BRIDGES & BRIDGES

[2019] FCCA 683

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRIDGES & BRIDGES [2019] FCCA 683

Catchwords:
FAMILY LAW – Property – just and equitable distribution of assets – financial contributions – future needs – former matrimonial home as main asset – dependent children – chronically ill party – effect of domestic violence on adjustment.

Legislation:

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

Cases cited:

Britt v Britt [2017] FamCAFC 27

Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143

In the Marriage of Kennon (1997) FLC 92-757

In the Marriage of Pastrikos (1979) FLC 90-897

S and S [2003] FamCA 905

Applicant: MR BRIDGES

Respondent: MS BRIDGES

File Number: DGC 4015 of 2016

Judgment of: Judge McNab

Hearing date: 25 and 26 February 2019

Date of Last Submission: 26 February 2019

Delivered at: Melbourne

Delivered on: 21 March 2019

REPRESENTATION

Counsel for the Applicant: Mr Cinar

Solicitors for the Applicant: Erol Cinar Lawyers

Counsel for the Respondent: Ms Johnson

Solicitors for the Respondent: Zenith Lawyer's & Consultants

ORDERS

1. The Respondent Mother is to pay the Applicant Father the sum of $99,458.60 by way of property settlement within 90 days from the date of these Orders.

2. Contemporaneously with the payment, the Applicant do all acts and things required including the signing or execution of all necessary documents to secure a transfer of his interest in the property situated at Property A (“Property A”) to the Respondent at his expense if any.

3. The mother shall indemnify the father absolutely against all payment and liability for the mortgage on the Property A property.

4. Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:

   (a)each party will be solely entitled to the exclusion of the other to all other property including real property and chattels of whatsoever nature and kind in the name or possession of such party as at the date of these orders.

   (b)monies standing to the credit of the parties in any joint bank account are to become the property of the Respondent;

   (c)each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;

   (d)insurance policies remain the sole property of the owner named therein;

   (e)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;

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

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 4015 of 2016

MR BRIDGES

Applicant

And

MS BRIDGES

Respondent

REASONS FOR JUDGMENT

(As Corrected)

Introduction

1. The Applicant father (“father”) commenced these proceedings on 21 April 2017 seeking orders on parenting and property matters. The Respondent (“mother”) was formerly married to the father and is the mother of their four children.

2. The parties agreed to final parenting orders on 26 February 2019.

3. The parties did not reach agreement on the appropriate division of the property.

Proposals of the Parties

1. The father’s Outline of Case of 25 February 2019 does not clearly state what percentage division of assets should occur. In oral argument it was submitted by the father’s lawyer that a division of assets of 40% for the father and 60% for the mother would be just and equitable. The mother’s Case Outline of 25 February 2019 contended that a division of assets (inclusive of superannuation) of 83% in her favour would be just and equitable.

2. In closing submissions, the father’s lawyer put that a division of assets of 55% for the mother and 45% for the father would be just and equitable. Counsel for the mother submitted that a division of assets where the father receives 15% and the mother 85% would be a just and equitable outcome. The mother’s Counsel submitted that the domestic violence that the mother alleged that she has been subjected should be reflected in an adjustment of 20% in her favour.

Evidence

1. The father relied on the following documents:

   a)The father’s initiating application filed 21 April 2017;

   b)The father’s affidavit sworn 20 April 2017 and filed 21 April 2017;

   c)The father’s financial statement filed 21 April 2017;

   d)The father’s affidavit sworn 6 February 2019;

   e)Affidavit of Ms B sworn 21 February 2019;

   f)The father’s outline of case filed 21 February 2019.

2. The mother relied on the following documents:

   a)The mother’s response filed 26 May 2017;

   b)The mother’s financial statement filed 26 May 2017;

   c)The mother’s affidavit sworn 26 May 2017;

   d)Affidavit of Mr C sworn 24 May 2017;

   e)Affidavit of Ms D sworn 26 May 2017;

   f)Affidavit of Ms E sworn 26 May 2017;

   g)Affidavit of Ms F sworn 26 May 2017;

   h)The mother’s amended response filed 11 February 2019;

   i)The mother’s affidavit sworn 22 February 2019;

   j)The mother’s amended financial statement filed 11 February 2019;

   k)The mother’s outline of case filed 25 February 2019.

3. The affidavits referred to in [7](d)–(g) were received into evidence and the deponents were not required for cross examination.

Background

1. The father is aged 59 and the mother is aged 52. The parties met in 1983 in Country G and cohabitated in Country G until 1984. The parties then separated and the father returned to Australia.

2. In 1993 the mother travelled to Australia and the parties began to cohabitate again.

3. The parties married on … 1994.

4. The parties’ eldest child, Ms H is born on … 1997.

5. The parties purchase Property A in 1998 according to the father, and in … 1999 according to the mother.

6. On … 2001 the parties’ second child [X]  was born.

7. On … 2002, the parties’ third child [Y] was born.

8. On … 2005, the parties’ fourth child [Z] was born.

9. The parties separate on 27 January 2015 and divorce on 23 March 2017.

10. The mother is deaf and communicates through speech and sign language. She was assisted at Court by Auslan interpreters.

11. The father has suffered significant ill health since about 2005.

The Asset Pool

1. The father’s asset pool summary:

1.	Former Matrimonial Home at Property A Victoria (joint)	$630,000.00
2.	Bank West Account (mother)	$287.00
3.	ANZ Bank Account (mother)	$6.00
4.	Motor Vehicle J (Driven by the mother)	$7,000.00
5.	Contents of the former matrimonial home (used by the mother)	$2,000.00
6.	Shed tools and boat (currently in the mother’s possession and control)	$1,000.00
7.	NAB Bank Account (father)	$1,000.00
8.	Motor Vehicle K (driven by the father)	$500.00
9.	Hobby equipment (currently in the mother’s possession and control)	$500.00
10.	Total Value of Asset Pool	$642,293.00

Table of Liabilities

1. Former Matrimonial Home at Property A Victoria (joint) $145,500.00

Total Assets Less Total Liabilities

1. Total non-superannuation assets less liabilities $497,293.00

1. The mother’s asset pool summary:

1.	Former Matrimonial Home at Property A (jointly). The $630,000 value of the home was confirmed by both parties in writing in accordance with paragraph 2 of the Court orders dated 7 May 2018.	E $630,000
2.	Bankwest account (Ms Bridges)	$287.00
3.	ANZ Bank account (Ms Bridges)	$6.00
4.	Motor Vehicle L (Ms Bridges purchased a vehicle prior to the Motor Vehicle J post separation with money gifted to her by her family. This was damaged and she since bought the Motor Vehicle J. This asset does not form part of the matrimonial assets)	$7,000.00
5.	House contents	E $2,000.00
6.	Shed – tools and boat	E $3,000.00
7.	NAB Bank Account (Mr Bridges)	$1,500.00
8.	Motor Vehicle K (Mr Bridges)	$1,000.00
9.	Hobby equipment	$1,000.00
10.	Total value of Assets	$645,793.00

Table of Liabilities

1. Mortgage over the Former Matrimonial Home at Property A (joint) $145,000.00

Total Assets less Total Liabilities

1. Net non-superannuation assets $500,419.00

1. The net non-superannuation valuations supplied by the parties, clearly, are similar. The difference occurs due to differing estimations of the values of chattels; and in context of the case, the difference is negligible. The Court accepts the asset pool as proposed by the father: $497,293.00. The mother, however, has $35,312 in superannuation where the father has none.

Approach to property proceedings

1. The Full Court in Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC ¶93-143 identified a preferred four-step process in property matters under the Family Law Act 1975 (Cth):

   a)to identify the pool of assets and liabilities generally, and usually at the time of hearing;

   b)to assess the relative contributions of both the financial, non-financial, direct and indirect nature as specified by s 79(4) of the Act;

   c)to consider the factors as are relevant contained in s 75(2) of the Act; and

   d)finally, to determine whether the order the Court proposes to make is just and equitable to both parties.[1]

   [1] Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC ¶93-143, [39] (Nicholson CJ, Ellis and O’Ryan JJ).

2. This approach was approved in Bevan & Bevan [2013] FamCAFC 116, where the Full Court of the Family Court of Australia considered the High Court’s decision in Stanford & Stanford [2012] HCA 52.

3. Neither party in this case contends that it not just and equitable for the Court to make property orders.

Section 79 factors

s 79(4)(a) – Financial Contributions

1. The major asset of the parties is the house at Property A. The parties disagree as to the date the house was purchased with the father contending that it was purchased in 1998 and the mother saying it was purchased in … 1999. The parties agree on the purchase price of $130,000 but disagree on the amount of deposit paid, the amount borrowed, and the mortgagee. The father alleges the deposit was $20,000, the amount borrowed was $110,000 and the mortgagee was ‘Company M’. The mother alleges the deposit was $13,000, the amount borrowed was $117,000 and the mortgagee was ‘Permanent Trustee Company Limited’. These differences are not material to the matters that the Court must decide.

2. At trial the parties agree that the mortgage was initially paid jointly although the father contends the mother ceased making contributions after about 1999. The mother gave evidence that she worked full-time as a trades person from 1994 until 2001 and then worked part time to around 2010 whilst looking after the children and paid an equivalent amount during that time.

Financial contributions of the father

1. The father ran his own business from 1989 in Suburb N. This venture went bankrupt during the recession in the 1990s. The mother gave evidence that she jointly contributed to paying off the debts of the business.

2. The father gave evidence that from about 1998 he was working 56 hours per week for two employers, receiving around $950.00 per week. On a per annum basis, this would be just below $50,000.

3. It appears that the father continued this state of employment until 2005 when he voluntarily took a redundancy payment because of his deteriorating health.

4. The father then attempted to work as a “tradesman”. This period of employment lasted roughly 12 months.

5. The father’s ill health began to prevent him from working around this time. Consistent with his declining health and inability to work, the father started receiving a government Disability Support Pension in 2007. At trial, the father presented as clearly struggling with his diminished health and inability to contribute to the family. The father had surgery in 2011 to remove a cancerous growth, provided evidence of hormonal imbalances and described being chronically fatigued. The father’s sister attests to his ill health and the effect that it has had on the father’s energy levels and capacity to work.

6. Counsel for the mother was critical of the father because there was no comprehensive medical report going to the father’s current condition or his prognosis. I note that the father exhibited a medical report from his treating endocrine surgeon dated 22 April 2015 which stated that the father had presented with extensive thyroid cancer involving the lymph nodes on his neck. The father required a total thyroidectomy and neck dissection, which seems to have cured his cancer. The endocrine surgeon also referred to the father suffering from pulsatile tinnitus which has been destructive to his wellbeing. The father also gave evidence that he had attended Mr O, a specialist, in relation to chronic fatigue and had been certified as unfit for work and placed on a Disability Support Pension.

7. I accept that the father is not physically well and that his receipt of a Disability Support Pension since 2008 and lack of paid work is reflective of his incapacity. The affidavits of Ms F, Ms E and Ms D all attest to the father spending most of his time in bed, unable to assist around the house.

8. The father puts into evidence that he withdrew $17,000 from his superannuation account to install a solar system on the house, thereby reducing power bills to zero. Further, the father alleges he withdrew the remaining amount in his superannuation account – being $76,619 – and paid this to the mortgagee. Contrarily, the mother alleges that the father has made no contribution to the mortgage during the period between 2005 and 2015 and that the mother paid all the mortgage instalments and rates.

9. The mortgage is currently greater than the amount originally borrowed. The increase in the mortgage is due to unfortunate circumstances: around 2001, the parties borrowed against the house to take advantage of what was promoted as a lucrative investment opportunity that turned out to be a fraudulent investment syndicate. The parties lost their investment and were sued due to the agreements that were entered into with other syndicate members pursuant to the fraud. The parties gave evidence before the Court that the monies withdrawn from the husband’s superannuation fund form part of the funds directed towards paying the debts arising from the fraudulent investment scheme.

Financial Contribution of the mother

1. The parties disagree on when the mother ceased fulltime employment: the father alleges 1999; the mother alleges 2001. Accordingly, the parties also disagree when the mother started part-time work (and also disagree when the mother finished part-time work): with the father alleging from 1999 to 2008 and the mother claiming 2001 to 2010.

2. The parties do agree on when the mother began work as a tradesperson in 2008; though the father alleges she began to receive the Disability Support Pension in 2008 with the mother’s outline of the case being silent on this issue.

3. The parties agree that the mother trained as a health worker. The parties disagree as to when this led to a job: with the father asserting 2013, and the mother February 2014. The parties agree that she now earns between $55,000 and $60,000 working on a part time basis.

4. Other than the superannuation payments in 2010 referred to in [35] above, the Respondent paid for all the mortgage instalments and rates since 2005.

Finding on Financial Contributions

1. The Court finds the parties made roughly equal financial contributions until about 2010 taking into account the contributions from the father’s superannuation fund. From 2010 until the present, the significant financial contributions have been made by the mother, as the father, by reason of his ill health, has been unable to work. I also note that the mother’s contribution has been made whilst caring for the four daughters in a household with very limited funds. I allow 10% in favour of the mother in respect of her greater financial contribution at a time when the children were growing up and had significant needs.

s 75(2) – Domestic Violence

1. When considering an order under s 79 of the Family Law Act 1975 (Cth), the Court may have regard to s 75(2) factors pursuant to s 79(4)(e).

Allegations of domestic violence perpetrated by the mother

1. A significant aspect of the case is the mutual allegations of family violence made by the parties. The father gave evidence that he had been subjected to significant verbal and physical abuse by the mother, largely as a result of her reaction to his incapacity due to ill health.

2. A particular instance was referred to in the father’s affidavit sworn 20 April 2017 at [44]-[52], where it was said that the mother had confessed to assaulting the father to the father’s sister. Shortly prior to the hearing, the father’s sister Ms B, swore and filed an affidavit deposing to an incident in May 2012 when she attended the parties’ home with her partner. Ms B deposes that when the mother collected her from the train station she stopped the car and told her words the effect “I have been hitting your brother”. Ms B said that she was concerned about the conversation as she did not want it to occur in front of her partner nor the father and mother’s youngest daughter. The mother was upset and Ms B tried to calm her. Ms B deposes that when she arrived at the party’s house the father was wearing pyjamas, a dressing gown and a T-shirt. Ms B described the T-shirt as being ripped and stated there was blood on the neck line of his T-shirt with a number of small blotches of blood. She asked her father whether he needed medical attention and he said “no, no, no” and that Ms B should “go and get your hair cut”.

3. In relation to this incident the mother gave evidence that she had scratched the father causing bleeding but this arose in response to the husband grabbing one of the children and shouting at her.

4. Ms B gave evidence of another incident she overheard while on the telephone with the father:

   I recall about two or three phone calls where [the father] has said to me during these calls words to the effect “she’s hitting me now” and I would hear the [mother] screaming at [the father] saying “you are a liar”. During those phone calls, I would hear unusual sounds and it sounded like there was a disturbance. In one of these calls, it sounded like the [mother] was wrestling the phone from [the father] and she was yelling into the phone at me saying the words to the effect “your brother is a liar”.

Allegations of domestic violence perpetrated by the father

1. The mother made allegations that the father committed domestic violence against her and the children. These allegations are specific and general in nature.

2. The mother alleges that the father would, in front of the children, call her “deaf and dumb”, “stupid”, “bitch” and “moron”.

3. The child [X]  reported to the family consultant that the father was physically violent on a daily basis towards her and her siblings.

4. The mother’s affidavit of 26 May 2017 refers to a Department of Human Services (“DHS”) report which, reportedly, alleges that the father hit the children with a wooden spoon on several occasions. The DHS report was not tendered into evidence. The mother describes the content of this report in the following way:

   In 2007, [Y] attended Kindergarten and had two welts and bruises on her upper thighs. The injuries were from being hit by a wooden spoon by [the father]. I believe the kindergarten teacher contacted [DHS] – Child Protection Services. A worker named Mr P at DHS made a report.

   On 30 August 2010 it was reported to DHS that [the father] periodically hit Ms H and her younger sisters with a wooden spoon. It was reported that [the father] frequently yells and swears at Ms H, calling her names such as “mole” and “maggot”. [The father] has made the children sleep outside on two occasions, forcing them to use dirty sheets and sleep on the trampoline. [The father] tells the children that he will commit suicide by running in front of a truck on a nearby major road due to the stress his family is causing him.

1. These allegations were denied by the father when put to him at trial. The allegations regarding [Y], the verbal abuse of Ms H and the reading of the suicide note is all consistent with a s 67Z report supplied by DHS. The father did not deny reading the children suicide note but said he was at his wits end.

2. The affidavits of Mr C and of Ms E provide further confirmation of the general allegations of physical and verbal abuse to the mother and the children by the father.

Finding on Family Violence

1. The mother’s counsel submitted that the domestic violence suffered by the mother should result in an adjustment of the division of the property pool of 20% in favour of the mother.

2. I accept the event in May 2012 involving the mother scratching the father causing bleeding occurred. I also accept the evidence of Ms B that the mother told her that she had been hitting the father. I accept that the mother was extremely upset that the tensions within the household had risen to a point where she had scratched the father. She gave evidence that her actions were done in defence of her children.

3. I do not accept that the mother has engaged in systematic family violence towards the father and the incident referred to by the father and Ms B is particular in nature. This was a household where there was a very high level of tension both between the parties and between the parties and the children at certain times. The tension is exacerbated by the mother’s deafness, for when she did speak at trial (in conjunction with assistance of Auslan interpreters), she spoke loudly (as you would expect). The mother is also differently abled in the sense that English is not her first language and she has to contend with communicating in a second or third language whilst being significantly hearing-impaired.

4. The father is incapacitated to the extent that he spends much of his time in bed. He gave evidence that when he does household chores such as mowing the lawn, the physical exertion exhausts him, and can lead him to be bed ridden for three or four days feeling extremely unwell. This is in the context of him formerly being an elite sportsman who participated at a professional level in Country G and almost competing for Australia in the … Games. In addition to dealing with his ill-health, including pulsatile tinnitus which of itself can be debilitating, he has had to deal with financial hardship, being the victim of the fraud and the loss of his relationship with his elder children.

5. I do accept that the father has engaged in conduct towards the mother and children which fits the definition of family violence and that the violence has had a significant impact on the mother. I note that in the course of the hearing, whilst his sister was giving evidence, the father positioned himself so that he could stare directly at the mother. The Court raised this with the father and he commented that he was doing this in order to “see her reaction”. I take from this that he was acting in deliberate manner in order to try and intimidate or provoke a reaction from the mother. I also accept that the mother has been deeply upset by the father’s behaviour. The mother, when questioned on the father’s conduct of emotional and physical abuse, was genuinely upset when recounting her experiences. I also accept that the father is likely to have engaged in behaviour throughout the marriage that was intentionally derogatory of the mother or for the purposes of getting a reaction from her.

Adjustment of property due to family violence

1. The issue for the Court is whether family violence referred to by the mother should result in some adjustment in relation to the division of property between the parties. In In the Marriage of Kennon [1997] FLC ¶92-757 (‘Kennon’) the Full Court stated at ¶84-924:[2]

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

   [2] In the Marriage of Kennon [1997] FLC ¶92-757, ¶84-924 (Fogarty and Lindenmayer JJ).

2. At [47] in S & S [2003] FamCA 905 the Full Court stated:

   As Kennon has established, it is necessary to provide evidence to establish:

   ·    the incidence of domestic violence;

   ·    the effect of domestic violence; and

   ·    evidence to enable the Court to quantify the effect of that violence upon the parties capacity to “contribute” as defined by section 79(4).[3]

   [3] S and S [2003] FamCA 905, [47] (Kay, May and Carter JJ).

3. In this case no evidence has been called by the mother that the family violence made her contributions more onerous. Neither was evidence given that made it possible to quantify the effect of the violence upon her capacity to contribute.

4. I accept that the Court can infer from appropriate evidence that there is a nexus between the family violence and the impact that has on the victim’s ability to make contributions: Britt v Britt [2017] FamCAFC 27 at [74].[4]

   [4] Britt v Britt [2017] FamCAFC 27, [74] (May, Aldridge and Cronin JJ).

5. In the present case, family violence occurred in the context of what is described by the parties and by witnesses as a fraught family environment. The evidence also shows that within the context of the family violence the mother has been able to improve her financial position: she has undertaken study, obtained employment and continued to be the main financial contributor. It is difficult for the Court to infer that the family violence had a significant adverse impact on her contributions.

6. Having regard to the authorities I was referred to by counsel for the mother, I do not believe that it is appropriate for me to make an order adjusting the property interests because of family violence.

s 75(2) – Future needs

1. The mother is currently, and since at least 2010, has been largely financially responsible for the children. The mother provides for the four children in all aspects. Although the eldest daughter is now employed, she provides accommodation by paying the mortgage, pays the utility bills and is supporting the children through school and university. I regard this as very significant. The children have not had an easy time and there is no evidence that the father has any capacity to make further provision to assist financially.

2. The mother receives practically no support from the father, who pays minimal maintenance of around $7 per week for all of the children.

3. The father is in poor health has not worked since about 2005. He is in receipt of Disability Support Pension. He lives with and assists his elderly mother who suffers from dementia. No evidence was placed before the Court in relation to the likely situation when the father’s mother passes away or is placed in care. The father has access to a Disability Support Pension and I presume that he may have access to public housing in the event that he is no longer able to live with his mother.

4. In my view, given the ages of the children and lack of capacity on the part of the father to make contributions to their maintenance, it is appropriate to make a further adjustment of 20% in favour of the mother.

5. I also note what said by the Full Court of the Family Court in In the Marriage of Pastrikos (1979) FLC ¶90-897 at ¶70-653:

   Without excluding other significant factors from consideration, any disparity between the parties’ financial resources and the obligation of either to provide a home for the children may make it just and equitable for the Court to increase the share of a party beyond that amount which would be justified solely by the contribution of that party to the property.[5]

   [5] In the Marriage of Pastrikos (1979) FLC ¶90-897, ¶70-653 (Evatt CJ, Pawley SJ and Yuill JJ).

Conclusion

1. According to the reasons above, the asset pool will be divided:

   a)for financial contributions, 10% in favour of the mother;

   b)for domestic violence, no adjustment; and

   c)for future need, 20% in favour of the mother.

2. This results in a division of the asset pool of 80% to the mother, and 20% to the father.

3. The mother should retain the benefit of the superannuation funds. The mother will need this financial resource in the future given the continuing cost of caring for the children and the cost of paying the mortgage.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 21 March 2019

Corrections

• The ‘Hearing dates’ on the cover page of this judgment has been changed from 27 February 2019 to 5 and 26 February 2019.

• The ‘Date of Last Submission’ on the cover page of this judgment has been changed from 27 February 2019 to 26 February 2019.