000 and is claimed as a matrimonial debt by the wife.
It is an agreed fact that the interest rate on the Mr V debt was extortionate.
Due to the aggravated indecent assault charges the husband was not able to renew his business licence in early 2019 and by order I permitted the wife to conduct that business pending the determination of this matter or the sale of the business/customer list.
In December 2019, the customer list of E Pty Ltd sold for approximately $200,000.
E Pty Ltd no longer trades.
The matter was set down for final hearing on 17, 18, 19 and 20 February 2020. It was adjourned part-heard to 29 June 2020 and again adjourned part-heard to 3 September 2020.

Procedural Chronology

Proceedings were initiated by the wife in the Family Court of Australia on 31 March 2016.
The husband filed a Response on 19 April 2016.
The wife’s Application in a Case filed 31 March 2016 seeking “preliminary costs” be paid to her by the husband in the sum of $125,000, as well as seeking orders for spousal maintenance and child support, was listed before Justice Stevenson. Orders were made for the husband to pay to the wife $750 a week until the interim hearing of this application subsequently listed on 17 May 2016.
Judgment was reserved following the interim hearing and on 15 June 2016 orders were made for the parties to do all things to increase the mortgage on the Suburb C home by $300,000. This amount was to be disbursed as to $100,000 each to the husband and wife by way of partial property settlement and $100,000 was to be placed in a controlled monies account to be applied to meet mortgage repayments and outgoings in respect of the Suburb C property.

A financial Case Assessment Conference was held on 11 July 2016 where it was noted that the matter was not yet ready to proceed to a Conciliation Conference as there were no funds available to pay for a single expert to value the Suburb C property or E Pty Ltd.
The wife’s Application in a Case filed 2 August 2016 seeking further interim property orders including payment of the mortgage on the Suburb C property, a discharge the wife’s credit card debts and payment of outstanding school fees was heard before Justice Watts on 22 August 2016 and dismissed, with the final hearing being expedited.
It was noted at that time that criminal proceedings were on foot in relation to the husband on charges of assault and that the children had been cross-examined extensively in relation to those proceedings.
On 26 August 2016 the matter was set down for a Conciliation Conference.
On 11 October 2016 orders were made for the parties to attend a Child Responsive Program on 11 January 2017. It was noted that the valuation of the assets had still not been undertaken.
On 22 November 2016 orders were made vacating the Conciliation Conference due to valuations not yet being obtained. On 14 December 2016 the parties came before Justice Stevenson for a Case Management Hearing. The wife was ordered to file her proposed application for the sale of the husband’s business and the husband was ordered to file his proposed application for the sale of the former matrimonial home. The applications were listed for interim hearing before her Honour on 2 February 2017.
On 2 February 2017 orders were made by consent for the appointment of an Independent Children’s Lawyer and for the parties to appoint a single joint expert to value the husband’s business. The matter was set down for final hearing over seven days commencing 6 July 2017. It was further ordered that the wife was to pay the husband $55,000 by way of partial property settlement, and that the wife pay the sum of $195,000 to her solicitors to be held on trust pending further order.
On 23 May 2017 the final hearing dates were vacated. Orders were made by consent that the costs of the single expert be shared equally.
The wife’s Application in a Case filed 1 May 2017 seeking orders that the sum of $195,000 previously ordered to be paid to the wife’s solicitor to be held on trust be released to the wife was heard before Justice Loughnan on 29 November 2017. Orders were made restraining the wife from causing or permitting any of the children from leaving Australia. Otherwise, his Honour declined to make orders in accordance with the wife’s application.
The wife filed an Application in a Case on 15 March 2019 seeking orders that the husband be restrained from dealing with any of the assets of E Pty Ltd and do all things to enable the wife to manage the business. This application was heard by Justice Henderson on 21 March 2019. Orders were made by consent restraining the husband from alienating or encumbering any of the assets of the business, for disclosure from the wife, and for the business to be sold in the event that the husband receives a custodial sentence. All outstanding interim applications were listed for interim hearing on 17 June 2019.
On 17 June 2019 the matter was set down for final hearing. Judgment in relation to the interim applications was reserved and delivered on 20 June 2019 where the parties were ordered to sell the customer list of the business. From the proceeds, $20,000 was to be paid to the husband and $67,000 to the wife in accordance with the orders of Justice Stevenson of February 2017. Additionally, $75,000 was to be paid to the husband for the payment of his criminal fees, and arrears of child support owing to the wife. This did not eventuate.
The arrears of child support were such that the husband did not receive the $75,000 to pay his criminal legal fees thus, on 8 August 2019, I ordered the wife to do all things to cause the Child Support Registrar to pay the husband the sum of $55,637.06 to enable him to pay for his criminal legal fees. This did not eventuate.
The wife filed an Application in a Case on 18 and 19 September 2019 seeking she be appointed trustee and/or licensee for the sale of the customer list of E Pty Ltd. Orders were made for the wife to be appointed the licensee of the business and the wife was empowered to take all steps necessary to sell the business and customer list.
On 21 November 2019 a section 102NA order was made prohibiting the husband from personally cross-examining the wife.
On 20 December 2019 the wife was ordered to do all acts and things to cause $75,000 to be paid to the husband from the net proceeds of sale of the customer list with the balance to be paid to the wife. This order eventuated.
The matter was heard on a final basis on 17, 18, 19, 20 February 2020 and resumed part heard on 29 June 2020 and again on 3 September 2020.
On 21 February 2020 the order appointing the wife as licensee of the business was discharged. Orders were made for the children to live with their mother and for their mother to have sole parental responsibility. The parties agreed to have an updated valuation report completed of the value of the Suburb C property.
On 27 July 2020 a section 102NA order was made prohibiting the wife from personally cross-examining the husband.
The last day of the final hearing was 3 September 2020 and judgment was reserved.

The evidence

Parenting

The parenting aspect is by far the most encapsulated and easy to deal with aspect of the matter.
The father withdrew his Response and I made orders that the children were to live with her mother. That was uncontested however he did not agree to sole parental responsibility, the children to have passports, the mother to take them outside the Commonwealth of Australia, to a change of the children’s surnames or that he be unable to contact the children’s school and check on their progress, and these are the parenting aspects I must deal with.
The father is currently serving a term of imprisonment for an aggravated indecent assault of the parties’ elder child, G, who was born on in 2000, L, born in 2008, and J, born in 2003. The father was found guilty of these charges of aggravated indecent assault in relation to G, L and J in 2019.
The hearing of the criminal matter was listed for over three weeks in early 2019, where he pleaded not guilty, necessitating the children giving evidence. He was found guilty and sentenced to four years and nine months with a non-parole period of two years and nine months. This judgment was handed down in early 2019.
The husband appealed this decision, which was heard in the Court of Criminal Appeal in early 2020. He remained on bail until the decision was handed down. That judgment was delivered in 2020. His appeal was dismissed, and he was incarcerated in 2020 for a period of four years and eight months, with a release date of 27 December 2024, and with parole to be released in two years and six months on 27 December 2022.
The father had been charged with common assault and intimidation charges relating to the incident on 29 January 2016, the date of separation. This was the night before the parties were to move into their newly built matrimonial home at B Street, Suburb C. The father pleaded not guilty to all of the 12 charges against him. He was found guilty of five charges, with the remaining seven dismissed and the children were required to give evidence at the initial hearing. He appealed those five charges and three of the intimidation charges were dismissed and the common assault charges remained intact.
The incident that occurred at the former matrimonial home was disgraceful. That incident is referred to by the children in court exhibit 3, being the Child Responsive Memorandum dated 19 January 2017, when the mother and all the children and father were interviewed.
Arising out of the common assault charges, an Apprehended Violence Order (“AVO”) was put in place to protect the children from the father, and the fact is they have not seen their father since that time. All five children expressed a strong wish at the Child Responsive Conference not to see their father, and each of the children talked about his frightening, violent, out of control behaviour on that night as well as previously. Their stories were different, cogent and consistent.
Despite this sad and very concerning history, the husband denies he has been violent to his children or he has sexually abused his children. This denial by him is a serious concern for the Court and a serious concern for the mother and the children.
In his affidavit filed 1 September 2020, he says at paragraph 49 “The children have a real fear of their mother and just do what she wants.”
At paragraph 40:
I was only convicted of common assault against L and Ms Bennett which I deny I did it. There were no convictions against G, H, J and K. I was arrested the night before we moved into our newly built home. I had not up to January 29 2016 ever been arrested…Ms Bennett’s statement that the children were traumatised by cross-examination in court proceedings it was Ms Bennett who put the children on the stand against me.
(As per the original)
In the same paragraph the father then refers to:
…the transcripts [of the magistrate] [where she] commented several times on children being a witness to the point, she stated that it was disgraceful that children [aged] 6, 8, 10 were in her court ever.
What the husband failed to understand is if the magistrate said those words, it was because he did not plead guilty to the counts, and the children were compelled to then give evidence. That is unfortunately the law. The wife did not make the children appear in any court. The police took these actions. The police laid these charges, not the wife. The wife made a complaint, and the children confirmed and verified her complaint. The husband simply denies the allegations and has shown little remorse, believing that it is the wife who has put the children up to this.
However, the children’s own words in 2017 in the Child Responsive Memorandum tell a very different story and were as follows.
G was 16 years of age and she said she did not wish to see her father. Her reasons were her father was regularly violent to her and her brothers, mostly her brother H. He would make hurtful comments to her and her siblings, including calling her derogatory names and telling H that the doctors thought he had Down Syndrome. That she was prompted to contact police on the night of the incident that caused the AVO because she felt the violence had escalated to a very frightening level, as she saw her father kick her little brother L in the head. G also said at paragraph 15 that her father had sexually abused her, beginning when she was 15, and she was teary recounting this. She said that she does not know her father very well as he spent limited time with her or her siblings and that when he was present, he was abusive. She feels safe and close with her mother.
H was aged 15. He said that he did not wish to see his father. His father was violent to him, his siblings and his mother, and he would do things that would deliberately hurt them. He spoke of his father punching and kicking him and his brothers on occasions. He said his father appeared to favour J and, as such, J did not experience as much violence as the others. He said his father’s moods were completely unpredictable, and he could not predict what would make his father angry or violent. He had a close relationship with his mother and though his mother would not stop him spending time with his father, he did not want to do so.
J was aged 13 years. He said he did not wish to see his father. He said his father would push, punch, hit, belt and yell at him, his siblings and his mother almost every day. His father would call his siblings and his mother derogatory names and call them “losers.” He doesn’t feel close with his father because of his violent and verbally abusive behaviour and does not want to be around him. He would feel unsafe if he had to spend time with his father, and although his mother would let him see his father, he does not want to. He has a close relationship with his mother and siblings.
K was aged 11. He said he was worried about spending time with his father. He became teary. He recounted how his father would often punch, kick and get angry at him and his siblings and became particularly upset when recounting when his father stood on L’s head. His father would say mean things and provided an example that his father would tell H that he had Down Syndrome, that he did not feel safe with his father or wish to spend time with him. He is close to his mother and siblings, and said that his mum would be worried if he spent time with his father.
L was eight. He said he did not wish to see his father. He became upset and said his father was “being really mean” to him and his siblings. L said on the last occasion he saw his father, he was hurting his brother H. He did not want his brother to get hurt, so he came to help his brother. His father pushed him to the ground and stepped on his head. There are other occasions where his father tried to hurt him and his siblings, and he mentioned an occasion when his father tried to whack him and his brothers with G’s “dolphin paddle”. L said he is angry with his father for hurting him and his brothers. He said his father would also say mean things and swear and call J “fat”. He would feel mad if he saw his father. If he were given three wishes, his one wish would be not to see his father any more, and he is close with his mother and siblings. All the children appeared happy and comfortable and well.
This evidence is a clear and compelling corroboration of the wife’s affidavit of 13 February 2020 where she recounts the husband’s violent, coercive and controlling behaviour towards her and the children throughout their relationship.
It is also confirmation of the wife’s case at paragraph 47 of her trial affidavit that she was the children’s full-time carer and the father was not a particularly involved father.
The wife describes how he treated the children at paragraphs 112-163 of her trial affidavit, saying he would strap the children when they were little, say denigrating things to the children such as “no man would ever want to marry you”, that he locked the children in the home. The wife refers to what is H’s experience of his father at paragraph 128, recounting the father would say to him “Come on, H, have a go”, and encourage H to fight him.
H complained his dad poked him. In 2014, and at paragraph 131 of the wife’s affidavit of 13 February 2020, the wife asserts “...[the father] attacked and pushed H to the ground…put [a cricket stump] to H’s neck yelling and screaming at him ‘you are a fucking smart arse cunt’…‘you think you’re pretty hot shit, don’t you H.”
The wife deposes at paragraph 130 that in December 2013 she was having a meal with friends, when the children called her and said:
“Dad’s hitting everyone. He has punched us all. H has been dragged and punched and he has locked himself in the bathroom. Please come home.”
At paragraph 134 of the wife’s affidavit she recalls the father saying to H, “You are nothing”, and “you are a dumb cunt.” That the father called him “ugly” and that he had “no friends.”
At paragraph 145 the wife attests that the husband placed a pillow over J’s neck in April 2013 and this caused him difficulty with breathing. Further, that J’s school is concerned about his behaviour.
That K told his mother he was worried about his father trying to get him. That although L was a young child, his father would smack him and that in 2015, as set out in the wife’s affidavit of 13 February 2020 at paragraph 159, the father grabbed him by the arm and repeatedly hit him whilst screaming at L, “You are a little smart arse.” K was seven at the time.
The wife provided details of the husband’s treatment and behaviour towards her during the marriage at paragraph 164 of her affidavit of 13 February 2020 including throwing plates at her, calling her ugly, saying to her “You are nothing,” “You are fat,” “You are a fuck wit,” “Where are you going today. Are you seeing your boyfriend?” Speaking to the children and saying “Your mother is a has been,” “Your mother is a bitch,” “I hate your mother,” “She does nothing,” “Look at the shit your mother has cooked us again tonight.”
The wife described in graphic detail the father standing over her while she cooked and complaining about the meal she was cooking.
The wife says at paragraph 174 that when she had cancer, he did not bring the children to see her in hospital and nor did he care for the children particularly well.
The wife was diagnosed with cancer in 2015 which was a very difficult time for the entire family. The wife commenced chemotherapy in February 2016 and this lasted until May 2016. The children were extremely upset believing understandably their mother may die. I saw no indication from the husband that he understood this trauma for his children.
The wife asserts that the husband would lose his temper at little things such as the TV not working, dinner not being ready when he arrived home, or if the children did not retrieve something for him when he asked and that his fit of temper would lead him to hit the children.
The incident at separation is particularly graphic.
At paragraph 160 of her affidavit the wife says on 29 January 2016, the husband assaulted her and the children. There is no doubt the father behaved in a disgraceful fashion at separation, and I accept that this was a mirror of how he behaved during the relationship at times.
The husband had H in a headlock and was punching his head. H was attempting to protect his mother and got caught in the crossfire. The youngest child L went to save his brother, most concerned that his big brother was being beaten up by his father and, in that altercation, L was knocked to the ground and his father stomped on his head. G rang the police. All the children and the mother were crying and screaming, the husband was throwing things at his former wife screaming and yelling at her and at the children, all the while having H in a headlock and punching his head.
His behaviour at separation could not have been a one off situation and I find that this was his usual conduct perpetrated against his family during the relationship when he became overwhelmed or things were not going his way.
His behaviour at separation is consistent with the children’s description of their father’s frightening and violent behaviour and poor treatment of them during the marriage and it mirrors the wife’s evidence as well.
It is clear the husband perpetrated significant violence towards his family during the relationship, including his wife, and exerted coercion and control over them by the use of his violence. This method of dealing with his family culminated in a most concerning incident involving the mother and all the children at separation. There is ample reason why the children do not want to see their father, yet he has not even taken the first step to acknowledge for them the consequences of his behaviour towards them during the relationship, and to lay blame at the feet of the children is but him obfuscating his responsibility for this sad state of affairs.
In light of this behaviour, the father’s attitude and the violence perpetrated by him upon his children, the presumption of equal shared parental responsibility is rebutted in accordance with the Family Law Act 1975 (Cth) section 61DA(2) and the mother’s sole parental responsibility will extend to obtaining passports for the children and the children leaving the Commonwealth of Australia in the absence of consent or otherwise of the father on any occasion she deems appropriate. I will not ask the mother to deal with the father in relation to any aspect of the children’s care given the violence perpetrated against her and the children during the relationship.

Further, I will make orders the mother seeks to ensure the father cannot access information about the children’s progress at school to afford them the maximum security I can into the future and ensure their school is a place of safety for them.
The wife seeks to change the children’s names, and she sets out her reasons in her affidavit of 31 July 2020 as follows.
The male children, J, K and L, all have the middle and surname of “[the father]”. G, who is now 21 and H, 19, have changed their names to G Dolan and H Dolan. Thus, the older children have, of their own volition, changed their name to the mother’s maiden name.
The wife says the younger three children are desirous of changing their surname similarly to be “Dolan” and reflect their mother’s surname and be consistent with the surname of their older siblings. The boys are all desirous of removing the father’s first name from their name as well as changing their surname from “Bennett” to “Dolan”.
It is apparent from the material I have read including the wife’s affidavits of 13 February 2020 and 31 July 2020, that the children’s schools have been very supportive of them.
The wife has been called to the school on many occasions, and the children have become upset when their name has been called out at roll call, as must happen at a school. The children were traumatised by, first, witnessing their father’s behaviour throughout the relationship, at that appalling incident at separation and having to go through two sets of court proceedings when the husband defended all the charges.
The wife says the children are traumatised, embarrassed and ashamed of their father and wish to have no association with his name. The wife says at paragraph 48 of her affidavit of 31 July 2020 that “the worst thing for them [is that] he is not sorry for what he has done.” The children are correct, the husband is not sorry. He denies all allegations, and denies that he has done anything wrong and keeps trying to clear his name, despite his clear convictions.
The wife has had emails from the children’s school relating to their sadness at having the same name as their father. Exhibit 22 of the mother’s affidavit filed 31 July 2020 is an email K had written to his counsellor at The QQ Centre, asking if they would contact the school about his name. He explained his name was not a true representation of who he is.
L’s house master sent an email to the mother on 3 June 2020, exhibit 23 to the wife’s affidavit, saying that they had had a meeting with L where he was visibly upset by his last name Bennett. That he does not want a name that has nothing to do with him, hates the name, is scared to go to Suburb T, and he wants to change it from Bennett to Dolan. The school said they were concerned about the emotional effect this was having on L at that time in June 2020. L was upset on June 11, 2020 and the Assistant Head of House, as outlined in paragraph 53 of the mother’s affidavit of 31 July 2020, said to the wife:
L has spoken to us a couple of times now about feeling upset about his surname and middle name.
I feel that it might be beneficial for him to see the counsellors here at school to develop some more strategies to use when he is upset when he sees his name on the roll or it is called out at class.
Similarly with K, the mother has received emails from his Head of House, saying that K is struggling regarding his middle name and surname, and it is affecting his wellbeing. J, now aged 17, has told his mother he will change his name when he is 18, like his older sister and brother.
I have formed the view it is in these children’s best interests that they eradicate from their names their father’s names, given the damage he has caused them and the violence he has perpetrated upon them. The children need to close this chapter in their lives and this is one practical way of assisting them to do so.
Thus I will grant the mother’s application in relation to parenting orders she seeks in their totality.

Property

This now leaves the vexed issue of property and it is particularly vexed given the wife’s confusing, erroneous and at times misleading evidence.

The joint balance sheet marked court exhibit 2

Ownership		Description		Wife’s Value	Husband’s Value
ASSETS
1	W	B Street, Suburb C		$3,900,000	$3,900,000
2	W	NAB Bank Account No. …72		No longer exists
3	J	Westpac Bank Account No. …06 (closed)		Nil	Nil
4	J	Westpac Bank Account No. …83 (closed)		Nil	Nil
5	H	Travel Money Card		Not known	Nil – closed
6	W	Motor Vehicle 1		$27,000	$35,000
7	H	Motor Vehicle 2		$18,000	$10,000
8	W	NAB Account …36		$78	$77.81
9	W	Household Contents		$8,000 (E)	$30,000
10	H	Household Contents		$20,000 (E)	$2,000
11
12	H	Jewellery (Designer watches)		$20,000	$7,000
13	J	Motor Vehicle 3 (Driven by daughter and son)		$7,000	$10,000
14	W	Designer watches		$7,000	$30,000
Total		$4,007,078	$4,024,077.81
LIABILITIES
17	J	Two (2) CBA Mortgages secured over B Street, Suburb C		$1,378,433	$1,347,077
18
19	W	Loan from Mr V		$257,000	$0
20	W	Loan from Mr M (paid via Ms Z)		$172,597	$0
21	W	Loan from Mr M		$181,323	$0
22	J	Loan from Mr M		$250,000	$0
23	W	Westpac Visa Credit Card		$33,000	$0
24	W	American Express Credit Card		$22,000	$0
25	W	Loan from Ms JJ		$29,000 + $250,000 $279,000	$0
26	W	Loan from Ms LL		$39,000	$0
27	W	Company MM		$33,138	$0
28	W	NAB Acc No. …27		$5,296	$0
29	W	Company NN		$4,079	$0
30	J	D School, Suburb C		$53,775	$0
31	W	Tutoring for G		$2,909	$0
32	W	Suburb P Council		$5,883	$0
33	W	Dettman Longworth Lawyers (solicitor Mr Damien Phair)		$358,116	$0
34	H	RR Bank for – Motor Vehicle 2		NIL – no disclosure	$11,800
Total		$3,035,549	$1,358,877
Interim property settlement funds received
35	W	TBC
36	H	TBC
SUPERANNUATION
Member		Name of Fund	Type of Interest	Wife/de facto partner’s value	Husband/de facto partner’s value
37	W	Super Fund 1 30/6/2019	Accumulation	$5,067	$5,067
38	H	Super Fund 2 as at 30/06/18	Accumulation	$170,000 (E) (need current value)	$148,000
Total		$175,067	$148,000
FINANCIAL RESOURCES
39
40
Total
Net assets excluding superannuation				$971,529
Net assets including superannuation				$2,813,200.81

Before I can determine the matrimonial pool for division I must assess the parties’ evidence as the balance sheet contains many debts which the husband asserts are not joint debts but the wife’s debts and was deficient in many respects.

Overview of the parties’ evidence and issues for Trial

I found the husband was a far more accurate historian of factual matters concerning property than was the wife.
The wife was a wealthy woman when the parties met in 1999. The wife owned outright a two bedroom beachfront unit at DD Street, Suburb EE, a X Group franchise at S Street, Suburb O, and commercial premises at S Street, Suburb O. There was a mortgage on the property of about $250,000. The wife also owned a European motor vehicle, had about $150,000 in savings, chattels of $25,000 and superannuation of about $20,000.
The husband had a more modest asset base.
The parties purchased 4 U Street, Suburb T in April 2001 for $1,100,000. They sold the property for $2.8 million in June 2013, paying back the $248,000 mortgage, netting them somewhere in the vicinity of $2.6 million. I am unclear how the proceeds of sale of this property were dispersed by the parties other than I accept an earlier debt of $250,000 in respect of the husband’s business was discharged from this sale. How the remainder of the net sale proceeds were disbursed is unknown.
The wife says that, in January 2002, she and the husband purchased 6 U Street, Suburb T for $2,500,000 as follows. The wife paid the deposit of $250,000 and stamp duty of $123,000 from her savings and $850,000 from the sale of her unit at DD Street, Suburb EE, a total of $1,223,000 from effectively her pre-relationship resources. The balance of $1,277,000 was borrowed by way of a mortgage.
Although I accept the parties had been in a relationship for three years at the time of the purchase of the 6 U Street, Suburb T property, the first matrimonial home where the children lived, this is an exceptional contribution by the wife from her pre-cohabitation assets to the acquisition of a property post the marriage.
In September 1999 the parties, in the husband’s name, purchased a property at TT Street, Suburb EE for $255,000. It was 100 per cent financed, and they sold that property for $535,000 in May 2005, making a healthy profit, however capital gains tax may have also been paid on this sale.
In 2000 the parties, in the husband’s name, purchased the property at AA Street, Suburb BB for $525,000, and that property was sold in April 2006 for approximately $1 million, again making a healthy profit understandably as both the husband and wife were experienced in that area. Capital gains tax may have also been paid on this sale.
This is a net profit of perhaps $800,000 over both properties. I am unclear as to the actual profit as I do not know the balance of the mortgages when sold, purchase and sales costs, stamp duty at purchase, capital gains tax paid or where or how the profits were dispersed.
The wife asserts she was given the X Group franchise in June 1993 and sold the franchise in 2008 for about $100,000. The customer list which she had created during the period she operated the franchise was sold for $391,438 in September 2008. At this point in time the parties had been in a relationship for nine years and the husband would have made a contribution to these valuable assets.
It was at this time, in 2008, that the wife ceased to work independently given the parties had five children. G was born in … 2000, H was born in 2001, J in 2003, K in 2005 and L in 2008. There were five children and seven people to support and the wife was not working independently and assisted the husband in his business and has not worked independently since 2008.
It is also the time the wife says they borrowed $350,000 from her brother at an interest rate of 12.9 per cent.
The wife said that the $491,438 she realised from the sale of her X Group franchise paid out the commercial mortgage on the property at S Street, Suburb O, which was then about $280,000, an increase of $30,000 since 1999, and the remainder of the money was used to pay bills and general living expenses of the parties.
This evidence is consistent with the husband’s evidence that, by about 2008, the parties were experiencing some financial difficulty. The mortgage on her commercial premises had increased and the parties had spent nearly $200,000 in bills and the like. I accept those bills would have included capital gains tax on the sale. However although the wife’s evidence is consistent with the husband’s evidence in that they were experiencing some financial difficulty at this time, they still had significant property in their name in 2008 being 6 U Street, 4 U Street, Suburb T and S Street. There were at least two children at private school by this date. These facts do not sit neatly with her assertion that the parties also needed $350,000 from her brother.
The commercial premises at S Street, Suburb O were sold by the wife for about $920,000 in September 2015 whilst the Suburb C property was being constructed. There was a small mortgage of $8,000 at that time owing on those premises consistent with the wife’s evidence of paying down the mortgage when she sold the customer list and X Group franchise in September 2008.
The wife asserts she paid from those proceeds of sale in-advance school fees of $313,000, repaid her brother $574,000 being interest and principal of the $350,000 2008 loan, and $20,000 for landscaping for the Suburb C property. From wife’s exhibit 5, total landscaping for the Suburb C property was $134,002. No doubt capital gains tax was also paid however this is a figure that is unknown.
I have seen no evidence from the wife or husband concerning the substantial capital gains tax they would have paid on the sale of their various investment properties as follows.
The sale of the wife’s property at S Street, Suburb O, where she netted $920,000, 4 U Street Suburb T where she netted $2.6 million, the X Group franchise and customer list where she netted $491,438 or capital gains tax on the sale of the two properties in the husband’s name in 2005 and 2006. This is a total of $4 million on which capital gains tax would have been assessed in the wife’s hands and $1 million in the husband’s hands.
Nor do I know the cost of purchasing these properties, including stamp duty and conveyancing costs, nor the sale costs other than the sale of 6 U Street, Suburb T and purchase of the Suburb C property. I have assumed there was no agent’s commission involved in any of these sales.
6 U Street, Suburb T was sold in November 2014 for $4.2 million. I am unclear what the then mortgage was on that property although the husband asserts it was $1.2 million and the wife appeared to concede this point in cross-examination. The wife asserted it was $1,277, 000 at purchase in 2002, some 12 years earlier, and the husband says it was $1,565,000 at purchase.
The wife says monies from the sale of 6 U Street, Suburb T was used to complete the purchase of the property at B Street, Suburb C in August 2014, contracts having been exchanged on a five per cent deposit of $70,000 with money provided by her brother and this is an agreed fact. It is agreed that the Suburb C property was purchased for $1.685 million in the wife’s name in August 2014 with settlement occurring in November 2014.
Consistent with the husband’s position and the evidence before the Court at the commencement of the hearing, it initially appeared that the nett proceeds of sale of 6 U Street, Suburb T were some $3 million, a sum more than sufficient to pay for the Suburb C property at $1.685 million and stamp duty at $79,000, a total of $1,764,000. As 6 U Street was their home, there was no capital gains tax payable.
Thus it was the husband’s case that the parties had $3.19 million in the bank in late 2014, early 2015, after selling 6 U Street, Suburb T and prior to settling the purchase of the Suburb C property in early 2015 and did not need funds from her brother or to use the drawdown facility of $1.25 million from the Commonwealth Bank of Australia.
Although the wife initially agreed with the husband’s position of having $3.19 million in the bank before settling the purchase of the Suburb C property, this answer cannot be reconciled with the wife’s evidence during the trial and wife’s exhibit 9.
It is impossible to ascertain from reading the wife’s affidavit what cash the parties had available to them to fund the building of the Suburb C property after settlement of its purchase and I have had to undertake a tracing exercise to resolve this vexed issue as best I can on the available evidence.
Wife’s exhibit 9 sets out costs on the sale of 6 U Street and purchase of the Suburb C property, hitherto undisclosed costs, and is the only document where similar costs that would have also been incurred in other purchases and sales are quantified.
From wife’s exhibit 9, the total costs on the sale of 6 U Street and purchase of the Suburb C property paid by the parties was $3,990,161.42. This figure included the purchase price of Suburb C and stamp duty at $1,764,000, arrears of council rates for 6 U Street of $10,000, solicitor’s costs of $11,000 and $235,000 paid to her brother together with other amounts required such as council rates for the Suburb C property. A sum of $2,039,324 was paid to the Commonwealth Bank of Australia totalling $3,990,161. Additionally, in her oral evidence, the wife agreed that commission on the sale of 6 U Street was $42,000 and that solicitor’s costs were actually $21,000, resulting in total costs of $4,042,161. Deducting these costs from the sale price of $4.2 million gave the parties a net position of cash of $158,000 rounded up to construct the home.
The wife did not disclose in her affidavit material that she had paid her brother $235,000 upon the sale of 6 U Street, Suburb T. The husband had been hitherto unaware of this debt. Further, $2,039,324 was paid to the Commonwealth Bank of Australia for a mortgage of only $1.2 million over 6 U Street, Suburb T. The answer to this conundrum was only revealed under cross-examination. These are at least two reasons why the husband’s perfectly understandable view of the parties’ financial position when they purchased the Suburb C property espoused at the commencement of the trial was ultimately flawed. This startling evidence was only revealed in cross-examination which will be later referred to.
Wife’s exhibit 2 asserts her brother repaid her the $235,000 paid to him from the sale of 6 U Street in 4 tranches from 8 September 2014 to 24 December 2014 and that the parties were therefore not out of pocket. That cannot be correct either as the settlement of the sale of 6 U Street, Suburb T did not occur until November 2014. This confusion will be dealt with later.
There are several alleged loans to the wife’s brother taken out during the relationship which have not been properly explained by the wife and her brother was not on affidavit.
It became clear after hearing all the evidence that Mr Bennett’s position that the parties lived beyond their means and were using capital to fund their lifestyle may be the only explanation for the extraordinary expenditure of money unless I find the wife has “hidden” money as he asserts she has.
The wife’s affidavit is silent on many important points and her oral evidence was far from compelling.
Today, the wife’s position is that although the home is worth $3.9 million, after deducting all the debts agreed and debts not agreed that are in her name, there would not be $2 million in capital.
It was a difficulty for the husband and the Court to understand where the parties’ capital had gone.
I accept the wife and husband paid capital gains tax on many sales of their various properties but no one has informed me what this figure might be. I could estimate it may have approached $1 million over the years however I do not know.
I accept the wife and husband paid stamp duty on many sales of their various properties but no one has informed me what this figure might be. I could estimate it may have approached $500,000 over the years however I do not know.
I accept the wife and husband paid private school fees over the years but I have not been given even an approximation of what this might amount to over 18 years. There was a period when all five children were attending private schools. $313,000 was paid in advance in 2015 but for how many years, I do not know.

Accepted facts

I accept the wife expended the proceeds of sale of S Street, Suburb O sold in September 2015 netting her $920,000 as follows:
a)Paid her brother $574,000;
b)Pre-paid school fees of $313,000; and
c)Paid for the landscaping of the Suburb C property of $20,000.
Whether I accept this expenditure was required is a matter I will later determine.
I accept the parties purchased the Suburb C property for $1.685 million together with stamp duty of $79,000, a total of $1,764,000.
I accept the parties built the former matrimonial home at Suburb C. I am yet to determine whether the cost of that construction was $800,000 as asserted by the husband or $1.2 million as asserted by the wife.
I accept that the parties dipped into their capital to fund their lifestyles during the relationship as it is clear the wife and husband, and later E Pty Ltd, alone did not earn sufficient income to support a family of seven with five children commencing private schools. The husband made this concession readily and arrears of Council rates of $10,000 when 6 U Street, Suburb T was sold in 2014 support this reality.

It is agreed that the wife drew down $1.25 million when the home was being constructed and her brother paid $250,000 into their mortgage in 2015, a figure the husband accepts. The husband disputes the necessity for the drawdown or loan of $250,000 from her brother.
I have set out the evidence I accept or that is agreed, revealing the gaping holes in the evidence.

Wife’s evidence

The wife’s evidence under cross-examination did not match up with her evidence in her affidavit. A Judge always leaves room for variation and omission as this is a usual human frailty however variance and gaps in the wife’s oral evidence and affidavit evidence were profound at times.
The wife said in her oral evidence under cross-examination that she had an account with the CC Bank, created in 2012. This account had not been mentioned in her affidavit and was only disclosed under cross-examination and in her exhibit 2, a proof of evidence document. That she had an overdraft/loan secured over S Street, Suburb O which she had used to purchase the property. When she sold S Street, Suburb O in September 2015 she repaid that overdraft of some $668,000. This evidence of an overdraft, its value and its repayment was not set out in her affidavit of 13 February 2020 and is inconsistent with paragraph 28 where she sets out her disbursement of the net funds received from the sale of S Street, Suburb O which was:
a)School Fees in Advance: $313,000;
b)Repayment of loan to wife’s brother: $574,000;
c)Landscaping for the Suburb C property: $20,000.
In her affidavit she said she paid to her brother $574,000 from the sale of S Street, Suburb O. In explanation of this payment to her brother set out at paragraph 28 of her affidavit, she said she had borrowed money from him for E Pty Ltd in 2008 and was paying him back. This evidence was inconsistent with her earlier oral evidence and paragraph 29 of her affidavit.
Mr Cairns asked the wife:
You made a reference to the CC Bank account?
[THE WIFE]: Yes
[COUNSEL FOR THE HUSBAND]: It was operating at least in 2012?
[THE WIFE]: It was established in 2012.
The wife provided a list of transactions of money going through that account at the time. The wife had taken out a loan with the CC Bank to purchase the property at S Street, Suburb O. Rental income from the premises went into that account.
Mr Cairns asked the wife:
Ma’am, you say this - this account was really used to purchase the property [S Street] and then you received rent [into it] and made repayments; that was the extent of it, is that right?
[THE WIFE]: No.
[COUNSEL FOR THE HUSBAND]: What else was it used for?
[THE WIFE]: The loan wasn’t for a purchase of a property.
[COUNSEL FOR THE HUSBAND]: What was the loan for?
[THE WIFE]: That was for E Pty Ltd.
[COUNSEL FOR THE HUSBAND]: What do you mean by that?
[THE WIFE]: It was a loan for the company.
[COUNSEL FOR THE HUSBAND]: Did your husband have any knowledge of you having this account?
[THE WIFE]: He organised the loan. I’ve produced tender documents in my affidavit as evidence.
The Court was not taken to these documents.
At paragraph 29 of her affidavit, the wife said she borrowed $250,000 against the S Street property and applied these funds to E Pty Ltd to allow the business to continue and that this loan was paid out on settlement of the sale of 4 U Street, Suburb T in June 2013. One wonders why the loan she asserts she has had with her brother since 2008 of $350,000 incurring interest at 12.9%, a loan she asserts was also used to prop up E Pty Ltd, was not also paid out from this sale.
At paragraph 33 of her affidavit the wife says in relation to the sale of 4 U Street:
…this property was purchased in April 2001…[for] $1,100,000 and the total amount was secured by way of a mortgage to the Commonwealth Bank. The property sold in June 2013 for $2,800,000. From the settlement funds received from the sale of the property, the loan for $250,000 was paid back.
The wife does not disclose in her material what she did with the $2.5 million netted from the sale although I accept she would have paid capital gains tax and incurred costs on the sale. Again, one wonders why the loan she asserts she has had with her brother since 2008 of $350,000 incurring interest at 12.9%, a loan she asserts was used to prop up E Pty Ltd, was not also paid out from this sale.
I accept the parties borrowed money during the relationship to enable E Pty Ltd to continue to operate. However on how many occasions this occurred, the source of funds and repayment of funds is perplexing and the wife’s affidavit and oral evidence did not assist in unravelling these transactions, rather added to the confusion.
The wife’s affidavit evidence was that the loan for E Pty Ltd came from an overdraft secured over to S Street, Suburb O, which was also the source of the 5 per cent deposit for the Suburb C property and was her day-to-day transaction account. Yet in her oral evidence the wife said she borrowed the 5 per cent deposit of $70,000 from her brother and this was agreed by the husband and that this repaid when 6 U Street, Suburb T was sold. Again, a glaring inconsistency.
To support her paying her brother $574,000 from the sale of S Street in September 2015 for the loan of $350,000 taken out in 2008 the wife relied on her exhibit 3.
The exhibit consists of four separate sheets of paper dated 15 October 2008, 15 October 2010, 15 October 2012 and 15 October 2014.
The letter of 15 October 2008 states:
This is to confirm that Mr M has loaned $350,000 to Ms Bennett at the interest rate of 12.9% and repayment of this loan is due and payable upon the settlement of S Street, Suburb O if not before.
The letter is signed by the wife, her brother and witnessed by Ms YY.
The remaining three letters state:
This is confirm the loan of 15^th October 2008 for the amount of $350,000 at the interest rate of 12.9% between Mr M and Ms Bennett.
This is to reconfirm that the loan is still due and payable on the settlement of S Street, Suburb O if not before.
These three letters are also signed by the wife, her brother and witnessed by Ms YY.
The grammatical error in the letter of 15 October 2010 is repeated in the remaining three letters wherein the word “to” is omitted from the first line of the first sentence after the word “is.”
None of the letters are dated by the persons allegedly signing and witnessing the document.
When pressed on this loan and other alleged loans to her brother, the wife said “I owed Mr M money from 2008.” This statement is difficult to reconcile with their financial position in having liquidated more than $5 million worth of property by 2011 and in the absence of her brother being called. I accept the husband knew nothing of this loan or the interest rate.
It was put to the wife that she drew down substantial monies and was unable to substantiate the reasons why and that she had failed to disclose an overdraft loan for her business of $668,000 secured over S Street, Suburb O in any of her material or documents. Her answer is as follows:
…In relation to the $268,000 [sic] you paid to yourself, or to your corporate identity, what was your intention so far as that was concerned?
[THE WIFE]: The accountant had advised myself and Mr Bennett to pay that loan account out because it was costing $5,500 a month.
[COUNSEL FOR THE HUSBAND]: What loan account are you talking about?
[THE WIFE]: The Ms HH - my identity account.
[COUNSEL FOR THE HUSBAND]: Do you say you had a facility where you had drawn down some $660,000 as business operating expenses?
[THE WIFE]: In 2004 -Yes, that's correct.
Nowhere in her affidavit did the wife set out the Ms HH identity loan (“Ms HH debt”) or account or that there was a facility of some $660,000 as part of the business operating expenses of that identity account.
The wife said in oral evidence she had originally drawn down the full amount of the overdraft, $668,000 secured over her premises at S Street, Suburb O, as she was going to buy another customer list. That she did not buy another customer list however was unable to assist the Court as to what she had done with that money. The wife’s evidence was:
[The $668,000] was…the loan generated to purchase a customer list and the customer list never happened…I thought we applied it to another property…[it] got paid out of the sale of 6 U Street.
There is no mention of this debt in the wife’s affidavit material and all the wife says in her affidavit in relation to debts paid out on the sale of 6 U Street is at paragraph 32b:
I recall that when 6 U Street was sold, we reduced the mortgage facilities attaching to that property to about $3,000 and then we used the redraw available on that mortgage to pay for…[the Suburb C property].
What I have divined is that the Ms HH debt, by then at $668,000, was also paid out upon the sale of U Street, Suburb T and that this debt, together with the then mortgage over 6 U Street, was why $2,039,324 was transferred to the Commonwealth Bank of Australia, as set out in wife’s exhibit 9. The payment of this hitherto undisclosed debt reduced the money available to the parties to fund construction of the home to $158,000.
That this is a correct finding is consistent with the wife being able to disburse the sale proceeds of S Street, Suburb O in September 2015 as she did as the Ms HH debt which she told the Court had been secured over S Street had been extinguished prior to her selling this property.
The startling oral evidence of paying her brother $235,000 from the sale of 6 U Street together with the Ms HH identity debt of $668,000 came as a shock to the husband and the Court. This is $1 million dollars of debt the wife did not explain or refer to in her affidavit.
In relation to the disposition of sale proceeds of 6 U Street, the wife’s affidavit at paragraph 32 says:
The property at 6 U Street Suburb T sold in November 2014 for $4,200,000. The money from the sale of the property was used as follows:
a.To complete the purchase [of] the property at B Street Suburb C in August 2014. We initially exchanged contracts in August 2014 and we paid a 5% deposit of $70,000.
b.The sale proceeds from 6 U Street were also used to complete the purchase of B Street Suburb C. I recall that when 6 U Street was sold, we reduced the mortgage facilities attaching to that property to about $3,000 and we then used the redraw available on that mortgage to pay for the building of the new house at B Street Suburb C.
What the wife should have added to that paragraph was that she paid out the Ms HH identity debt of $668,000 that had been ongoing from at least 2004 when she was an agent, paid her brother $235,000 and disclosed the mortgage on 6 U Street, Suburb T at sale. Fortunately, wife’s exhibit 9 assisted in being able to divine some important payments from the sale of 6 U Street, Suburb T.
Although Mr Cairns was able to elicit from the wife at page 48 of the transcript that upon settlement of the sale of 6 U Street, Suburb T the parties had some $3,193,000 available to them and still owned the property at S Street, Suburb O, this was incorrect as the Ms HH debt and payment to her brother had been deducted from the sale of 6 U Street, Suburb T unbeknownst to the husband, the CC Bank by then having been combined with the Commonwealth Bank of Australia.
The husband’s position was that not only did they have this money, they also owned the Suburb C property outright and thus the parties had more than sufficient funds in cash at the bank to fund the building of this home.
I reject the husband’s evidence that they owned the Suburb C property outright in early 2015, late 2014 and had $3,193,000 in the bank for the following.
There were no documents to support this assertion such as title searches, solicitor’s settlement sheets, bank records etcetera and it is inconsistent with the husband’s evidence, which I accept, that they financially struggled to pay their outgoings and used capital to fund their lifestyle during their marriage. Further, the wife is clear at paragraph 32 of her affidavit that they purchased the Suburb C property from part of the proceeds of sale of 6 U Street, Suburb T and wife’s exhibit 9 supports her position and not his position. His position was completely understandable until the wife’s revelations under cross examination and her tenders such as exhibits 2 and 9.
The husband’s understandable concern and clear position at trial that the parties had sufficient funds to build this home and need not have drawn down any funds came about due to the wife’s failure to disclose and was not due to any failure on his part for the following.
I find that the husband was unaware $668,000 had been paid out of the proceeds of sale of 6 U Street, Suburb T for the wife’s personal overdraft, reducing the funds to build the home, or that her brother was paid $235,000. That he was unaware of the costs of sale and purchase as the wife did not disclose this important information until the hearing.
Further I find that the husband was unaware $350,000 had been borrowed from her brother in 2008.
In relation to the payment to her brother of $235,000 from the sale of 6 U Street, the wife’s evidence confused the situation in my endeavour to reconcile her proof of evidence, exhibit 2, with her affidavit and oral evidence. Wife’s exhibit 2 is as follows:
In reviewing my Affidavit last night and upon reviewing Mr Bennett’s trial Affidavit at paragraph 42 (j) (i) I have located further evidence I wish to adduce and provide an explanation for the funds referred to in this part of the Husband’s Affidavit:
1. In relation to the funds (j)(i) it has come to my attention for the first time since these proceedings have been on foot that I have made a mistake in saying that the funds were borrowed from Mr M.
2. I contacted Mr M and asked to borrow the funds for the deposit for the purchase of B Street, Suburb C. Mr M agreed to lend the funds. However, days later I remembered that there was a re-draw facility with the CC Bank.
3. I then decided to go ahead and use the CC Bank facility instead of loaning the money from Mr M however I did not notify Mr Bennett of this and didn’t really see the need to.
4. I was concerned that Mr Bennett might learn that there was a re-draw facility that could be used in the future for other borrowings when I preferred not to use it.
5. At the time of settlement of 6 U Street I didn’t complicate the situation further by advising Mr Bennett I was using the CC Bank money and instead left it that he thought the debt was to Mr M. Accordingly, when 6 U Street [s]ettled a cheque was drawn payable to Mr M from the proceeds of the settlement. Mr M then banked that cheque and transferred the following amounts to CC Bank account as follows:
a. $10,000 on 8 September 2014;
b. $10,000 on 7 October 2014;
c. $69,300 on 17 December 2014;
d. $144,876 on 24 December 2014.
6. Those funds total $234,176 repaid on the draw down on the CC Bank facility.
7. There was no negative net effect to our matrimonial financial position. I just utilised alternate funding instead of Mr M.
The wife asserts her brother repaid her the $235,000 paid to him from the sale of 6 U Street, Suburb T in four tranches from 8 September 2014 to 24 December 2014. That cannot be correct as the settlement of the sale of 6 U Street, Suburb T did not occur until November 2014, so why did he repay his sister $10,000 in September and $10,000 October in respect of money he had not received? I accept the payments on 17 December 2014 of $69,300 and $144,876 on 24 December 2014 may be a repayment by him of monies transferred but these sums amount to $214,000 repaid by him, not $235,000. There were no bank records produced to support these repayments asserted by the wife.
As the wife’s brother was not on affidavit to explain the many inconsistencies in the wife’s evidence in relation to their financial dealings I do not accept the wife’s confusing evidence and will deal with the consequences of this later.
Given that the parties only had perhaps $158,000 cash at the time of commencing to construct the home I accept the wife was, consistent with her evidence, required to draw down on the overdraft facility over the Suburb C property in order to fund the construction of the home and provide for the family as she had done in the past by using capital.

Cost of the Suburb C property

The next issue is the cost to build and complete the home including landscaping, a pool and the like for it is the wife’s case not only did she draw down $1.25 million over 15 months, she also borrowed a further sum of $250,000 from her brother to pay into the mortgage. The husband agreed that the parties did borrow $250,000 from her brother but again he could not understand at that time or now why this money was needed to be borrowed.
The wife’s case was that the home cost $1.2 million to construct and complete including landscaping, pool, furnishing and like. The wife said the costs were:
a)The cost of construction of the home with Company FF at $850,000;
b)The pool was about $120,000, and landscaping was $150,000 totalling $1.2 million.
Under cross examination it was revealed this was incorrect.
Mr Cairns acting for the husband asked the wife:
We’re at more like $800,000 for the home, building the pool, landscaping, building the house. Would you agree with that?
[THE WIFE]: No
I understand why the husband believed the position he put to the wife was correct as she had failed to provide documentation concerning the build prior to the hearing. The documentation she provided was focused on E Pty Ltd, loans she asserted were given to the company and the husband’s poor financial management. The facts reveal the wife is a poor financial manager who may have endeavoured to conceal from the Court substantial joint funds used to pay off her business expenses such as $668,000 from the sale of 6 U Street, Suburb T.
From a reading of wife’s exhibits 4, 5 and 6 the following is revealed.
Wife’s exhibit 4 is the costs paid to Company FF for the build. It is correct the original contract price was $569,000 rounded up. However, with variations the total build costs came to $645,804.
Wife’s exhibit 5 was a bundle of documents containing invoices for various works carried out to the Suburb C property in addition to the build and wife’s exhibit 6 was a Variation from Company SS dated 9 March 2015 as follows:
a)Wardrobes: $12,500;
b)Blinds: $13,800;
c)Landscape: $134,002;
d)Tiling for pool area: $44,963;
e)Pool costs: $60,412;
f)Excavation for pool: $10,350;
g)Fencing: $5,600;
h)Outside lighting: $2,000;
i)Rendering: $1,500.
Totalling $285,127.
Adding the build costs to these proven extras is a total of $930,931.
There were insufficient funds in the bank to pay all these costs.
In addition, there would have been furniture etcetera for the new home, bedding and other necessary items to furnish this home. Further, the parties were required to rent for in excess of one year and I accept that cost was no less than $75,000 and the husband did not cavil with this sum. The parties also had to fund their lifestyle including, at that time, paying five separate private school fees.
The parties had limited cash funds available to them at this time and they drew down on capital to meet the shortfall.
Further, the parties refunded the wife’s brother $149,000, being the 5 per cent deposit of $70,000, and stamp duty costs of $79,000 he paid on their behalf upon sale of 6 U Street.
Again, doing my best detective work it is not unreasonable that the $158,000 cash and $1.25 million draw down were used to fund the build and the parties’ lifestyle from November 2014 when 6 U Street, Suburb T was sold until moving into the Suburb C property in late January 2016.
The wife became gravely ill during this period with cancer and there may be additional costs of which I have no knowledge in relation to medical bills, care of the children and the like.

The husband’s business licence was cancelled due to the criminal charges in 2019.
There was approximately $150,000 in outstanding ATO debts and other debts for the 2017 year, comprising taxation liabilities, utilities and unpaid accounts. An amount of $75,000 was due to the Tax Office, and a garnishee order was issued against the company.
The husband asserts that from the six months prior to separation in January 2016, the wife took $80,000 from the E Pty Ltd account and put it into her Westpac Visa card. That this was done in circumstances where, on Mr Bennett’s evidence, E Pty Ltd was not earning enough money to support the family.
The wife was not working and E Pty Ltd was the only income-earning asset. It is apparent from the wife’s own evidence and her disposition of vast sums of capital over 15 years that, consistent with the husband’s evidence, the parties drew down on capital to fund their excess of expenditure over income. That they had an excess of expenditure over income is clear and this pattern continues today.
Much money was spent on valuations of E Pty Ltd yet it is now worthless. The husband is in jail and the wife does not want to run the agency. There will no doubt be matters that need to be mopped up following the business effectively ceasing trading but I am unaware of what these might be.
At paragraph 39 of his affidavit of 13 February 2020, Mr Bennett says:
Ms Bennett and I have been living well beyond our means for many years and were unable to meet payment of our expenses from my income alone after Ms Bennett stopped working in her own business. Payment of our living expenses has come from capital and from E Pty Ltd…All five (5) children attended private schools from Kindergarten which was an expense we could not afford.
This was something Mr Bennett said the wife was aware of in 2007 and 2008, a time the wife says she borrowed $350,000 from her brother, and this situation was particularly dire in 2011 and 2012 and the situation continues.
The husband said there should have been a large surplus of funds from the sale of what he says is their properties at 4 U Street and 6 U Street, Suburb T. However the husband’s own evidence is testament to the fact they were living well beyond their means, and the money to support a family of five, with children all at private schools, had to come from somewhere.
I have explained earlier in this judgment the basis of my finding that the wife was required to draw down on the overdraft to build the property at Suburb C. However there were other sums expended by her during the relationship which were not explained such as the disposition of the proceeds of sale of 4 U Street, Suburb T in 2013.
That the parties were in difficult financial circumstances in 2012 was supported by the husband ceasing his golf club membership in that year costing $1,600 per annum. That he had previously taken half a day off during the week each week, but stopped doing that and worked six days a week. That he cancelled his insurance policies for life and income protection in May 2013 which had been costing $2,200 a month. That the family reduced the amount of time they dined at restaurants with the children. That he continued to drive an old car because he couldn’t afford a new one. That he wanted and tried to iron the children’s school clothes, but the wife insisted they be dry cleaned. This evidence is perhaps an explanation in part of expenditure of significant funds received during the relationship, for example $2.3 million from the sale of 4 U Street in 2013. However cross-examination of the wife’s spending of money during the relationship did not clarify the situation particularly and I am unclear as to this expenditure.
I made an order on 27 September 2019 that when the wife took over E Pty Ltd she was to account to the husband monthly for income received and expenses paid. The wife failed to do that. This was a very poor decision by her.
Mr Bennett confirmed he had last lodged a tax return in maybe 2017, and he could not afford to lodge any in 2020. I note he is currently incarcerated and will not be released for a significant period of time.
He said he last obtained a benefit from E Pty Ltd in September 2019 and that the wife has misappropriated $24,873 from the E Pty Ltd accounts being the difference between what Mr Bennett said was reasonable for her to expend and what was not reasonable for her to expend.
Mr Bennett says at paragraph 25 of his affidavit of 1 September 2020 that the balance of the business account when the wife took over in September 2019 was $125,605.64, and that Ms Bennett has failed to disclose her expenditure of $24,166.00 of this money.
The husband says at paragraph 53 of his affidavit of 1 September 2020:
Ms Bennett has received a huge amount of child support[,] $108,000…
$108,000 is not a huge amount of child support for five children in four years. It amounts to $27,000 per annum or $5,400 per year per child. It is now the sixth year since separation and little child support has been paid or will be paid into the future.
Mr Bennett disputes the wife’s sale of his wine collection valued at $9,000 to friends for $7,000. There are two points: the first is it was also the wife’s wine collection and the wife did sell the wine and has accounted to him for that sale. Given the small amount of child support being paid and the cost of the children, it is no wonder that this money was used by her in support of the family and payment on outgoings of the property.
In 2012, the wife obtained a mortgage of $250,000, secured against her property at S Street, Suburb O and put that into E Pty Ltd. I accept this evidence as I accept her evidence that she used $668,000, being a business overdraft in her retailing identity of Ms HH, to fund the parties’ lifestyle. These two events are consistent with the husband’s evidence that the parties experienced financial difficulties during their relationship. However she had received $2.3 million in June 2013 from the sale of 4 U Street, Suburb T and it is surprising that, for example, the Ms HH debt or debt to her brother was not paid by her at this time.
When S Street was sold in September 2015 the wife paid $313,000 to D School Suburb C for L, H, J and K’s future school fees. A further example of capital being used to fund what might be regarded as day-to-day living expenses, a common feature in the parties’ relationship.
I accept the husband was likely ignorant as to the expenditure by the wife of capital and that, consistent with the wife’s evidence, she ran the family and the family finances.
The wife’s brother, Mr M, was repaid $235,060 when 6 U Street, Suburb T was sold in 2014 and the husband was unaware of this as he was of the wife paying her brother $574,000 in September 2015 from the sale of the property at S Street, Suburb O.
I accept Mr Bennett is struggling to understand this diminution in wealth however those understandable struggles do not mean the wife is hiding money as he asked me to find she was. My only lingering doubt is that the wife did not call her brother, a person who has been involved in the parties’ financial affairs from very early on in the relationship and apparently continuing to the present. I would have given leave to either party to subpoenae him to give evidence had they so requested as it is now apparent to me that his evidence may have been crucial to my understanding of the parties’ financial expenditure given the difficulty I have with the wife’s case at many levels.
I accept the husband’s position that the wife’s expenditure of their capital, upon an in-depth analysis, was excessive and that they clearly lived well beyond their means, using their capital to make up the shortfall. There would have been anywhere of up to $125,000 per annum being spent on the children’s school fees when all five children were attending private schools, perhaps more, together with other costs associated with their schooling such as uniforms, excursions etcetera. This is post-tax expenditure and this occurred for 11 years during the relationship and this is no doubt a part of the explanation of where the parties’ capital has been spent.
It was fairly clear during the evidence that the husband had very little to do with the children during the marriage, despite his attempts to tell me otherwise. The wife did the bookwork for E Pty Ltd and cared for five children, a significant contribution by her, as well as her having been seized of a significant portion of the assets which were ultimately sold and put towards this home, now worth $3.9 million, together with funding the parties’ lifestyle and maintenance of the children. The wife’s direct financial contribution at the commencement of the relationship to the parties’ current asset base is significant and overwhelming to that of the husband.
The husband was cross-examined by Mr Breeze.
Mr Breeze put to the husband there was an inconsistency in his affidavit filed 13 February 2020 at paragraph 162(b) as to the value of his interest in a WW Group business at the commencement of cohabitation with his oral evidence. The husband had asserted the value of his interest in the WW Group business was $185,000 and Mr Breeze submitted this was erroneous.
Mr Breeze read the husband’s affidavit to state that the husband was asserting he had a 49 per cent interest in an agency which had a value of $185,000. Mr Breeze incorrectly read the husband’s affidavit. The husband did not assert his interest was 49 per cent of $185,000, rather 49 per cent of a value approaching $400,000. I find there was no inconsistency in his oral evidence and in his affidavit evidence and that Mr Breeze misunderstood his affidavit. This interest did not provide any funds to the parties other than his income earnt.
The husband says in relation to the children attending private schools, “I disagreed to the children attending the school.” The reality is they did attend private schools and it is a simple as that. It is clear that the mother paid for their private school fees and was instrumental in liaising with the school and in the education of the children. The husband’s own evidence of working six days a week would not have permitted him to be a party to this. The mother paid for their education out of capital, which is apparent on the facts. It is a fundamental part of the explanation for the significant diminishing of their capital during the relationship The children have attended private schools since 2005 and each couple of years or so another child was added to the list of children for which the wife was paying school fees.
At the time the wife moved into the Suburb C property, the mortgage was about $1.25 million, and I now accept the wife’s evidence that $1.25 million went into the construction and completion of the home and funding the family’s needs during and post the construction period.
Although I said to the wife during the trial “Even if the home and fit-out cost $1 million, on my calculation there’s $1.2 million I can’t account for” I was in error at this juncture as no one but the wife knew she had paid from the sale of 6 U Street, Suburb T $668,000 in reduction of the Ms HH debt and $235,000 to her brother, making up the $1 million or so I was unable to account for.
The wife would not accept that the husband had supported the family by leaving her in the home and by accepting as a matrimonial debt the current mortgage of $1,378,433.
The husband was also disingenuous in his evidence that whilst the wife ran the business in 2019 he did not have access to the accounts. He was still the principal of the business and maintained his access, and I do not accept his evidence that he could not access money in the account, check the accounts or find out what the wife was doing with the accounts. If he chose not to do that, that was a matter for him.
The husband asserted he did not check the trust accounts when he was still the principal of the firm and sought to sheet home blame to the wife for any irregularities. I asked the husband:
You’re the one asserting that in some way your wife has improperly used money. You have to prove it to me, because am I right to say that once you had all these children – and it’s a lot of children...E Pty Ltd’s income supported the family?
[THE HUSBAND]: Well…it couldn’t support it all.
HER HONOUR: There had to be other funds that the moneys that [the wife] got when she sold properties, but in terms of ongoing money coming in day-to-day, it was E Pty Ltd. Is that fair?
[THE HUSBAND]: Yes
I said to Mr Bennett:
…E Pty Ltd paid the day-to-day expenses for the family, as best it could is from the customer list?
Mr Bennett answered:
The best it could is a better word to say.
Clearly capital was used by the wife to make up the significant shortfall of income over expenditure for this family.
They were in financial trouble in 2007 and 2008, 2011 and 2014. The wife did borrow monies against properties in her name and clearly did not discuss this with the husband. Thus when properties were sold, less was received than the husband may have expected due to these undisclosed debts. This practice would have engendered significant distrust in the husband of the wife however he perhaps should look to his own behaviour and conduct for an explanation of why this occurred.
In relation to the customer list I have determined that the wife did diminish the sale price by $90,000. Any tax from that must be shared equally between them.
In relation to the running of E Pty Ltd by the wife, I accept she did not do the right thing in that she did not provide to the husband the monthly accounts. However, there is only a sum of $24,000 ultimately in dispute, and I will take that into account in my decision as I will the husband’s evidence that the wife removed $80,000 from E Pty Ltd prior to separation.

Determining the pool for division

Assets

The Suburb C property is worth $3.9 million and is agreed.
The wife’s Motor Vehicle 1 is worth $27,000.
I accept the husband sold his Motor Vehicle 2 and received $5,000.
Household contents for the wife is $8,000 and $2,000 for the husband.
The parties each have a designer watch and I will not include these assets in the pool as the wife says they are worth $7,000 in her possession and $20,000 in the husband’s possession. The husband says they are worth $30,000 in the wife’s possession and $7,000 in his. I have no evidence from either party.
The parties purchased a Motor Vehicle 3 that is driven by the parties’ children, and is used for the benefit of the children. I find that it is worth $7,000 but will not include that item in the pool for division as it is used by the children.
This is an asset pool for division of $3,942,000.

Liabilities

The liabilities are significant.
I find that the following are matrimonial debts.
Two mortgages are secured over B Street, Suburb C totalling $1,378,433.
The loan to Ms JJ, the wife’s aunt, of $250,000 and Mr V at $257,000 is a double up for the following reasons.
The Mr V debt came about as the wife was unable to comply with Justice Stevenson’s orders of 15 June 2016 and February 2017 and in order to comply with the orders, the wife borrowed $300,000 from Mr V on 5 April 2017, reduced to $257,000 immediately due to excessive interest, and her aunt paying out that loan later in the amount of $250,000. The parties each received an interim property distribution from those funds and I will have regard to the initial loan of $257,000 as a matrimonial debt. Thus the wife will be responsible for paying this loan to her aunt.
The other debts asserted by the wife which I regard as a matrimonial debt is the Suburb P Council rates at $5,883 and water rates at $4,079 given the husband asserts an interest in the property.
These are total matrimonial debts of $1,645,395. Deducting these debts from the pool of $3,942,000 is a net available asset pool of $2,296,605.

The Mr M loans asserted as joint loans by the wife and remaining debts

The joint loan of $250,000 from the wife’s brother is supported by a signed a loan document taken out in 2015 by the parties. However I have determined her brother has been repaid this money by her overpayment to him in 2015 when she re-paid him $574,000 from the sale of her premises at S Street, Suburb O. This is not a matrimonial debt and if the wife now owes her brother any money they are her debts and not matrimonial debts.
The wife’s Westpac Visa card at $33,000 and American Express card at $22,000 are at best a contribution by her to the home and family as is the loan of $181,323 to her brother and are the wife’s debts although I accept she has used this money in support of the family.
The asserted loan of $172,597 or $157,597, the Ms Z loan, is a separate category. I found this was not a loan but the parties’ money retained by the wife post-separation and is a relevant consideration in my deliberations.
All other loans that the wife has pleaded being to her friend Ms LL, Company MM for gas and electricity, school fees, tutoring for the child, her own legal fees, at lines 22 to 24 and 26 to 28 and 30, 31 and 33 are the wife’s debts. Again these personal loans were no doubt used by the wife towards the conservation and maintenance of the former matrimonial home and the children in the absence of the husband so doing.
These are matrimonial debts of $1,645,395 resulting in a net available pool of assets over debt of $2,296,605.
The parties each had distributions of property from the Mr V debt and sale of the E Pty Ltd customer list.
In relation to the Mr V money:
a)$195,000 of this money was paid to the wife’s solicitors trust account on 31 March 2017;
b)The husband received $55,000 on 31 March 2017, $6,500 on 6 June 2017, $1,000 on 28 June 2017, totalling $62,500;
c)A total of $257,500.
The parties sold the E Pty Ltd customer list for $200,000 on 20 December 2019 and received the following:
a)The wife $67,000;
b)Arrears of child support, a figure I am unaware of;
c)The husband, $75,000.
The balance, a figure I am unaware of, was to be used towards tax on this sale and no doubt has now been expended.
I have determined to add the Mr V loan back to the pool as there is a specific loan that attaches to that debt which the wife will be responsible for and this loan has been included in the matrimonial debts. However I will not do so with the customer list. I will take those monies into account in my determination of the entitlement of each party to their property. However to add the customer list money back is to merely further artificially inflate the pool for division as this money has now been spent.
There is no doubt, consistent with the husband’s evidence at trial, that the level of personal debt the wife finds herself in today, in excess of $700,000, supports his position that the parties have lived above their means for many years.
The husband asserts that his wife should have known that from about 2008 to 2009, the parties were in financial difficulty. The husband says at paragraph 40 of his affidavit of 13 February 2020:
Ms Bennett has been aware since approximately 2007/2008 and more seriously since 2011/2012 that our financial situation was deteriorating with costs escalating and that E Pty Ltd was not making as much money as it had previously.

The Law

It is just and equitable and appropriate having regard to the principles enunciated in Stanford v Stanford (2012) 247 CLR 108 and Bevan & Bevan (2014) FLC 93-572 that I embark upon a division of the parties’ property pursuant to section 79 of the Family Law Act 1975 (Cth) (“the Act”).
Following the well-known principles enunciated in Ferraro & Ferraro (1993) FLC 92-335, Pierce & Pierce (1999) FLC 92-844 and Coghlan & Coghlan (2005) FLC 93-220, I must engage in a four stage approach which is to:
a)Identify the matrimonial pool and its value;
b)Assess the parties’ contribution based entitlement expressed as a percentage for their past contribution to their property both directly of a financial nature, indirectly by energy, effort and/or third party contribution and as parent and homemaker;
c)Determine whether there ought to be a further adjustment to either party’s contribution based entitlement for their past contributions having regard to their future needs;
d)Look back at the orders proposed to be made and determine if they result in a just and equitable division of the parties’ assets.

In this matter the Full Court decision of Kennon v Kennon (1997) FLC 92-757 is highly relevant to the facts in my determination. In that decision the Full Court determined that where there is a course of violent conduct during the marriage which is demonstrated to have had a significant impact upon that party’s contribution to the marriage, this is a factor which the trial Judge is entitled to take into account in assessing the parties’ respective contributions under section 79 of the Act.
As Justice Baker opined in that decision at 84,329:
The incidence of domestic violence in a marriage would generally be a relevant factor when a court comes to assess contributions…for the reason that the contributions made by a party who has suffered domestic violence at the hands of the other party may be all the more onerous because of that violence and therefore attract additional weight.
The orders I propose to make acknowledge each parties’ contribution to their assets during the marriage having regard to the matters under sections 79 and 75(2) of the Act and the impact upon the wife’s contribution to the marriage and its assets having regard to the domestic violence, coercion and control perpetrated by the husband against her and upon the children.

The parties’ contribution based entitlement

The wife has made the overwhelming financial contribution to this relationship initially and throughout the marriage by the sale of valuable property she owned at the commencement of the relationship to fund or secure the purchase of other valuable property and/or to support the family. The wife has also made the overwhelming contribution as parent and homemaker.
Mr Bennett said it himself, he did very little with the children. The wife did the books for his business and cared for the children, both during the relationship and solely post-separation.
The husband’s violence and conduct towards his children and his wife made her role as a parent and a homemaker far more arduous than it need be.
I assess the wife’s contribution based entitlement for her past contributions being direct financial contributions, contributions as parent and homemaker and solely since separation in the most difficult of circumstances, given the husbands behaviour, at 70 per cent.
In relation to her future needs, her contribution to the children post‑separation will continue to be overwhelming. The wife will not receive child support into the future, she has a serious health issue and is recovering still from cancer, and the husband’s conduct towards the children has made her parenting role more arduous as the children have suffered psychologically from their father’s violence. The wife for the next six years will solely financially, emotionally and psychologically support the children and I find an adjustment to her for these factors to be 25 per cent giving her an entitlement to property of 95 per cent.
The following matters must also be taken into consideration in assessing the husband’s contribution based entitlement.
Each are to pay the tax payable by them on the sale of the E Pty Ltd customer list, a figure that was not made known to me. That is a joint liability.
In relation to the $24,000 that the wife retained from E Pty Ltd not accounted for, that is money she would have used for the support of the children and I will not add that back to the matrimonial pool but regard it as a contribution by the husband to the family.
As I have included as a matrimonial debt the Mr V loan, I must add back the money the parties received from this loan being $195,000 to the wife and $62,500 to the husband.
Further, although there is a discrepancy in money each received from the sale of the customer list favouring the wife, I will not further adjust the parties’ entitlement or artificially inflate the pool for division as the money has been spent. The one thing I am certain of is that the wife used her entitlement to these monies post-separation to support the children at the level the parties had supported them during the marriage and the husband used his share to pay his criminal legal fees.
The following matters must also be taken into consideration in the husbands case pursuant section 75(2) including under 75(2)(o) of the Act as follows.
The current mortgage is $128,000 greater than it was at separation. I accept the wife has drawn down on this mortgage to maintain the children and that the husband has contributed to the support of the children by accepting as a matrimonial debt the current mortgage.
Given the poor state of the wife’s evidence and the following difficulties with her evidence I find as follows:
a)I have found that the $172,597 or $157,597 the wife asserts came from her brother via Ms Z was their money and was used for the support of the children, being a contribution by them each to the family;
b)That the parties could have received $90,000 more for the sale of the E Pty Ltd customer list than they did and that the wife was responsible for this deficit;
c)The payment to the wife’s brother of $235,000 in late 2014 and the wife’s failure to satisfy me that this money was re-paid;
d)A contribution of $24,000 by the husband to the family being money received by her from E Pty Ltd in 2019 and not accounted for by the wife;
e)The $80,000 removed by the wife from E Pty Ltd prior to or at separation, paid into her credit card and used for the support of the family is a contribution by the husband and wife to the welfare of their family; and
f)That the wife received a greater proportion of the customer list proceeds than the husband.
In light of these findings and contributions by the husband to the support of his family I will adjust the husband’s contribution based entitlement by 15 per cent, giving him an entitlement to 20 per cent of the pool, thus reducing the wife’s entitlement from 95 per cent to 80 per cent of the pool.
20 per cent of the pool is $459,321 to the husband.
The husband is seized of the proceeds of sale of the Motor Vehicle 2 at $5,000, his contents of $2,000 and the interim property distribution of $62,500, a total of $69,500. Deducting this sum from his entitlement is an amount to him of $389,821. The husband will retain his superannuation of $170,299 and I note his superannuation is 40 times greater than the wife’s. The wife is effectively without superannuation.
If the wife seeks to retain the home she is to pay the husband $389,821, otherwise the home will be sold.
I find these orders are just and equitable in all circumstances.

I certify that the preceding three hundred and seventy-three (373) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Henderson delivered on 21 April 2021.

Associate:

Date: 21 April 2021

[2021] FamCA 182

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