BRISCOE & BRISCOE

[2019] FCCA 2296

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRISCOE & BRISCOE [2019] FCCA 2296

Catchwords:
FAMILY LAW – Property settlement – husband has diminished the property pool since separation – contributions – “Kennon” consideration - s.75(2) factors.

Legislation:

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

Cases cited:

Re: L (Litigants in Person Guidelines) (2001) FLC 93-072

McKenzie v McKenzie [1970] All ER 1034

Stanford v Stanford [2012] HCA 52

Russell v Russell (1999) FLC 92-877

Trevi & Trevi [2018] FamCAFC 173

Bevan & Bevan (2013) FLC 93-545

AJO & GRO (2005) FLC 93-218

C & C [1998] FamCA 143

Kennon & Kennon (1997) FLC 92-757 at 84,294

Keating & Keating [2019] FamCAFC 46

Spagnardi & Spagnardi [2003] FamCA 905

Amador & Amador [2009] 43 FamLR 268

Pierce v Pierce (1999) FLC 92-844

Applicant: MS BRISCOE

Respondent: MR BRISCOE

File Number: LNC 314 of 2018

Judgment of: Judge McGuire

Hearing dates: 1, 2 & 5 August 2019

Date of Last Submission: 5 August 2019

Delivered at: Launceston

Delivered on: 5 September 2019

REPRESENTATION

Counsel for the Applicant: Ms J Higgins

Solicitors for the Applicant: Bishops

Respondent appeared in person

ORDERS

1. That within fourteen (14) days of the date of these Orders the parties sign all documents and do all such things so at to market and sell the property at B Street, Town C in Tasmania but should the husband refuse or fail to sign and return any such documents to the wife’s solicitors within seven (7) days of receipt then pursuant to s.106A of the Family Law Act 1975 a Registrar of this Court be enabled to sign any and all such documents.

2. That within fourteen (14) days of the date of these Orders the parties sign all documents and do all such things necessary to conduct a sale of plant, equipment and hay on the property at B Street, Town C in Tasmania but should the husband refuse or fail to sign any such documents to the wife’s solicitors within seven (7) days of receipt then pursuant to s.106A of the Family Law Act 1975 a Registrar of this Court be enabled to sign any and all such documents.

3. That the property at B Street, Town C in Tasmania be marketed for sale by auction or private treaty as recommended by the real estate agent and at a sale price and/or reserve price as recommended by the real estate agent and that the parties accept any offer of settlement as reasonably recommended by the real estate agent.

4. That the property be marketed by an agent as agreed between the parties but failing agreement then by an agent nominated by the President of the Real Estate Institute of Tasmania or his/her delegate.

5. That the balance proceeds of sale of the property at B Street, Town C in Tasmania be paid to the wife after reasonable costs and disbursements on the sale.

6. That the plant, equipment and hay on the property be sold by a reputable agent as agreed between the parties but failing agreement then by Valuers C/Auctioneers or by a reputable agent as recommended by the manager of Valuers C.

7. That the proceeds of sale of the plant, equipment and hay be paid to the wife after reasonable costs and disbursements on the sale.

8. That within twenty-eight (28) days of the date of settlement of the sale of The B Street, Town C property and the sale of plant, equipment and hay the husband make a cash adjustment to the wife in a quantum so as to give a net 56% of the property pool pursuant to these reasons to the husband and a net 44% of the pool to the wife.

9. That subject to these Orders the wife transfer her right, title and interest in the following to the husband absolutely:

   (a)Property at M(1) Street, Town N in Tasmania;

   (b)Property at M(2) Street, Town N in Tasmania;

   (c)Property at M(3) Street, Town N in Tasmania;

   (d)Husband’s superannuation entitlement;

   (e)All personalty and chattels, including motor vehicles, in the possession of or under the control of the husband as at the date of these Orders; and

   (f)Any bank accounts or like investments in the name of or to the benefit of the husband as at the date of these Orders.

10. That contemporaneously with the transfer Orders above the husband transfer and/or vest all his right, title and interest in the following to the wife absolutely:

    (a)The wife’s superannuation entitlement;

    (b)All personalty and chattels including motor vehicles currently in the possession or control of the wife as at the date of these Orders;

    (c)Any bank account or like investments in the name of or to the benefit of the wife as at the date of these Orders.

11. That the husband be solely responsible for and indemnify the wife in respect of any mortgage liability secured by any of the properties at M(1), M(2) and M(3) Street, Town N in Tasmania.

12. That each party be solely responsible for and indemnify the other in respect of any liabilities incurred by that party since separation in either that party’s name or in joint names and in respect of any asset retained by that party pursuant to these Orders.

13. That the parties or either of them have liberty to apply in respect of the execution or enforcement of these Orders.

14. That pursuant to Section 81 of the Family Law Act 1975 the parties intend that these Orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT LAUNCESTON

LNC314 of 2018

MS BRISCOE

Applicant

And

MR BRISCOE

Respondent

REASONS FOR JUDGMENT

Applications

1. The wife is the applicant for orders for a property settlement pursuant to section 79 of the Family Law Act and after a long relationship which had endured since 1974.

2. By the conclusion of the evidence, the wife is seeking orders whereby she receive 48% of a property pool and the husband 52%.  Significantly, there are issues as to the nature and content of the property pool including arguments by the wife for the 'add-back' of the husband's superannuation entitlement of $553,438.88 which the husband concedes that he has spent since separation in November 2017 and also for assets disposed of by the husband since separation.

3. The husband is unrepresented, and presented with some real difficulties in understanding the complexities of s.79 of the Family Law Act 1975 (‘the Act’) generally and of his own case in particular.  In summary, he opposes the add-back of any of the items claimed by the wife.  He seeks an order whereby the wife receive 2% of his current superannuation entitlement of approximately $4,000.  He agrees for the wife to retain the former matrimonial home on a small farm at B Street, Town C in Tasmania with an agreed value of $450,000 together with her superannuation entitlement of $53,235 and the motor vehicle and chattels currently in her possession.  His proposal would have him retaining three properties in Town N with a total value of $785,000 plus the benefit of his crystalized superannuation. 

Background

1. In his impassioned final address to the Court, the husband threw light on what was obviously a long but difficult and unhappy marriage.  The parties were both employed throughout the marriage save for a few years when the wife was caring for the three young children of the union.  In later years they also ran their farming enterprise whilst maintaining their employment.  Whilst it is clear that both parties were extremely hard workers and good parents to their now adult children, it is also apparent from the evidence that the marriage was highlighted by heavy drinking by each of them and probably a degree of connected family violence.

2. The husband is 61 years old.  The wife is 58 years of age.  They commenced their relationship in 1974 and married on … 1981.

3. There are three children of the marriage born in 1982, 1984 and 1986 and hence all now independent.

4. The parties separated for approximately seven months in November 2016 and resumed cohabitation between June and November 2017 but separated finally on 14 November 2017.

5. The evidence satisfies me that on 28 March 2018 the husband was paid his entitlement from his Super Fund L Super Fund in a quantum of $553,438.88.

6. The wife presented as frail and generally unwell and looking far older than her years.  She has now not worked since … 2016 and was most recently employed as a health care worker and also, from the evidence before me, contributing to the work on the farm.  She suffers cirrhosis of the liver and various mental/emotional ailments. 

7. The husband was initially employed as a tradesman but for a good part of the marriage worked at Employer D where the evidence suggests that he was a hard worker and held in high regard.

8. The husband also presented in Court as older than his years and perhaps evidencing his hard work life including on the parties’ farm.  He also claims various physical and emotional ailments.

9. In about 2001 or 2002 the husband inherited two properties at Town N being at M(2) and M(3) Street.  The husband says that at that time the value of his inheritance was $153,000.  The third Town N property was purchased and presumably as an investment.

10. The wife received an inheritance of $10,000 in about 2007 which was contributed to the purchase of a motor vehicle for her.

11. Unfortunately and unhappily, the wife is estranged from the three adult children of the marriage.  Those three children each provided affidavits for the husband in this matter but on the last day of the trial the husband chose not to rely on those affidavits and hence the children were spared the difficulty of giving evidence and being cross-examined.

The Evidence

1. The husband represented himself in these proceedings.  The wife filed her application on 28 May 2018.  It seems that the husband was represented by at least two different solicitors up until about March 2019.  He has since appeared at various mentions and interlocutory applications before the Court representing himself.  My recollection is that I enquired on a number of occasions as to whether Mr Briscoe intended to have legal representation at the trial.  The matter was listed for trial with a high degree of notice and including one adjourned trial date due to the ill-health of both of the parties.  Nevertheless, when the matter came on for trial Mr Briscoe made an application for an adjournment so as to obtain legal assistance.  Submissions in support of that application suggested that he had contacted at least five or six separate lawyers who were either unavailable or whom he did not consider to be competent.  He could not satisfy the Court that his self-represented status would be improved by any adjournment.  Further, the prima face material suggested that the wife's health issues were dire and that this matter should proceed, if possible.  The adjournment was not granted and separate reasons were provided ex tempore.

2. The Court took considerable time to explain the procedure to Mr Briscoe with an invitation for him to ask questions at any time in respect of procedure[1]. 

   [1]Re: L (Litigants in Person Guidelines) (2001) FLC 93-072

3. Further, the husband enjoyed the benefit of his sister, Ms E, as a 'McKenzie Friend'[2].  It is clear that Ms E assisted the husband in the preparation of his affidavit material and in circumstances where Mr Briscoe confessed to not having great literacy skills, it was deemed appropriate for him to have the assistance of Ms E at the bar table.  Ms E was, however, a witness in these proceedings and this logistical difficulty was resolved by Counsel for the wife agreeing for Ms E to give her evidence first and therefore then become available to assist Mr Briscoe.

   [2]McKenzie v McKenzie [1970] All ER 1034

4. Mr Briscoe relied on two trial affidavits sworn 17 April 2019 and 6 June 2019 together with his sister's affidavit of 22 May 2019.  He also provided a financial statement sworn 17 April 2019.

5. As mentioned above, Mr Briscoe did not present as having a grasp of the complexities of this s.79 applications and, despite my attempt to explain my role and the course of consideration for me under s.79, he prosecuted his case with a not unusual lay person’s misunderstanding that he had perhaps earned the majority of money during the relationship and put it towards the purchase of assets and that he should therefore reap the benefit. In this sense, I considered whether or not Mr Briscoe was naïvely prosecuting a case on an 'asset-by-asset' approach? This, however, is a relationship that commenced some 45 years ago. It has involved both parties working hard and numerous considerations of direct financial, indirect financial and non-financial types. I was easily and quickly persuaded that such an 'asset-by-asset' approach could not do justice to a proper consideration under s.79 of the Act and that the matter would be considered on the more common inglobo approach.

6. Mr Briscoe gave his evidence in a straightforward manner consistent with his affidavit and his general argument.  He was respectful and courteous at all times to the Court, Counsel for the wife, and the wife in cross-examination.

7. I generally thought Mr Briscoe to be a witness of the truth and including (finally) conceding that a sum of $40,000 in cash remains from his superannuation entitlement and has been 'deposited' with another of his sisters who lives at Town O.

8. The wife gave evidence and was cross-examined.  She relied on her trial affidavits of 12 March and 24 May 2019 and her financial statement sworn 12 March 2019.

9. Generally, I did not find Ms Briscoe to be an impressive witness.  Her denials as to her historical alcohol abuse were transparently untrue.  Similarly, her denials in respect of some expenditure were also dubious at best as to their veracity. 

10. Ms E gave evidence for her brother, Mr Briscoe.  She has some 12 or so years of experience as a professional.  Sadly, her understanding of family law was minimal.  She was a witness partisan to her brother’s position including generally his misunderstanding as to the options open to the Court in respect of a post-separation diminishing of the asset pool.  Ms E's efforts to corroborate her brother’s evidence were admirable but of little assistance to the Court.

11. The wife brought another of the husband’s sisters to Court under a subpoena issued during the trial and only after the husband admitted with obvious reluctance that he had deposited $40,000 of his superannuation with his sister.  Suffice to say that Ms F was an unenthusiastic and poor witness.  She said only that the husband had left a suitcase with her.  She claims to not know its contents.  She claims not to have asked of her brother the reason for him depositing the suitcase.  She was not a believable witness.  She also confirmed that she now had possession of a Motor Vehicle G motor vehicle with her evidence as to its true ownership, its value, and the declaration of value on its transfer all being dubious.

12. Dr H, psychiatrist, gave evidence for the wife.  His affidavit was sworn 8 March 2019 and carries a report dated 13 February 2019.

13. Dr H is experienced in assisting in matters before this Court.  In circumstances where the wife claims a history of family violence at the hands of the husband and mounts a 'Kennon’ claim, Dr H readily admitted that his own report and assessment is based solely on the version of history given by the wife to him and hence relied very much on her being honest and credible and, further, that his report would have been assisted by an interview with the husband and a more balanced understanding of the history of this long relationship.

14. Interestingly, the wife had obtained an adjournment of the trial in these proceedings in part because of what she said were difficulties with her mental health.  In the witness box and prior to Dr H giving his evidence, the wife claimed under her oath that she had suffered a ‘mental breakdown' necessitating the adjournment.  While little is of the real consequence in respect of this issue, it is relevant to credit that Dr H was asked to see the wife at the A Hospital at the relevant time and was firmly of the view that her difficulties were physical and that she was 'lucid' at that time and did not agree that she had suffered from any form of ‘mental breakdown'.

The Issues

1. There is a major issue in this matter as to the content of the property pool.  The husband concedes that he has spent $553,438 of his superannuation save and accept the $40,000 that he now says is deposited with his sister and a residue remaining of about $4,000.  He readily concedes that he has disposed of a motor vehicle, motorcycle, boat-trailer, a tractor and other assets of considerable value and has done so since separation.  He does not claim that he has had the benefit of these monies with the consent of, or even consultation with, the wife.  His explanation as to the expenditure of his superannuation is that he 'earned it, had worked hard, and had the right to spend it.'  In respect of the other assets disposed of and often for payment under value, the husband says that the wife had accrued various debts with family members and that he was 'paying the wife's debts'. 

2. There is also an issue for the Court as to the weight to be afforded the husband on account of his inheritance received in about 2002.  The husband says that the value of those two properties then was $153,000.  They now sit in the pool at considerably greater value. 

3. The wife also mounts what is colloquially known as a 'Kennon' claim.  She says that she was the victim of family violence throughout the relationship and that this made her contributions more onerous.  The husband denies family violence or, alternatively, suggests that the wife was the instigator of family violence and generally when heavily intoxicated.

4. The Court must also consider the parties circumstances pursuant to s.75(2) of Act but frankly these are elderly people, both unwell, and neither capable of remunerative employment. There may be some consideration pursuant to s.75(2)(o) as an alternative to 'add-backs' to the pool in respect of the disposal of some assets by the husband and where the real value of those assets is not known.

The Relevant Law

1. Section 79 of the Act provides for alteration of property interests and allows a discretion for the Court within the statutory limitations provided in the section.

2. Pursuant to the well-known decision of the High Court in Stanford v Stanford[3], the Court is first to consider whether it be just and equitable to make any alteration of the parties interests in property in the particular circumstances of the parties and their relationship.  In the matter now before me, I am not troubled in this regard.  This was a relationship of some 44 years duration.  The parties jointly owned property.  The marriage is at an end.  The current distribution of property prima face very much favours one of the parties.  Consequently, I am satisfied that it is just and equitable to consider an alteration of their property. 

   [3] [2012] HCA 52

3. The Court is then to establish a property pool of the parties.  The date for considering that pool is usually the date of the trial and, indeed, it appears that Mr Briscoe has been the beneficiary of some ‘advice’ in this respect given his argument that there should not be add-backs to the pool.  'Property' includes assets, liabilities and financial resources of the parties.  For these purposes, superannuation is to be 'treated as' property although not strictly being property in the sense of tangible assets.

4. The Court is to attribute value to the items in the property pool and hence to the net value of the property pool itself.

5. The Court is then to consider the contributions of the parties to the attaining of, maintenance and improvement of the property pool.  Contributions may be of a direct financial type, indirect financial contributions, or non-financial contributions including as homemaker and parent.

1. After the Court has carried out a consideration of altering the property pool on a weighing and balancing of the various contributions, it must consider whether there be a further adjustment to either of the parties on account of the matters in s.79 (4)(d) – (g) and including those considerations in s.75(2) of the Act.

2. Finally, the Court should then ‘stand back’ and consider whether the proposed orders provide justice and equity to these parties as opposed to simply the percentages distribution.[4]

   [4] Russell v Russell (1999) FLC 92-877

The Property Pool

1. The issues in respect of the property pool are the following:

   (a)Husband's superannuation – $553,438.88

   (i)By inference, the husband argues that this sum should not be added back to the pool although he candidly admits that he has spent the money.  Even his own argument makes it difficult for a Court to consider such expenditure to be 'reasonable' where in his sworn financial statement of 17 April 2019 he deposes to having disposed of his superannuation as follows:

Money Gifts	My Eldest son for a Court settlement, my daughter for administration work and support, Renovations on my mother's house as requested by her GP and Company J. My older sister, her business was in trouble and expenses to Tasmania for court proceedings. My youngest son cash for start-up contracting business. Unspecified an unknown amount spent on gambling at casinos. Scams from a females on line $5,000	141,000 E275,000
Travel	Travel to Country P, Country Q, NSW, Vic, Sa, travel partners and expenses.	91,800

(ii)The husband admitted in the witness box that his sister holds $40,000 for him; and

(iii)The Full Court in Trevi & Trevi[5] recently revisited the jurisprudence in respect of 'add-backs' and following the decisions of the High Court in Stanford (supra) and Bevan & Bevan[6].  At [27] and following and under the heading ‘Guidelines for adding back to property available at trial' the Court to said:

[27] The Full Court held in AJO & GRO[7]  that add backs fall into 'three clear categories': where the parties have expended money on legal fees; where there has been a premature distribution of matrimonial assets; and 'waste' or wanton, negligent, or reckless dissipation of assets. 

[28] However, the Full Court also made it clear that an add back does not necessarily occur whenever 'a party has expended money realised from the disposition of assets that existed as at the date of separation', the Full Court describing such a proposition as 'unduly simplistic'.  An earlier Full Court made the same point saying that adding back is 'the exception rather than the rule'.[8] 

[29] The fundamental precept that add backs are exceptional, reflected in the decisions just referred to, also mirrors what has been said in earlier decisions of the Full Court that, for example, 'the Family Court must take the property of a party to the marriage as it finds it' at trial.  An important parallel proposition is that the parties do not 'go into a state of suspended economic animation' after separation. Thus, reasonably incurred expenditure does not usually come within accepted categories of add back.

[30] Two fundamental premises emerge from AJO & GRO and the authorities preceding it. First, 'adding back' is a discretionary exercise.  When a discretion is exercised in favour of adding back, it reflects a decision that, exceptionally, in the particular circumstances of a case, justice and equity requires it.  The second premise is its corollary: in cases that are not 'exceptional' justice and equity can be achieved, not by adding back, but by the exercise of a different discretion – usually by taking up the same as a relevant s.75(2) factor.  Indeed, it has been said that the latter is 'a course which is, perhaps, technically more correct' than adding back to the list of existing interests in property.

(iv)Mr Briscoe is bitter and still angry at the demise of his marriage despite its obvious difficulties. I have little doubt that he entered into a course of dissipating the property pool, at least in part, in order to deprive the wife of her entitlement under s.79 of the Act. Whilst Mr Briscoe pleaded ignorance to the matters set out above in respect of the 'add-backs', I note that he has engaged no less than two experienced family lawyers only to have dispensed with their services. His attitude is perhaps best evidenced by the statement he volunteered in the witness box:

[5] [2018] famCAFC 173

[6] (2013) FLC 93-545

[7] (2005) FLC 93-218

[8] C & C [1998] famCA 143

I built an empire.  I intend to destroy it.

(v)Mr Briscoe did not attempt to hide the fact that he has had the benefit of his superannuation to the exclusion of the wife.  Any suggestion by the wife's Counsel that the husband has hidden away these monies rather than spent them as he claims is of little consequence given his concessions.  He does not plead that he had the consent of the wife or even consulted her in respect of these matters.  His evidence is candid in these respects.  It is irresistible, in my view, that the husband's own case can lead me to only one conclusion being that he has wantonly either spent or retained these monies and that his superannuation in its entirety should therefore be 'added-back' to the property pool.  I see this as clearly being an “exceptional” circumstance as contemplated by their Honours in Trevi (supra).

(vi)Despite it being unnecessary, it is perhaps relevant to point out that Mr Briscoe's own financial statement sworn July 2018 deposes to an income of $1,670 per week.  He says that he continued in his employment albeit on a reduced capacity until December 2018.  Although he did not mount such an argument, it is difficult to allocate the expenditure of his superannuation on the reasonable necessities of life.

(b)Sale of other assets by the husband

(i)Secondly, and related, is consideration of the disposal of various assets by Mr Briscoe.  Again, he agrees that he did so without the consent of or consultation with the wife.  He generally explains his actions by an argument as to 'paying the wife's debts' to various family members.  The argument, if I understand correctly, is that Ms Briscoe would borrow money off relatives for cigarettes or other purposes.  There is no evidence of any accounting by these people.  There is no evidence of these people demanding repayment from Ms Briscoe herself. 

(ii)Generally, I find the husband's explanation to be unsatisfactory and certainly uncorroborated or particularised.  The assets disposed of include the following:

·caravan (purchased by the husband in … 2017 for $37,000 and sold in … 2018 to a friend for $20,000, equating to the debt on the caravan) I am comfortably satisfied that the vehicle would have an equity of $12,000 – $15,000 if only by the chronology;

·Motor Vehicle G which he says he purchased for $48,000 some 15 years ago.  He gave this vehicle to his sister as 'payment for debts' of Ms Briscoe.  The sister, Ms F, gave evidence by subpoena issued by the wife.  She concedes she has the vehicle.  She says that Ms Briscoe was indebted to her for '$3,000'.  She provided no particularising of the alleged debt.  She gave no evidence of demand of Ms Briscoe for repayment.  She says that the registration of the vehicle was transferred to her.  She opined that the vehicle is worth $18,000 but concedes that she only referenced $5,000 on the transfer of registration.  Mr Briscoe in his evidence suggested that he might have ‘use’ of the vehicle at some time in the future.  The current value of the vehicle is unknown;

·Mr Briscoe says that he sold a truck for $4,000 to his son’s partner and did so in 2016.  The vehicle is still on his property.  The registration was not changed until 2018.  Mr Briscoe apparently still has use of the vehicle.

·Mr Briscoe retained $32,100 in an ANZ Progress Saver account being the balance at separation.  He does not account for the use of these monies;

·Mr Briscoe retained a sum of $10,000 in a Rent Account withdrawn by him following separation (March 2018).  He does not account for the use of these monies;

·Mr Briscoe says that he sold a motorcycle to a neighbour for $1,000.  The motorcycle was registered in the husband's name as of January 2019.  The neighbour did not give evidence;

·The husband’s sworn financial statement references a two wheel bike at $200.  The husband says he has given this away and provides no further explanations;

·The husband retained $38,637 from the payment to him of a long-term R insurance policy apparently maturing on … 2018. His only evidence as to reasonable disbursement of those monies was for $10,000 towards his hearing aids.  The remainder of $28,637 is not accounted for;

·As of October 2018 the mortgage on the Town N properties stood at just $200.  The husband has since utilised a redraw facility whereby the balance is now some $29,200.  He does not account for the expenditure of $29,000; and

·The husband says that he sold a boat and trailer to a son for $4,500.

1. I am comfortably satisfied that these ‘sales’ are shams aimed at reducing the pool and hence the wife’s entitlement.  The evidence of the husband and his sister was unconvincing as to any legitimacy in the transfers.  Some of the items remain in the possession and control of the husband.  I am satisfied that proper “value” was not obtained on their disposal.

2. All of the above are set amounts save and except the value of the caravan and the Motor Vehicle G.  As such, I am of the view that there should be add-backs in respect of the proceeds of sale of the truck ($4,000), the ANZ Progress Saver account ($32,189), the funds in the Rent account ($10,000), the sale of the motorcycle ($1,000), the husband's two wheel bike ($200), the payment from R Insurance ($28,637), the draw down on the mortgage ($29,000) and the proceeds of sale of the boat/trailer ($4,500) which I calculate to total $109,526. 

3. I will deal with the husband's retention of the caravan and the Motor Vehicle G under s.75(2)(o) in circumstances where I simply cannot determine the value of those items.

4. Again, the husband had the benefit of these monies whilst he was employed until December 2018.

5. Consequently, I find the property pool to comprise the following:

B Street, Town C (valuation)	$450,000
M(1) Street, Town N	$215,000
M(2) Street, Town N	$200,000
M(3) Street, Town N	$370,000
Plant & Equipment (Valuers C)	$ 75,350
Husband’s superannuation, added back	$553,438.88
Husband’s remaining superannuation	$   4,228
Wife’s Super Fund K	$ 53,235
Funds paid to the wife from Super Fund S	$   5,500
Assets disposed of by the husband since separation	$109,526
Total Assets	$2,036,277
Liabilities
Mortgage on Town N properties	$  29,000
TOTAL NET	$2,007,277

1. Given the ages of the parties, and my findings as to their lack of employability, I intend to consider the pool on a 'one-pool' basis inclusive of superannuation.  In any event, it is clear that the husband's superannuation in a quantum of $553,438.88 has crystallised.

“Kennon Claim”

1. The wife in her affidavit of 12 March 2019 at [121] and following deposes to being 'regularly subjected to family violence perpetrated on me by Mr Briscoe.  This is an extremely difficult topic for me to talk about and I struggle to articulate what I experienced and the impact on me.’

2. The wife herself suggests that she suffers a diagnosis of Post-Traumatic Stress Disorder and that she is receiving professional counselling.  I have the benefit of the report from Dr H but with the caveats to that report set out above.

3. The wife deposes that she did not make contemporaneous complaints of family violence and 'tried to keep it a secret'.

4. The wife references particular injuries that she suffered including 'five fractured ribs'.  She says that family violence took place 'when Mr Briscoe had been drinking which was at night or on a weekend'.

5. At [130] the wife deposes:

   During our marriage when I was in the role of primary home maker and parent, I also engaged in paid employment outside the family home as well as assisting Mr Briscoe with the running of the farm.  It is part of my case that my non-financial contributions as homemaker and parent were rendered significantly more arduous as a result of Mr Briscoe’s behaviour towards me which included both physical and non-physical violence. 

6. The wife says that she was assaulted by the husband in the presence of the children [158] but that she tried to hide her injuries from the children [160].

7. The wife said that she reported incidents of family violence to the police in 1999 and 2000.

8. The wife gave evidence in general terms and consistent with her affidavit but was not cross-examined to any great extent by the husband.

9. The husband denied family violence in the terms set out by the wife.  The tenor of his evidence was that he conceded the relationship to be a volatile one highlighted by mutual use of alcohol.  He was able to relate some incidents which correspond in time to the wife's claims but where he gave a different and plausible explanation.

10. The wife adduced no evidence from doctors, police or lay persons in respect of her claimed assaults and injuries.  Indeed, the three children of the marriage were on affidavit to be called by the husband until he decided that he would not be relying on their evidence.  The wife did not provide affidavits from the children in respect of her claims of family violence.  I note, however, that the relationship between the wife and the children is, at this time, non-existent.

11. The Full Court (Fogarty & Lindenmayer JJ) in Kennon & Kennon[9] say as follows:

    Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s.79… It is essential to bear in mind the relatively narrow band of cases to which these considerations apply.  To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party.  It is not directed to conduct which does not have that effect and of necessity it does not encompass conduct related to the breakdown of the marriage (basically because it would not have had a sufficient duration for this impact to be relevant to contributions).

    [9] (1997) FLC 92-757 at 84,294

12. Later cases again emphasised the need for an evidentiary nexus between the conduct complained of and the impact on a party’s contributions.  However, more recent Full Courts seen to have placed a different or less onerous interpretation to both nexus and onus.  The Full Court in Keating & Keating[10] demonstrates this more lenient interpretation where their Honours state at [39]:

    This uncomfortable analogy does not illuminate what 'quantification' of the effect of violence on contributions might look like.  It suggests something more than the evidence by the victim's spouse. We struggle to understand what that 'quantification' in evidence might be beyond that given by the victim's spouse as to the incidence and effect of the violence as identified in Spagnardi[11] in the first two dot points at [47].  Furthermore, we fail to see how this third step accords with the decision in Kennon which the Full Court in Spagnardi said governed the situation.  Perhaps the use of the word 'quantification' is infelicitous and has unintentionally added a gloss to the ratio in Kennon when common in truth, the Court in Spagnardi was merely reinforcing the need for there to be an evidentiary nexus between the conduct complained of and the capacity (and or effort expended) to make relevant contributions.  And, depending upon the nature of the violence established, in the absence of express evidence about the effect that violence had on the victim spouses contributions, how difficult it might be for the Court to draw inferences which will establish the evidentiary nexus…

    [10] [2019] famCAFC 46

    [11] [2003] famCA 905

13. Their Honours continued at [42]:

    It is well settled that a party does not require his or her evidence to be corroborated before evidence of family violence can be accepted.  A decade ago the Full Court in Amador & Amador[12] :

    Where domestic violence occurs in a family it frequently occurs in circumstances where there are no witnesses other than the parties to the marriage, and possibly their children.  We cannot accept that a Court could never make a positive finding that such violence occurred without there being corroborative evidence from a third party or a document or an admission.  We have not been referred to any authority in support of such a proposition.

    [12] [2009] 43 famLR

14. Consequently, I respectfully accept the observations of their Honours that family violence is of a type which often occurs 'behind closed doors' without witnesses.  I accept that there is often a reluctance to make contemporaneous complaint to police, doctors, family or friends.  I also accept the difficulties in recollecting dates and times so as to establish with any certainty particulars of either the violence or the relevant contributions.  I therefore approach my consideration mindful of these more recent observations of the Full Court.

15. As such, two principles remain to assist a Court in making determinations of disputed fact.  Firstly, the Court has the ability to see the parties, their witnesses and to have them cross-examined.  This assists in making determinations generally and specifically as to credit and disputed fact.  Secondly, it remains the case that a party making an assertion of fact carries an onus to prove that fact on the balance of probabilities.  It is not and has never been the situation that the recipient of an allegation must prove the negative or his/her innocence. Whilst there are understandable difficulties in the onus of proof in respect of allegations of family violence, those difficulties fade in respect of a proposition that someone should 'prove their innocence'.  Consequently, it remains the case that evidence of contemporaneous complaint and corroborative evidence are of assistance to the Court.  I take it no higher than that.  The wife here does not bring corroborative evidence.  Whilst I am understanding of her reluctance, the wife in her affidavit deposes that the children witnessed the family violence.  Those children are now adults.  She did not attempt to bring them to Court on affidavit or otherwise even as unfavourable witnesses where the husband had them on affidavit.  The wife says that she made complaints to Tasmania Police but does not bring any evidence of police records.  The evidence of the wife to Dr H is, in my view, self-serving and must be assessed in light of her credit generally.  As mentioned above, I did not generally find Ms Briscoe to be a credible witness.  Her own witness, Dr H, contradicted some of the wife's own evidence in important aspects.  The wife consistently denied her own abuse of alcohol in circumstances where there is strong empirical evidence to the contrary.

16. The husband here denied the allegations of family violence but did so whilst conceding that there was a climate of antagonism and alcohol abuse within the marriage. He was able to give plausible explanations to certain incidents related by the wife and in my view, his explanations have a greater ‘ring of truth'.

1. In conclusion, and whilst I am comfortably satisfied that there was much mutual antagonism and, perhaps aggression, within this marriage, I am unable to be satisfied that the wife has made out her case on a balance of probabilities on the assertions of family violence that she claims and where a ‘nexus’ to contribution remains even though, as the Full Court says, inferences are open to trial judges.

Other Contribution Factors

1. This was a long marriage.  Both parties worked long and hard.  They contributed on the farm as well as from their own particular employment.  There are three adult children of the marriage and I am comfortably satisfied that both parents contributed in different ways as parent and homemaker.  In these respects their contributions during the marriage were equal.

2. The husband received an inheritance during the marriage.  He values that inheritance at the time of receipt in 2001/2002 at $153,000.  I accept his evidence in this respect in that it was unchallenged.  Those two properties now sit in the pool with value at $570,000.  It is now some 17 years since his inheritance.  Nevertheless, the same properties still exist and constitute some 27.25% of the property pool.  It is, of course, not proper to simply treat this contribution in isolation and it must be seen within the context of the myriad of contributions made by these parties during a long marriage[13]. 

   [13] Pierce v Pierce (1999) FLC 92-844

3. The wife also received an inheritance of $10,000 during the relationship.

4. In respect of the totality of the contributions of these parties, the husband's inheritance should still, in my view, cause a loading of weight in his favour albeit certainly not on any ‘carry through’ mathematical calculation.  Significantly, the inheritance was in the form of property.  Those same properties remain in the husband's possession and in the property pool to this day.  Whilst they have increased significantly in value, it is the existence of those properties from the inheritance that gives traceable value to the property pool as it sits today and have had a ‘springboard’ effect recognisable in the pool today.

5. In all of those circumstances and despite the inheritance being received some 17 years ago and considering all the contributions on an holistic basis, I am of the view that there should be an adjustment to the husband of 7.5% from the property pool in his favour.

Section 75(2) Factors

1. Both of these parties claim that they are elderly, frail and unemployable.  I agree.  Neither has the responsibility for the financial support of dependent children.  After my distribution of the property pool, each will probably be reliant to a degree on a Centrelink benefit.  These factors should not raise any adjustment on account of either party. 

2. As mentioned above, however, consideration under s.75(2) of ‘other circumstances’ allows me to consider the fact that the husband has retained his Motor Vehicle G motor vehicle which may be valued anywhere above $18,000 together with his disposal of a caravan without any retained equity. I am of the view that these matters should cause a further adjustment in favour of the wife of 1.5% of the pool.

3. Consequently, I am of the view that it is just and equitable to alter the property pool inclusive of superannuation of the parties as to 56% to the husband and 44% to the wife.

4. There is some dispute as to the allocation of assets.  The husband does not want the B Street, Town C property. The wife says that she would also prefer that it be sold.  Consequently, there will be an order for the parties jointly to attend to the sale of the B Street, Town C property and the plant, equipment, stock and hay on that property.  The proceeds of those sales will then crystallise the value of the property pool so as to allow for a distribution of the remaining assets. 

5. The husband will retain the following:

3 properties at M(1), M(2) and M(3) Street, Town N	$ 785,000
Remaining superannuation	$     4,228
Assets disposed of by husband since separation	$ 109,526
Husband’s superannuation – crystallized	$ 553,438
$1,452,192
Mortgage  ($29,000)
TOTAL	$1,423,192

1. It is inevitable therefore that the wife will retain the totality of the proceeds of sale of the B Street, Town C property and the sale of plant, equipment and hay.  There will remain a cash adjustment to be paid by the husband to the wife when these figures have crystalized.

2. Given the husband’s attitude towards the wife’s entitlement thus far, I will Order that he sign all authorities necessary for the sale of the B Street, Town C property and the plant and equipment but make an Order pursuant to s.106A of the Act should be not be cooperative.

I certify that the preceding seventy five (75) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 5 September 2019