Brangus and Brangus

[2010] FamCA 117

FAMILY COURT OF AUSTRALIA

BRANGUS & BRANGUS [2010] FamCA 117

FAMILY LAW – PROPERTY SETTLEMENT

APPLICANT: Mr Brangus

RESPONDENT: Ms Brangus

FILE NUMBER: PAC 3957 of 2007

DATE DELIVERED: 5 February 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 4 & 5 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Jackson

SOLICITOR FOR THE APPLICANT: Fay Rose Legal

COUNSEL FOR THE RESPONDENT: Mr Sansom

SOLICITOR FOR THE RESPONDENT: Watts McCray

Orders

1. That the wife pay to the husband, within 3 (three) calendar months of the date of these orders, the sum of $107,650.

2. That, simultaneously with and upon payment by the wife to the husband of the sum of $107,650, both parties shall do all things and execute all documents required to effect the transfer to the wife of the whole of the husband’s right title to and interest in the former matrimonial home situate at and known as PH in the State of New South Wales (‘the PH property’).

3. That the wife indemnify the husband and keep him indemnified against all liability of whatever kind arising in respect of the mortgage on the PH property.

4. That, simultaneously with such payment and transfer, the wife shall return to the husband all items of jewellery which he purchased for her and which are currently in her possession.

5. That, in the event that the wife fails to pay the sum of $107,650 to the husband in accordance with order 1:

   5.1the parties shall forthwith do all things and execute all documents required to effect the sale of the PH property, for the best price reasonably obtainable, and the division of the proceeds of the sale as follows:

   5.1.1in payment of agents commission and expenses incidental to the sale

   5.1.2in payment of legal costs and disbursements incidental to the sale

   5.1.3in payment of all monies required to discharge the mortgage on the title to the property

   5.1.4in payment to the wife of an amount equal to 74% of the balance then remaining

   5.1.5in payment of the balance to the husband

6. That, upon receipt of the sum of $107,650 or his share of the proceeds of sale of the PH property, the husband shall pay to the Catholic Education Office of half of the judgment debt arising due to unpaid school fees.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 3957 of 2007

MR BRANGUS

Applicant

And

MS BRANGUS

Respondent

REASONS FOR JUDGMENT

the proceedings  

1. These proceedings concern settlement of property between the applicant husband, Mr Brangus, and the respondent wife, Mrs Brangus. The wife also sought orders for lump sum child support but she abandoned this application at the end of the trial.

2. The proceedings commenced in the Federal Magistrates Court and, on 4 May 2006, Ryan FM (as her Honour then was) made parenting and property orders.  The husband appealed against the parenting orders and the wife cross-appealed against the orders for settlement of property. 

3. On 17 May 2007 the Full Court dismissed the husband’s appeal and allowed the wife’s cross-appeal.  The proceedings were then remitted to the Federal Magistrates Court for re-hearing.  Ultimately, the proceedings were transferred to this court and the hearing commenced before me in November 2008. 

4. Part-way through the cross-examination of the husband, his lawyer sought and was granted leave to withdraw due to ethical considerations.  There was some delay while the husband secured new legal representation.  The hearing was completed on 5 November 2009, when I reserved judgment.

5. Counsel who appeared on 4 and 5 November 2009 reached an agreement as to an expedient way in which to complete the proceedings.  The terms of this agreement were set out in exhibit 4, which read:

   (1)It was and remains agreed between counsel appearing for the parties that;

   I.the court is to read and accept into evidence the reasons for judgment of FM Ryan (as her Honour was then) delivered 4 May 2006, up to and including paragraph 88 thereof;

   II.the parties accept the factual findings and conclusions contained in those paragraphs save as to:  -

   (i)any findings touching upon the allegation of the husband having failed to disclose an alleged interest in property in the Lebanon;  and

   (ii)the husband is at liberty to maintain an argument as to the characterisation of the receipt by the wife of certain workers compensation benefits and contend that the contributions should thereby reduced by 2%; and

   (iii)the value of and constitution of the parties’ balance sheet (para 62 of the judgment) save that there is agreement as to the inclusion of funds notionally added back of $10,125 to the husband.”

Background

1. The following background material is largely extracted from the judgment of Ryan FM, in light of the agreement between counsel.  Having regard to the contents of exhibit 4, however, I will make my own findings as to whether the husband has an undisclosed interest in property in Lebanon and as to the value and construction of the balance sheet.  I will also reach my own conclusions in relation to the wife’s lump sum and weekly payments of workers compensation.

2. The husband was born in 1956 in Lebanon and migrated to Australia in August 1983, at the age of 27.  The wife was born in 1954 in Lebanon and came to Australia, at the age of 22, in 1977.

3. The husband finished school at 14 years of age and worked as a labourer, bricklayer and concreter in Lebanon until he left for Australia in 1983.  He claimed that he brought with him the equivalent of about $20,000 in cash savings. He also alleged that he purchased jewellery for the wife. She agreed that he did so and indicated that she was prepared to return the jewellery to him.

4. There was no independent evidence that the husband had cash savings of $20,000, or any other amount, when he came to Australia.  I share in the conclusion of Ryan FM that there was insufficient evidence to enable a finding that the husband had any cash savings at the date of the marriage.

5. When the wife arrived in Australia she obtained full time employment, which continued until she returned to Lebanon for eight months in 1982.  During this trip she met the husband and the parties became engaged. The wife returned to Sydney and the husband migrated to Australia approximately one month before the parties’ marriage in September 1983. 

6. On the wife’s return to Australia she found full time employment as a domestic.  She stopped work shortly before the birth of the parties’ first child, M in 1984.  She took about four to five months’ maternity leave and returned to work in approximately September/October 1984.

7. After the marriage the parties lived in a home at M, which was owned jointly by the wife and her brother.  On 7 August 1984 the wife sold her interest in this property to her sister-in-law for $12,000. 

8. Late in 1983 the husband began employment with BB Company, which continued until he was made redundant on 18 October 1986.  He probably received a lump sum termination payment of $1,800.

9. After the husband’s redundancy he received unemployment benefits and worked casually for one to two days per week.  His last paid employment was in August 2003. 

10. The wife suffered an injury one day after she returned to work in late 1984.  On 9 November 1988 the Compensation Court made a determination of her entitlement as follows: 

    (i)$155.00 per week from 6 September 1986 to 31 March 1987

    (ii)$159.00 per week from 1 April 1987 until 30 September 1987

    (iii)$163.50 per week from 1 October 1987 until 31 March 1988

    (iv)$165.70 per week from 1 April 1988 until 30 September 1988

    (v)$169.30 per week from 1 October 1988.

11. The wife’s weekly payments ceased on 5 September 1986.  Shortly after the determination of the Compensation Court, she received a capitalised sum of $17,303 for the period from 6 September 1986 until 9 November 1988.  On 16 June 1992 she received a workers compensation redemption payment of $27,338.

12. The parties have five children: 

    M born in 1984 (25)

    S born in 1986 (23)

    F born in 1989 (20)

    T born in January 1992 (18)

    C born in December 1992 (17).

13. In 1985 the parties purchased jointly the former matrimonial home at PH, for $45,500.  The settlement statement (annexure B to the wife’s affidavit sworn on 28 April 2005) establishes that they obtained a mortgage of approximately $40,000 from the Commonwealth Bank.  The balance of the purchase money, plus acquisition costs, probably came from their savings.  Ryan FM concluded that the sum of $12,000, which the wife received for her interest in the M property, was most likely used to make a quick reduction in the mortgage debt.  I agree with this conclusion.

14. In 1995 the parties borrowed $35,000 from the Commonwealth Bank and constructed a new house at the PH property, after demolishing the existing home.  The husband carried out some of the physical building work himself.  They lived frugally and invested a considerable proportion of their available funds in the construction of the new house.

15. The parties separated under one roof in 1997, according to the husband, or in January 2000 on the wife’s version of events.  A difficulty with the wife’s account was that she began to receive Centrelink benefits, as a separated parent, before January 2000.  As Ryan FM noted, however, the actual date of separation is of no real moment because the parties remained under one roof until February 2003 and it is their actual contributions which are of significance.

16. In 2003 the husband was charged with an assault occasioning actual bodily harm upon the wife.  He pleaded not guilty but was convicted after a defended hearing.  On 22 July 2003 an apprehended violence order was made against him for the protection of the wife.

17. On 6 December 2005 the wife received a victim’s compensation payment of $9,250, due to the husband’s assault of her.  He is required to repay this amount to the Victims Compensation Tribunal. 

18. On 22 August 2003 the husband began to receive a Centrelink sickness benefit.  I am satisfied that he left the paid workforce at this time, rather than in 2004 as he inferred in his oral evidence.

19. On 7 December 2003 the husband was assessed to pay $412.67 per month as child support.  Prior to the due date of the first payment, he withdrew $35,000 from his bank account.  Consequently his child support liability was reduced to $9.97 per fortnight.  It was common ground that his current child support liability is $12.76 per fortnight.

20. During 2006 and 2007 the wife borrowed $900 from her sister to replace a washing machine and $980 from a friend to install a hand basin in the bathroom at the former matrimonial home.  She has fully repaid these loans by small instalments. 

21. In February 2007 the wife used her victims compensation money to purchase a 2002 Camry motor vehicle for $12,000.  The parties’ daughter S provided the balance of the purchase price as a gift. 

22. In June/July 2007 the wife borrowed $1,820 from her nephew and a friend to replace the hot water system in the former matrimonial home.  She has since repaid these loans by instalments.

23. There is a judgment debt of approximately $18,130 against the parties, to the Catholic Education Office, on account of unpaid school fees.  Only the wife has attempted to repay this debt.  She has arranged to make repayments of $50 per month and has so far paid a total of about $200. I will order the husband to pay half of the current balance of this debt from the money which he receives at the end of these proceedings.  I will not interfere with the wife’s arrangements with the Catholic Education Office.

The Issues For Determination

1. Counsel agreed that the principle issues now in dispute between the parties are as follows:

   1.Does the husband have an undisclosed interest in property in Lebanon?

   2.How should the wife’s compensation payments be treated?

   3.What contributions have each of the parties made since the judgment of Ryan FM?

   4.What adjustments, if any, should be made on account of section 75(2) factors?

The Evidence and Witnesses

1. The applicant, the husband, relied on his affidavit sworn on 13 August 2008 and Financial Statement sworn on 12 August 2008.  He also relied on an affidavit of his solicitor, Ms Fay Khalil, sworn on 30 October 2009.  Ms Khalil annexed to her affidavit certain documents in the Arabic language and translations which she helpfully provided.  These documents go to the issue of whether the husband holds any interest in real property in Lebanon. 

2. Ms Khalil deposed that she could not secure funding for a translation of the Arabic documents by an accredited interpreter.  She therefore called upon her fluency in the Arabic language and translated the documents herself.  I had no hesitation in accepting that, as an officer of the Court, Ms Khalil provided an accurate translation of these documents.  Appropriately, no issue in this regard was raised on behalf of the wife.

3. The respondent, the wife, relied on her affidavits sworn on 28 April 2005, 23 October 2006 and 9 October 2007 together with her Financial Statement of 7 August 2008.  She also relied on an affidavit of Mr O sworn on 23 October 2006.  Mr O is an accredited interpreter who translated conversations on a videotape of the husband’s brother conducting a tour of a building in Lebanon.  The wife also relied on an affidavit of her solicitor, Ms Nicole White, which established that a Notice to Admit Facts and Authenticity of Documents was served on the husband’s lawyers on 12 October 2007 and remains unanswered.

4. I was left with reservations as to the truthfulness of both parties but to a much more serious extent in the case of the husband. A striking example of his apparent preparedness to say whatever he thought might advance his case concerned the videotape translated by Mr O.  At the commencement of the hearing the husband’s lawyer conceded that he (the solicitor) received a copy of this tape on 12 October 2006.  Nonetheless the husband insisted in cross-examination “I have never seen or heard of a video of a building in Lebanon”.  When shown a copy of the recording he said “I have never seen it and I don’t know its contents”. 

5. I find it impossible to accept that the husband was really unaware of the existence and contents of this recording.  The videotape was the subject of an application to adduce further evidence in the wife’s appeal.  In my opinion it beggars belief that the husband was not required to view the tape and provide instructions on this important issue to his legal representative. 

6. The wife’s evidence was tinged with an element of dramatic presentation.  Overall, however, I prefer her evidence wherever there is a conflict between the parties.

Approach To These Proceedings

1. According to guidelines established through a series of leading decisions, the Court is required to determine the following matters on the evidence:

   ·    firstly, the assets, liabilities and financial resources of the parties to the marriage are to be determined

   ·    secondly, all relevant contributions of each of the parties, within the meaning of paragraphs (a) to (c) of section 79(4) must be identified and weighed against each other

   ·    thirdly, the matters in paragraphs (d) to (g) of section 79(4), particularly paragraph (e) which takes up by reference the provisions of section 75(2) must be considered and a determination made as to what, if any, alteration should be made to the entitlements of the parties earlier assessed on account of contribution

   ·    finally, an order under section 79 must not be made unless the Court is satisfied that, in all the circumstances, it is just and equitable to make the order.

The Assets

1. The parties agreed that the list of assets should include the former matrimonial home and a notional sum of $10,125, which the husband withdrew from his bank account on 18 December 2003.  The husband also sought to include as assets:

1.	1992 Hyundai motor vehicle (H)	$2,000
2.	2002 Toyota motor vehicle (W)	$10,000
3.	Savings (H)	$1,234
4.	Savings (W)	$300
5.	Household Contents (W)	$2,000

1. The parties disagreed as to the value of the former matrimonial home in PH.  Mr B, a valuer, prepared a report on 26 April 2005 and an update on 30 November 2008.  His first valuation was a firm figure of $440,000 and the second assessment was a range of $420,000 to $440,000. 

2. On behalf of the husband, it was submitted that the appropriate figure is $440,000 because the valuation was twelve months old.  The difficulty with this approach was that there was no evidence as to the movement in values of property in the PH area during the last year.  It thus seems to me that this method may result in an injustice, if the wife is permitted an opportunity to purchase the husband’s interest in the property. 

3. The wife sought to adopt the mid-point of Mr B’s range, being a figure of $430,000.  It seems to me that this approach is most likely to be fair to both parties, if the wife has the opportunity to acquire the husband’s interest in the property.  I thus find the value of the former matrimonial home to be $430,000.

4. There was no evidence as to when or from what source the husband acquired his 1992 Hyundai motor vehicle, which did not appear in the balance sheet set out in the judgment of Ryan FM.  I thus conclude that the husband purchased the vehicle since May 2006, using funds which the evidence did not identify.  In these circumstances I will treat the husband’s car as after acquired property and exclude it from the list of assets.

5. As noted, the purchase money for the wife’s car came from her victims compensation payment and a gift from the parties’ daughter S.  It seems to me that injustice would flow to the wife, if her car is included in this list of assets.  The practical effect would be to confer on the husband an interest in an asset which the wife acquired from money received as compensation for injuries which he inflicted upon her and from a gift which S made to her mother alone.  It seems to me that it would be clearly unjust to the wife to allow the husband to benefit financially from his criminal behaviour toward her.  I will thus exclude the car from the list of assets.

6. The savings of each of the parties would have accrued well after the period when they ceased intermingling their incomes.  I am unaware of the source of their respective savings but I assume that the money came from social security benefits.  I will not include the savings of either party in the balance sheet. 

7. It is now almost seven years since the parties occupied the same residence.  I am unable to determine what furniture and contents were in the former matrimonial home when the husband left the premises in February 2003.  I am aware that the wife purchased a new washing machine in 2006 and it may be that she has replaced other items since 2003.  In this state of uncertainty, I will not include the household contents in the balance sheet.

8. A significant issue as to the composition of the list of assets was whether the husband failed to disclose a beneficial interest in a property in Lebanon.  The wife maintained that there were discussions between the parties and the husband’s brother, about the acquisition of a property in Lebanon.  These discussions were said to have occurred in 1977, when the husband’s brother stayed with the parties for several months. 

9. The wife said that she transferred $9,100 from her savings to a bank account of the husband’s brother to assist with the acquisition of a property in Lebanon.  She said that, subsequently, the husband received a plan for a proposed building. 

10. The wife also said that she observed withdrawals of “large sums from accounts under the control of the applicant with the Commonwealth Bank….”.  In her affidavit sworn on 28 April 2005 she specified two numbered accounts and indicated that she intended to issue subpoenas to obtain this information.

1. The wife claimed that she found a videotape in the former matrimonial home after Ryan FM delivered judgment.  As noted, this recording shows the husband’s brother conducting a tour of a building in Lebanon.

2. The husband maintained that he made it clear in the discussions in 1997 that he could not afford to invest in a property in Lebanon.  He denied that any money was sent to his brother.

3. The wife failed to place in evidence any bank statements showing “withdrawals of large sums from accounts under the applicant’s control”.  I can only assume that no such evidence was available to her. 

4. A copy of a bank draft annexed to the wife’s affidavit did not establish that she provided $9,100 to the husband’s brother.  The document clearly identifies the “customer” as “[the husband’s brother]” and refers to an amount drawn on “Banque Libano Francais Sal Beirut Lebanon”.  There is no mention of either of the parties, and no evidence to link this transaction to either or both of them.

5. The plans annexed to the wife’s affidavit and the documents translated by Ms Khalil contain no suggestion that the husband holds a beneficial interest in any property in Lebanon.  His brother did not say anything in the videotape which would suggest that the husband has a beneficial interest in that particular building.  It is certainly true that his brother made statements which would indicate that the husband wished to take the family to live in Lebanon.  The contents of the videotape go no further than to suggest that he harboured such a wish.  The wife said that he frequently indicated that he wanted the family to live in Lebanon.

6. For all of these reasons I find that the wife failed to establish that the husband holds a beneficial interest in real property in Lebanon.  I thus find that the assets of the parties are as follows:

1.	PH property	$430,000
2.	Money removed by the  husband from the Commonwealth Bank of Australia on 18 December 2003	$10,125
Total:	$440,125

The Liabilities

1. The parties agreed, and I find, that they have the following liabilities:

1.	Commonwealth Bank mortgage	$16,000
2.	Judgment debt to the Catholic Education Office	$18,000
Total:	$34,000

The Contributions of the Parties

1. As noted, counsel agreed that I should consider the contributions made by each of the parties since the orders of Ryan FM.  Further, I was asked to consider a submission on behalf of the husband to the effect that he made an indirect contribution to the wife’s two lump sum compensation payments.

2. The wife received a sum of $17,303, which was a capitalised payment for weekly amounts due to her for the period 6 September 1986 to 9 November 1988.  It appears that this payment was made pursuant to an award of the Compensation Court dated 9 November 1988.  On 16 June 1992 the wife redeemed her workers compensation claim for a sum of $27,338.

3. It thus appears that the wife received these two lump sums on account of lost income, rather than by way of compensation for pain and suffering.  The parties pooled their incomes from the date of their marriage in 1983 until a time many years after the wife received these payments.  That being so, this situation is no different to one in which the wife was able to accrue savings from a weekly wage, while the husband also received income which was available to the household.  I thus take the view that the husband made an indirect contribution to these funds, which were not introduced solely by the wife. 

4. Since the orders of Ryan FM the wife has continued to live in the former matrimonial home and she has been solely responsible for payment of the mortgage and other outgoings.  She has spent a total of $2,800 to install a hand basin and to replace the hot water system in the property.   She has also paid $900 to purchase a new washing machine.

5. Since June 2008 the husband has lived in the home of his elderly aunt on a rent-free basis.  Previously he lived in rented accommodation, apparently of a very basic nature, at three or four different locations. 

6. From May 2006 to date the wife has been solely responsible for the care and financial support of the children.  In May 2006 F was 17, A 14 and C 13 years old. 

7. Since May 2006 the husband has paid negligible child support and spent no time with the children. I appreciate that he has been prevented from participating in the care of the children, either by court orders or their own wishes not to spend time with him.  The fact remains that the entirety of this responsibility has fallen to the wife.

8. I attach considerable weight to the wife’s initial contribution of her interest in the property at M.  She received $12,000 when she sold her half share in the property to her sister-in-law in August 1984.  I have rejected the husband’s uncorroborated evidence that he had savings of the order of $20,000 as at the date of the marriage.  The consequence is that he made no contribution during the course of cohabitation which matched the wife’s introduction of her interest in the M property.  I do not lose sight of the fact that he received a lump sum of $1,800 upon his redundancy in September 1986.

9. The significance of the wife’s receipt of $12,000 in August 1984 is evident from the fact that the parties purchased the former matrimonial home for $45,000, in March 1985.  It may be that the sum of $12,000 was not injected into the purchase but was later paid in reduction of the mortgage.  The fact is that the wife introduced into the marriage funds equivalent to approximately one quarter of the purchase price of the former matrimonial home.

10. In her affidavit sworn on 28 April 2005 the wife set out a number of complaints to the effect that the husband assaulted her and M and S.  She said that the history of assaults of herself dated back to the time of her pregnancy with M. In the proceedings before me the husband did not deny these allegations. 

11. In paragraph 38 the wife set out particulars of the behaviour of the husband which, she claimed, made her role as homemaker and parent more arduous and difficult.  She said: 

    I say that I have observed on many occasions the Applicant:

    i.On too many occasions for me to now recall the precise or approximate number the Applicant would by way of disciplining slap [M], pull her hair, kick her and punch her.

    ii.In relation to [S] I say that the Applicant has hit [S] on a number of occasions.  On or about 14 April 2001 I recall that [S] had shorts in her hand that she was wanting to wear (it was a requirement of the Applicants that no female in the house wore shorts) and I observed that the Applicant said to [S], ‘You are not wearing shorts’.  He then hit her time and again.  He said whilst doing this, ‘You are wearing long pants all the time and you go behind my back to wear shorts’.  This occurred at about 9 or 9:30am.  It took her to see our family doctor Dr [G].   I observed the doctor make some notes as she use to do to my observation.  I observed that [S’s] face was swollen and red and bruised.  I recall that she had been hit in that fashion previously by the Applicant although I cannot recall the exact details.  I had also observed that when he has slapped her he has also pushed her head and shaken her on occasions.

    iv.In relation to both [F] and [A] (both boys) I do not recall that the Applicant has ever struck them but I do recall on many occasions that he would scream and yell at them and on these occasions they would appear quiet, withdrawn and frightened.  I say that it was a requirement and the routine which followed that requirement that the Applicant when having a shower demanded that I stand near the shower and hand him his clothes piece by piece.  This had occurred all the time that we were together.  On one occasion I was cooking and had asked [F] to give his Father his clothes as he was now getting somewhat older.  I then heard the Applicant shouting at [F], ‘I need my thongs’.  I ran to where [F] was outside the bathroom – just outside in the hallway (the Applicant made me stand outside while he had his shower) [F] was crying.  I said, ‘What’s up?’  He said, ‘Mum I gave to him, I gave it to him but he is still yelling at me’.  I said to [F], ‘You go I will hold the clothes’.  Which I did.  The Applicant and I then argued about the clothing that he was being given and he said to me, ‘How many years should it take you to learn what I want you to do’ or words to that effect.

    v.During the course of our married life until separation there would not routinely be a family dinner as such.  The Applicant ate in the absence of the children.  He would say when require me to eat with him words to the effect, ‘I am not a camel and do not eat alone’.  The children had to eat after he had finished.  The Applicant had some strange habits and beliefs one of which was that if the children were to approach the table whilst he was eating or whisper to me the Applicant would then refuse to eat his food and I would need to cook new food.”

12. As noted, counsel agreed that I am able to take into account the findings of Ryan FM, subject to certain specified exceptions.  On the issue of the wife’s claim of a contribution adjustment on the basis of the Full Court authority of Kennon & Kennon (1997) FLC 92-757 her Honour said:

    “In my view the most credible evidence on the issue of family violence is found in Dr [G’s] file.  In a report dated 6 March 2003, Dr [G] writes:  ‘I have been looking after [the wife] since 1997.  She did present on frequent occasions with different bruises and marks on her body due to her husband’s physical violence.  She also mentioned quite a few times the language and swearing that he always calls her.  Her daughter [M] at a certain stage was suffering psychologically from the constant swearing and physical abuse eg pulling hair and pulling her jaw…..I am witnessing that these family members have been suffering from the abuses of [the husband[ since I know them.’”

13. I have no difficulty in accepting that the husband’s repeated assaults of the wife and the children, together with his self centred and overbearing behaviour, materially added to the arduousness and difficulty of the wife’s role of homemaker and parent.  It is thus my view that there should be a contribution finding in favour of the wife on the basis discussed by the Full Court in Kennon & Kennon.

14. On behalf of the husband it was submitted that a Kennon finding in favour of the wife would amount to “double dipping” because she received a victims compensation payment of $9,250 in January 2007.  I do not accept this submission, as this payment related specifically to the assault upon the wife in February 2003.  My findings as to a Kennon component to the wife’s contributions are much more broadly based.  Nonetheless, I take into account the fact that there has been some financial recognition of the way in which the husband’s conduct toward the wife created difficulties for her as a homemaker and parent.

15. Counsel for the husband submitted that the appropriate contribution finding is 59% to the wife and 41% to the husband.  Counsel for the wife submitted that a contribution finding of 72% is appropriate, having regard to matters which have occurred since May 2006. 

16. I attach weight to the wife’s initial contribution of approximately $12,000 and to her introduction of lump sums of compensation amounting to $44,640, allowing for the fact that the husband made the indirect contribution which I have discussed.  I also place weight on the fact that her role as homemaker and parent was made more difficult and arduous by the husband’s conduct toward her and the children.  There is no doubt that the wife was the primary carer for the children and principal homemaker.  She has continued in this role, including sole financial support of the children, since May 2006. 

17. As noted, I accept that the husband made an indirect contribution to the wife’s compensation money.  He contributed his labour to the construction of the new home at PH.  Both of the parties engaged in paid employment in the early years of the marriage.

18. Weighing the contributions of the parties against each other, I find that the appropriate assessment is 70% in favour of the wife and 30% to the husband.  The next question is what adjustment, if any, should be made in favour of either party pursuant to section 75(2).

Section 75(2) Factors

1. I have carefully considered all of the factors set out in section 75(2) but I will refer only to those matters which seem to me to be of significance to the present proceedings. 

2. On behalf of the wife it was submitted that the reality is that neither party will engage in paid employment in the future.  There was no medical evidence but the fact is that the husband qualified for a sickness benefit in 2003.  He received this form of social security benefit until June 2008, when he became entitled to a carer’s pension.  He said that he is prevented from working because he becomes very nervous and stressed.  He said that he cannot concentrate on finding employment, let alone carrying out a job.

3. I accept the husband’s evidence as to these health issues which impact on his capacity for gainful employment.  I am also mindful of the fact that he has a limited capacity in the English language.  In my assessment, he is most unlikely to engage in paid employment in the future.

4. The wife receives a disability pension and said that she suffers from diabetes and continual back pain.  She attributes the latter condition to assaults upon her by the husband.  She is now 55 years old and has been out of the paid workforce since 1984.  In my assessment she, too, is most unlikely to engage in gainful employment in the future.

5. The wife will have sole responsibility to provide care and financial support for C for the next eleven months, until she turns 18 years old in December 2010.  To a slight extent, this matter weighs in her favour pursuant to section 75(2).

6. In my assessment, section 75(2) factors cancel each other out except for the wife’s sole responsibility to care for and financially support C for the next eleven months.  I find that an adjustment of 1% in favour of the wife is warranted for that reason. 

7. One per cent of the net pool equals approximately $4,060, which is a notional amount of about $400 per month for the period between February and December 2010.  That sum could be considered a modest amount of child support for C.

Conclusion

1. I thus find that the net pool of property should be divided as to 71% to the wife and the balance of 29% to the husband.  The net pool of property amounts to $406,125 of which 71% and 29% equal $288,349 and $117,776 respectively.

2. The wife requested an opportunity to purchase the husband’s interest in the PH property.  He offered no reason why she should not be permitted to do so.  The wife gave unchallenged evidence that her nephew is prepared to lend her money for this purpose.  It thus seems to me that the wife should be afforded a reasonable period in which to purchase the husband’s interest in the former matrimonial home.

3. The husband holds a notional asset of $10,125, thus the wife must pay to him a sum of $107,651 which I will round off to /$107,650.  I will allow her three months to raise the necessary funds.

4. I regard this outcome as just and equitable in all of the circumstances.  The parties are in approximately similar positions, in terms of their health and earning capacity.  The wife should be able to retain the former matrimonial home, with the assistance of her family.  The husband will have net capital of around $100,000 and, for the present, he will have the benefit of accommodation in the home of his aunt.  His future will be much more secure with this capital backing.

5. I will include in the orders provision for the sale of the property, in the event that the wife is unable to pay the sum of $107,650 to the husband.  There was no evidence as to the likely expenses of sale, thus I can do not more than express the orders in terms of a percentage division of the gross value of the PH property after deduction of the mortgage.  Any disadvantage will flow to the wife but she requested an opportunity to purchase the husband’s interest in the property.

I certify that the preceding eighty four (84) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson

Associate:     

Date:              5 February 2010