Brandow & Brandow - [2010] FMCAfam 1026

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BRANDOW & BRANDOW

[2010] FMCAfam 1026

FAMILY LAW – Property – discussion of cases dealing with short marriages.

Family Law Act 1975, s.75(2)

Douglas & Douglas (2006) FLC 93-300
GBT & BJT [2005] FamCA 683
Goodwin& Goodwin Alpe (1991) FLC 92-192
Kennon & Kennon (1997) FLC 92-757
Lane v Wharton [2010] FamCA 18
P & P [2002] FamCA 1006
W & W (Full Court, unreported, 28 January 1997)

Applicant:

MR BRANDOW

Respondent:

MS BRANDOW

File Number:

CAC 1188 of 2009

Judgment of:

Brewster FM

Hearing date:

30 July 2010

Delivered at:

Canberra

Delivered on:

24 September 2010

REPRESENTATION

Counsel for the Applicant:

Mr Dwyer

Solicitors for the Applicant:

Elrington Boardman Allport

Counsel for the Respondent:

Ms Godtschalk

Solicitors for the Respondent:

Nicholl & Co

ORDERS

That within 60 days the husband pay to the wife the sum of $185,500 by way of property settlement and $400 by way of costs.
That upon payment of this sum
(a)The wife is to transfer to the husband her interest in the property situated at Property M NSW.
(b)Any beneficial interest the wife may have in the property situated at Property R NSW is extinguished.
That if the husband is unable or unwilling to pay the amount referred to in Order 1 the husband is to satisfy the costs order by the due date and the parties are to take all steps to sell the property situated at

Property M and to divide the net proceeds between them such that, having regard to the findings in my judgment the wife receive 15 % of those monies.
That as against the other each party is entitled to the chattels in his or her possession and the choses in action in his or her name.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
Canberra

CAC 1188 of 2009

MR BRANDOW

Applicant

And

MS BRANDOW

Respondent

REASONS FOR JUDGMENT

Introduction

This matter involves a dispute between the parties as to property division.

Background

The husband is aged 61 and the wife 50. The wife is of Filippino origin and came to Australia in 1999. The parties commenced to live together in May 2000. In September 2001 the wife returned to the Philippines to obtain a spouse visa to permit her to become a permanent resident of Australia. The husband travelled there in September 2002 and the parties were married [in] 2002. The husband returned to Australia on 5 October 2002. The wife returned to Australia in April 2003 and the parties lived together until their final separation on 12 December 2008. There are no children of the marriage.

The parties’ applications

The husband seeks an order which would split the parties’ property, including superannuation, 90% / 10% in his favour. The wife seeks an order which would split that property 80% / 20% in the husband’s favour.

Discussion

The Full Court of the Family Court of Australia has indicated that a four stage process is to be followed in property division cases. The first stage involves making a finding as to the pool of property. The second stage involves a consideration of various contributions made by or on behalf of the parties. If appropriate an adjustment may be made in the parties’ property interests on this basis. The third stage, for the purposes of this case, involves a consideration of such matters as set out in section 75(2) of the Family Law Act as may be relevant. The final stage involves something of a “wood from the trees” exercise in that it involves looking at the overall result derived from any adjustments made under the second and third stages to determine if, overall, that result is just and equitable.

The pool

The parties are the joint proprietors of a property situated at

Property M, New South Wales. This is valued at $510,000.
The husband is the proprietor of a property at Property R, New South Wales. It is valued at $407,500.
Each party has a car. The wife’s is valued at $11,700 and the husband’s at $5,400.
The husband has savings with a Credit Union of $83,018.
The husband has superannuation to a value of $319,170. The wife has superannuation in three schemes totalling $4,265.
This makes a total pool of $1,341,053.

Contributions

When the parties commenced to live together in May 2000 the husband was the owner of three properties. They were all later sold. These were:
a)A property at [V].
b)A property at 1, [O].
c)A property at 2 [O].
In December 2001 the husband bought Property R for $49,500. At that stage it was a vacant block of land and a house was later constructed on it. He says that the monies for this purchase came from the remaining proceeds of sale of a property he owned at [C] which had earlier been sold. The [V] property was purchased with the proceeds of sale of the [C] property and it appears that there were monies left over which the husband applied to buying the block at Property R. The position is complicated by the fact that in his affidavit he stated that the block was bought in 1999 or 2000 but it later emerged that it was in fact bought in December 2001. Ultimately however I accept that the Property R block should, in effect, be treated as property brought by the husband into the relationship.
The sale of the [V] property realised $390,000. An amount of $350,000 was applied to buy the Property M property unencumbered. The proceeds of one of the [O] properties was paid into a superannuation fund. It appears that $360,000 was paid into that fund. The proceeds of sale of the other [O] property were applied towards building a house on the Property R block.
In 2008 the husband withdrew $21,300 from his superannuation fund and used the proceeds to purchase the motor vehicle presently in the possession of the wife.
Thus can be seen that apart from the husband’s motor vehicle which is a 2002 model the whole of the present property is referrable to initial contribution by the husband. I infer that his motor vehicle is also in part funded from a trade-in of a vehicle he owned at the date the parties commenced to live together.
The parties both worked until 2008 when they left the Canberra area and moved to the Property R House. The husband claims that the wife used the entirety of her income for her own purposes and in particular gambled away significant sums of money. He says that he at her request advanced her monies which she used for gambling. Furthermore he maintains that she did absolutely no work around the house.
The wife denies that she did not apply her income to family purposes and denies that she did no work around the house. On the contrary she maintains the reverse position insofar as non-financial contributions are concerned, that is that the husband did no work around the house.
In the end I am unable to be satisfied that either party’s version is correct and I decline to make any adjustment based on contributions during the relationship.
There is no basis for making any adjustment by reason of post-separation contributions. The wife’s counsel pointed out that the husband had had the benefit of his superannuation and that he draws an income from this source and submits that this should be taken into account. I assume that this would be taken into account under the rubric of post-separation contributions. I am not at all convinced that it is relevant and in any event the wife has occupied the Property M property since the parties separated and so has also had the use of the parties’ property.
In all the parties lived together for seven years. Counsel for the husband drew my attention to the case of Lane v Wharton [2010] FamCA 18, a decision of Watts, J. That case involves a pool of about $1,660,000 and the parties lived together from March 2002 until March 2007, a period of 5 years. His Honour discussed a number of cases where the Full Court had dealt with short or reasonably short marriages. His Honour extracted the following percentage contribution based adjustments from the following cases:
a)Kennon & Kennon
(1997) FLC 92-757. A seven year marriage.

A pool of $8,700,000 and a 4.6% contribution based adjustment.
b)W & W (Full Court, unreported, 28 January 1997). A five and a half year marriage. A pool of $2,000,000 and a 5% contribution based adjustment. The Full Court said that the 5% adjustment would have been higher but for the fact that the wife lost about $170,000 post separation in a business venture.
c)P & P [2002] FamCA 1006. A six year marriage. A pool of $10,000,000 and a 5% contribution based division at first instance. The case was remitted for a re-trial by the Full Court because of lack of reasons given for this division. For this reason it is of little value.
d)GBT & BJT [2005] FamCA 683. This was a Full Court decision. It involved a six and a half year period of cohabitation and a $3,000,000 pool. At first instance Strickland J made a 12.5% contributions based adjustment but this was held to be manifestly excessive by the Full Court and re-assessed at 7.5%.
I could add to this list two other Full Court cases which appear at odds with each other. The first is Goodwin& Goodwin Alpe (1991) FLC 92-192. This involved a marriage of four years. The pool comprised property owned by the husband valued at about $3,000,000 and property owned by the wife of about $117,000. All the property was acquired prior to the relationship. The Trial Judge made a contribution based adjustment in favour of the wife of 10% of the husband’s property and she kept all of her property. The Full Court declined to interfere with this. The second case is Douglas & Douglas (2006) FLC 93-300. In that case the parties had lived together for five years. The pool totalled about $3,500,000. The Trial Judge made a contribution based adjustment of 7.5%. The Full Court allowed the husband’s appeal. When it came to re-exercising the discretion the Full Court reduced the trial judge’s 7.5% contribution based adjustment. They gave the wife a total of 8.36% of the asset pool which included an adjustment under section 75(2) of between 2.5 and 3.5%. The precise contribution based adjustment therefore cannot be precisely ascertained but is in the order of 5%. Lest it be thought that overturning the 7.5% adjustment and substituting a 5% adjustment is inappropriate I point out that the appeal was allowed for other reasons as well. Had the only successful ground of appeal been that the 7.5% was manifestly excessive I imagine it would have failed. But had it been 10% one assumes that it would have been regarded as manifestly excessive. As I have indicated it is, in my opinion, impossible, when dealing with pools of comparable sizes, to reconcile regarding a 10% adjustment for a four year marriage as within the range but a 7.5% adjustment for a five year marriage as too high.
I add that Lane & Wharton does not, by reason of its particular and complex facts, provide any guidance in this area.
Kennon and P & P are of little assistance because the pool in each of those cases was very much larger than, and cannot be meaningfully compared to, the pool in the present case. W & W is a comparable case but its value is tempered by the fact that the 5% adjustment made by the Full Court was influenced by the particular facts of that case to which I have referred.
Comparable cases are GBT & BJT, Goodwin and Douglas. They involve contribution based adjustment respectively of about 5%, 7.5% and 10%.
Goodwin is the “odd man out” in that the relationship was shorter than the other two cases and the adjustment greater. I imagine it can be put aside as a sympathetic interpretation of the “generous ambit” that appellate courts (sometimes more in theory than in reality) allow first instance courts. If the other two cases were to be the guide the “going rate” is between 5% and 7.5%. However there is a significant difference between those cases and the present case. In each of these cases the pool was more than twice the value of the pool in the present case. A percentage adjustment should not be seen solely in abstract terms but must also be considered in dollar terms. By this however I do not mean that it should only be looked at in dollar terms but that its value in dollar terms is one of the matters to which one must have regard when fixing the percentage adjustment. In dollar terms a 5% adjustment in a case with a $3,000,000 pool is greater than a 7.5% adjustment in a case with a $1,500,000 pool.
I propose to make a 10% adjustment.
The wife’s affidavit mainly consists of reciting instances where she says the husband was violent towards her. Her counsel sought to justify these on the basis of what is generally known as the Kennon principle. He submitted that I should make an additional contribution based division based on the husband’s alleged violence towards the wife. I struck out those paragraphs of the affidavit. I indicated that I proposed to deliver a judgment in another case in which I opined that the Kennon principle was not good law. This decision has now been delivered and I attach the relevant parts of the judgment which I incorporate into this judgment.

Section 75(2) factors

The extent of any adjustment under section 75(2) is affected by the fact that this would was not a first marriage for either party and they were comparatively old when they got married. In addition it was a comparatively short relationship. Insofar as an adjustment in favour of the wife is concerned, and I propose to make such an adjustment, it is relevant that she is younger than the husband and the marriage does not appear to have affected her earning capacity. She suffers from depression but there is no evidence that this impacts on her capacity to earn income. The only significant factor in her favour, and it is a significant factor, is the disparity in the capital positions of the parties after the contribution based adjustment.
In making an adjustment I need to bear in mind the impact in dollars of an adjustment. The pool is about $1,350,000 and a 10% adjustment would involve about $135,000.
I propose to make a 5% adjustment in favour of the wife. This is the equivalent of about $77,500.

Overview and conclusion

The end result is that the wife is to receive 15% of the pool. This is $201,158. The husband will have $1,139,895. I am satisfied that this is just and equitable. I also point out that the fact that in the result my decision fell mid way between the claim of the husband that the adjustment be confined to 10% and the claim of the wife for 20% is pure coincidence. Perhaps it is illustrative of good judgment on the part of those advising the husband in choosing a position just below the bottom end of the range and those advising the wife in making a claim just above the top end.
The wife has an amount of $15,765 in the form of her car and superannuation. The husband will have to pay her $185,393 which I round off to $185,500.
If the husband is unable or unwilling to borrow enough to pay the wife out one of the properties will have to be sold. I assume that this would be the Property M property and I have ordered accordingly.

Costs

The wife seeks an order for costs in relation to the issue of a subpoena to [S] Credit Union. This is a credit union account in the name of the husband. The wife’s solicitors sought from the husband’s solicitors copies of statements from his account. The request was ignored. As a consequence they had to issue a subpoena to the credit union. This disclosed that the husband had in the credit union account the sum of $83,018. He had not disclosed these monies previously.
I propose to make an order for costs. Given the limited ambit of the area involved it would be inappropriate to seek an itemised Bill of Costs. I propose to allow the sum of $400 and I will provide for this to be added to her share of property.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Brewster FM

Associate:

Date: 8 October 2010

ADDENDUM

Ms Haughton who appeared for the wife submitted that I should make an adjustment in favour of the wife based on the principles set out in Kennon & Kennon (1997) FLC 92-757. Kennon was a case where the husband had been violent to the wife throughout the course of the marriage. The Full Court stated that, if by reason of a course of violent conduct perpetrated by one party to a marriage on another the victim’s contributions were made more arduous, a contribution based adjustment could be made in favour of the victim.
As I have indicated the wife maintains that the husband was violent towards her during the course of the marriage. She says that the husband’s conduct towards her was not confined to physical attacks. In paragraph 43 of her affidavit filed 15 March 2010 she says as follows:
I say that I have endured daily verbal assault from [Mr Palmer]. [Mr Palmer] would often complain about how the vertical blinds were turned in our house. Almost every day he would come home and re-arrange them in a way he felt they should be. He would then say to me “how stupid are you, you can’t even get the blinds right.” It was rare that a day would pass during our marriage that [Mr Palmer] would not call me an offensive name such as “boof-head”, “fucking stupid bitch”, “dumb”, “idiot”, “fat cow tick”, “pig” or swear at me, raise his voice in anger at me or say to me “you have not achieved what I expected of you” and/or “you failed to follow through”. [Mr Palmer] would often say “I wish I had married a more educated woman. Unless you earn at least one hundred thousand dollars a year you do not deserve a seat at the table of life.”
I have always doubted that what I will call the “Kennon” principle is good law. In one case I discussed my reservations as to this issue and declined to extend the principle to apply to only verbal violence. The husband appealed on other issues but unfortunately the wife did not cross appeal my refusal to make an adjustment in her favour by reason of the Kennon principle. If she had I would not have the problem I now face. In other cases I have not had to confront the issue as the degree of violence involved did not bring the principle into play. I believe however that in this case I must do so.
It might be thought that my opinion as to the Kennon principle is academic by reason of the doctrine of stare decisis. As I have indicated Kennon was a decision of the Full Court. However I am not bound by everything that the Full Court might say. I am only bound to apply ratio of the Court. In Kennon the analysis of the Full Court was obita dicta. This is because the trial judge found that the wife’s contributions were not made more arduous by reason of the husband’s violence. In the end result therefore no adjustment was made in her favour by reason of the Kennon principle. However there is dicta and there is dicta. One might, depending on the circumstances, have little hesitation in declining to follow dicta of the Full Court which is in the nature of a “throwaway line”. The discussion in Kennon however was reasoned and detailed. And, if all the judges who have sat on the Full Court over its history were to attend to a dinner with a seating plan based on eminence, the judges who comprised the Court in that case, Fogarty, Lindenmayer and Baker JJ, would be allocated places well above the salt. I appreciate therefore that refusing to follow such a Full Court authority is not a matter to be enterprised lightly or unadvisedly. I appreciate that others might properly and reasonably consider that, when it comes to a reasoned and unanimous decision of the Full Court, dicta or otherwise, a court in the position the Federal Magistrates Court occupies in the judicial hierarchy should follow it. This would appear to be the view taken by Altobelli FM in the decision I refer to in paragraph 99. However, with considerable reservations, that is not a course I propose to take.

The first thing to note is that the Kennon principle is anchored in the area of contributions. It is not based on section 75(2)(o).
The difficulty I have with the Kennon principle as a part of the contribution based division can be illustrated by reference to an anecdote recounted by the great American judge and jurist Oliver Wendell Holmes in his article The Path of the Law (10 Harv, LR Rev. 457 (1897)). In this story a legally unqualified Justice of the Peace in a rural area is hearing a claim for damages brought by a farmer against his neighbour. The farmer lent a churn to the neighbour who returned it in a damaged state. The Justice of the Peace dismissed the claim. He explained that he had searched all the authorities and whilst he could find cases where a neighbour who returned a damaged plough, or a cart, or any number of farm implements was found liable in damages he could find no case where damages were awarded for a broken churn.
The point of this story is that the law is not comprised of a “wilderness of single instances” and legal analysis should involve a much greater level of abstraction than was applied in this case. The question the Justice of the Peace should have asked himself, when being urged to break new ground and extend the liability of a gratuitous bailee to churns, was whether there is any jurisprudential basis for treating a damaged churn differently to a damaged plough. The answer of course is that there is not.
I return to the Kennon principle. Is that principle confined to instances of domestic violence if the violence makes the victim’s contributions more arduous? Or is it an example of a wider principle and akin to a minor premise in a syllogism? If there is a wider principle it would seem to me that it is to the effect that contributions are not necessarily to be measured in absolute terms but may be weighted by reference to the arduousness involved in making those contributions.
I shall now turn to a hypothetical example. Suppose we had a marriage where the wife was a white collar worker and the husband a coal miner and that each earned the same amount. For the purposes of this example I will assume that the husband worked in the type of mine, and was at the coalface doing the type of work, described by George Orwell in The Road to Wigan Pier. Is he to be given a contribution based adjustment in his favour by reason of the arduousness involved in his financial contributions?
The first thing to note is that I am unaware of any authority for the proposition that a person in a position of the husband in my hypothetical case could have a contribution based adjustment made in his favour. I raised this with the wife’s counsel who was unable to point me to any such case. I am unaware of any authority, apart from Kennon, and the cases which follow it, for the proposition that contributions are not necessarily to be measured in absolute terms but may be weighted according to the degree of arduousness involved in making those contributions.
Secondly there is no indication in the Act that contributions are to be weighted in this way.
I conclude therefore that there is no legal principle which would justify giving my coal miner husband a contribution based adjustment in his favour. The question now arises whether this hypothetical case involves a churn and Kennon a plough or whether there is a properly based jurisprudential distinction to be drawn between Kennon and my hypothetical case.
It seems to me that there are three bases on which I could distinguish my hypothetical coal miner case from Kennon. The first concerns the nature of the arduousness involved in each case. The arduousness in Kennon was not of the same nature as the arduousness in the coal miner’s case. In the coal miner’s case it was that the husband’s contributions were made in dirty uncomfortable, oppressive cramped and dangerous conditions and involved arduous physical labour. In the Kennon type case the arduousness is of a more subtle nature. It involves the contributions of the wife being made in circumstances where she would be always fearful and apprehensive. It might involve taking extra steps or precautions in the way that she performs her homemaking or parenting tasks. As example is found in this case. The wife describes in her affidavit an occasion where the husband was watching television while she prepared an evening meal. She says that the husband became angry because of the noise she was making in doing so and reacted violently.
This appears to me to be the most cogent reason for distinguishing the coal miner’s case from Kennon. The term “arduous” can have two meanings. The first is something that is difficult or requiring great exertion. The second can mean hard to endure, full of hardships, such as an arduous voyage. The life of a victim of domestic violence may be arduous in the second sense but not the first. However I am still unable to find any sound jurisprudential reason for making this distinction. And in any event my coal miner’s case fits both definitions of arduousness in that his work involved great exertion and also working in oppressive conditions. I cannot find any jurisprudential basis for distinguishing between the nature of the arduousness. To my way of thinking one is a plough and the other is a churn.
The second basis is that the arduousness involved in a Kennon type case is arduousness caused by the other party whereas the arduousness in my coal miner’s case is a simple fact associated with his employment. Again I cannot see any proper jurisprudential basis which would justify treating these in a different way.
The third basis is that the contributions in question in the hypothetical case were financial contributions and those in Kennon non financial contributions. I can see no logical difference.
It seems to me that one could only justify a Kennon adjustment if the fact that the husband’s violent conduct having made the wife’s non financial contributions more onerous her contributions are to be treated as having some special feature about them.
The concept of “special” or “outstanding” contributions is no stranger to section 79 jurisprudence. In some cases in the past courts have made a contribution based adjustment in favour of an entrepreneurial husband whose skills have brought great wealth to the family. These have been referred to as “big money cases.” In JEL and DDF (2001) FLC 93-075 at paragraph 128 the Full Court in dicta posited the possibility that non financial contributions could in some circumstances be in this category. The Court in that case at paragraph 136 also referred to Kennon as an example of contributions being given additional weight by reason of being special contributions However it is fair to say that, insofar as financial contributions are concerned, the tide appears to be running out in this respect and that the era of special contributions may well be at an end. This process appears to have been started by the House of Lords in White v White [2001] 1 All ER 1. The speeches of the Law Lords in that case were discussed and endorsed by the Full Court of the Family Court of Australia in Figgins and Figgins (2002) FLC 93-122. Encouraged by this case the English Court of Appeal in Lambert v Lambert [2002] EWCA Civ 1685 effectively put an end, in England at any rate, to the concept of special financial contributions. I think it likely that this case will be followed next time a big money case comes before the Full Court. In any event given what fell from the Full Court in Figgins I do not believe that I am required to follow the earlier cases and even if I were I am not required to expand the ratio in those cases, which concerned special financial contributions, to non financial contributions impacted upon by violence by reason of the dicta in JEL and DFF. What is sauce for the goose is sauce for the gander and if special financial contributions do not lead to an adjustment in favour of a husband then special non-financial contributions resulting from a husband’s violent behaviour making a wife’s non financial contributions more onerous should not lead to a contribution based adjustment in favour of the wife.[1]
[1] This is briefly mentioned, but not discussed in any detail, by Chisholm J in a 1994 article (which was referred to by the court in Kennon) Matrimonial Property Reform: Current Proposals and Issues. His comments were, of course, made before White and the other cases and he accepted the concept of outstanding contributions.
A question might also be asked how special is special? At what point does a high income earning husband’s financial contributions cancel out the battered wife’s special contributions. If the big money cases are any guide he would have to have made a fortune of some millions to have his contributions classified as special. This however does not appear to be the position of the trial judge in the case of S and S which I discuss in paragraphs 97 and 98 but I will not dilate on this further. The problems Kennon raises, to my mind at any rate, should by now I trust be apparent.
An interesting illustration of where the Kennon principle can lead is found in the decision of Coleman J in Cuneo & Cuneo and Cuneo [2006] FamCA 158. In that case his Honour made a Kennon adjustment by reason of the husband’s violent conduct but tempered the extent of the adjustment by reason of the fact that the husband’s violent propensities were a consequence of a war related psychological condition. In a discussion at paragraphs 259 to 267 his Honour described the conduct of the husband as “involuntary” or “largely involuntary” and “external to and beyond (his) control.” His Honour does not appear to be using the term “voluntary” in the sense that it is used in criminal law and his approach seems to me to open up issues of free will verses determinism that I am not qualified to discuss. The case also illustrates the plough verses churn aspects of the Kennon principle. As an example in some cases (a short marriage with no children is a typical example) the parties’ financial contributions will be a decisive factor. So in a case where the wife’s having a steady job as compared to the husband’s erratic employment history resulted in her making greater financial contributions she would expect an adjustment in her favour. Suppose the husband’s inability to hold down a job was a result of his irascible temperament and inability to fit into the workplace. I would have thought that this would be considered irrelevant. But suppose the husband’s temperament was a result of a war related psychological condition (or a brain injury or a difficult upbringing). Is this to be taken into account? Not in my experience.
Is the Kennon principle confined to case of domestic violence or does it extend to other forms of conduct? At page 84,294 in their joint judgment Fogarty and Lindenmayer JJ said
In the above formulation we have referred only to domestic violence……..but its application is not limited to this.
When considering this comment it might be useful to bear in mind the English case of Le Brogue v Le Brogue [1964] 3 All ER 464. In that case the wife petitioned for divorce on the ground of cruelty. It will be recalled that under the Australian Matrimonial Causes Act1959 cruelty was a ground for divorce and this reflected the English law. The conduct of the husband relied upon by the wife was that he was extremely taciturn or non confrontational and, whenever she wanted to “pick a bone” with him, he would simply shrug his shoulders and walk away. She became so frustrated by this conduct that she developed an ulcer. At first instance the trial judge granted a decree on the basis of cruelty. This was reversed by the Court of Appeal but the technical issue of whether such conduct can be classified as “cruelty” within the meaning of the then legislation is irrelevant to the present discussion. Suffice to say that it was the conduct of the husband that caused the wife to develop an ulcer and this may well have made her performance of her domestic duties more arduous. I daresay no one would contend in a similar case today that a husband should have his share of the property pool reduced by his unwillingness to engage in arguments with his wife. But the case may be relevant when contemplating the implications involved in expanding the Kennon principle to arduousness caused by conduct of the other party other than violence. But to confine it to physical violence raises the plough and churn problem.
It would seem to me to make more sense, if violence is to brought into account in the contribution based division, to reduce the weight to be given to the contributions of the perpetrator rather than to increase the weight to be given to the victim’s contributions.* In a hypothetical case where both parties earned comparable incomes and there was a violent husband it does not seem to me to be unreasonable to make a contribution based division in favour of the wife on the basis that the positive contributions made by the husband to the welfare of the family were cancelled out by the negative contribution to the welfare of the family caused by his violence. The wife would have an adjustment made in her favour because she made equal financial contributions and greater non financial contributions. But this would involve reviving the concept of negative contributions which has been disapproved by the Full Court.
* This is also touched on by Chisholm J in the article referred to in paragraph 88.
It needs to be noted however that such an approach would have a practical impact in only a limited number of cases. In the present case for all practical purposes the husband was the sole breadwinner. I would not have made a contribution based adjustment in favour of the wife even if he did nothing around the house and the wife had therefore made all the non financial contributions. To do so would be to quantatively compare financial and non financial contributions. This is impossible, or at least undesirable. The difficulties that would be caused by taking such an approach are easily illustrated. In this case the husband’s income is about $130,000 a year. Suppose I made a contribution based adjustment in favour of the wife on the basis of the husband having made no non financial contribution. This would be because I considered that her role as the sole homemaker and parent to be more significant that the husband’s role as sole breadwinner. But what would I do in an identical case where the husband’s income was $230,000 a year? There is a way in which financial and non financial contributions can be measured and compared but I suspect that in this case it would not be to the advantage of the wife. It was done, in my time in practice, to quantify a Griffith v Kerkemeyer* claim. It was to look at the rates organisations such as Dial-An-Angel charge for their services.
* (1977) 139 CLR 161.
In summary for the reasons that I have explained I am not bound by the dicta of the Court in Kennon and for the reasons I have given I decline to follow it. I believe that contributions are to be measured in absolute terms and not weighted by considerations of arduousness, whether caused by domestic violence or otherwise.
Before I leave this aspect of the case there are two matters I should address.
The first is that Kennon has been the subject of a subsequent decision of the Full Court in S & S [2003] FamCA 905. At paragraph 40 the Court said that “There is no doubt that domestic violence may be a relevant factor in assessing contribution.”
At first glance this emphatic statement might seem to put the issue beyond doubt. It made me pause to think. However it needs to be looked at in context. In that case the trial judge made a Kennon based adjustment in favour of the wife (although in the result this was cancelled out by post separation contributions by the husband. An illustration of the problems I have referred to earlier). The husband appealed. He did not contend that Kennon was bad law but contended that the evidence was insufficient to bring that principle into operation. The Full Court agreed and allowed the appeal. It can be seen therefore that the passage I have quoted is dicta, and moreover dicta concerning an issue not argued before the Court. Whilst I would not put it in the “throwaway line” category it is clearly a statement which is not binding on me.
The second is the decision of Altobelli FM in Kozovska and Kozovski [2009] FMCAfam 1014. In that case his Honour made a contribution based adjustment in favour of the wife under the Kennon principle. I am fortified in rejecting that principle by some comments made by his Honour in the course of his judgment. At paragraph 77 he said as follows:
Assessing the extent that the more arduous contribution should be reflected in the property settlement is difficult, and rather arbitrary. Counsel for the wife submitted it should be 10%. I accept this figure as being appropriate under the circumstances of this case, but, quite frankly, if I had been asked to assess contribution at a higher figure, I would have. My real concern, however, is as to the artificiality of a “Kennon” type adjustment, whatever the percentage is. Having regard to the nature of the violence suffered by the wife during a long marriage it is clear that neither 10% or any other figure could possibly be characterised as compensatory because no amount should compensate her for what she experienced at the hands of the husband. On a property pool of about $1,300,000, 10% is $130,000, an amount which almost offends one’s sense of justice and equity having regard to the findings I have made. Clearly the adjustment that the Full Court contemplated in its decision in Kennon was not meant to be compensatory, but more in the nature of perhaps symbolic recognition of the extraordinary efforts of one’s spouse in persisting with contributions in the face of enormous and unjustified adversity. One cannot help but think that much greater thought needs to be given to the very rationale of a Kennon type adjustment, and whether there might be a better, more transparent, and fairer method for dealing with issues of conduct in the course of financial matters in the Family Law Courts.
I respectfully agree with all that his Honour has said. Further, in my opinion if domestic violence is to be taken into account in the section 79 exercise it is for the legislature, not the judiciary, to take the lead. To import issues of domestic violence into the section 79 issue is in reality an exercise in public policy.